Ohioans have four ways to cast a ballot in this (currently underway) Presidential election: (1) vote in person on election day, (2) vote in person at some point in the four weeks leading up to election day, (3) mail in an absentee ballot; or (4) drop off an absentee ballot at a drop box.  Given the ongoing COVID-19 pandemic in Ohio and across the U.S., Ohio voters are reasonably anxious about casting their vote in-person—options one and two—as detailed in the A. Philip Randolph Institute of Ohio, et al. v. LaRose district court proceedings (Polster, J., coincidentally).  Election officials anticipate a record 2.4 million Ohioans will request absentee ballots for the November 3, 2020 election.  Ohio voters may accordingly be equally anxious about the U.S. Postal Service’s ability to handle such unprecedented volume of election mail (option three)—a looming challenge that Ohio Secretary of State Frank LaRose acknowledged in the district court he is but “cautiously optimistic” the Postal Service will be able to meet.  Consequently, the fourth option—dropping off an absentee ballot at a drop box—has emerged as the preferred method of voting for “a large number of Ohio voters.”  (Polster, J.)

Shortly before absentee voting was set to begin in Ohio, Secretary LaRose issued Directive 2020-16 which, among other things, limits drop box locations to one per county.  To be sure, the Secretary of State has overall control of elections in Ohio, and possesses the statutory authority to issue election directives.  But, ordinarily, the 88 bipartisan county boards of elections determine the location of absentee ballot drop boxes, consistent with their statutory authority to “control the local aspects of elections,” and duty to “fix and provide the places for registration and for holding primaries and elections,” as noted by Judge White in her dissenting opinion in the Sixth Circuit’s Friday evening decision on the matter.  “This makes sense,” she explains, as “county populations, geographic dimensions, and infrastructure vary considerably throughout the state.”  (highlighting Cuyahoga County’ 850,000 voters to Noble County’s fewer than 10,000.)

District Court Enjoins Directive 2020-16

Given the “unprecedented juxtaposition of the worst pandemic in a century coupled with reasonable concern and anxiety over the ability of the U.S. Postal Service to handle what will undoubtedly be the largest number of absentee voters in Ohio’s history,” (Polster, J.), a collection of non-partisan civil rights organizations and individual voters challenged Directive 2020-16 as an unconstitutional infringement on Ohioans’ right to vote.  The district court agreed, and enjoined Secretary LaRose from enforcing Directive 2020-16 insofar as it prohibits a county board of elections from (1) installing a secure drop box at a location other than the board of elections office, and (2) deploying its staff for off-site ballot delivery.

The district court analyzed plaintiffs’ injunction request under the Anderson-Burdick framework, which weighs the “character and magnitude” of the injury to plaintiffs’ First and Fourteenth Amendment rights against the precise interests of the State and the extent to which the State’s rule burdens those constitutional rights.  When those rights are subjected to “severe” restrictions, the rule is subject to strict scrutiny—it must be narrowly drawn to advance a compelling State interest.  But if the rights are subjected to “reasonable, nondiscriminatory restrictions,” the regulation is subject to the far more lenient rational basis review.  Between these two extremes, Anderson-Burdick calls for intermediate scrutiny—weighing the burden imposed by the State’s regulation against the State’s precise interests, considering also the extent to which the State’s interests make it necessary to burden the plaintiff’s rights.

The district court determined that intermediate scrutiny was appropriate—plaintiffs presented credible and uncontradicted evidence that Directive 2020-16, by limiting each county in Ohio to a single drop box location with no regard for its population or demographics, “significantly burdens the right to vote, and, ultimately may have the effect of deterring many people from voting or forcing them to risk their health by voting in-person.”  The burdens in Cuyahoga County were particularly acute, with its large number of registered voters (approximately 850,000) and substantial low-income and minority population that would have to travel more than 90 minutes to deliver their ballot, to be met only with a “massive traffic jam and delay” at the drop box location that would “likely lead to many voters giving up and losing their ability to vote.”

The district court found unpersuasive the Secretary’s justifications for the significant burdens of Directive 2020-16: (1) giving each voter the same opportunity to securely cast a ballot; and (2) the risk of fraud posed by multiple drop boxes.  The district court reasoned that because the 88 Ohio counties are “not equal in population or in geographic size,” “giving all voters an equal opportunity” to securely cast their ballots “would require multiple drop boxes in heavily populated counties to account for their population” (noting federal guidelines that call for one drop box for every 15,000-20,000 voters).  The district court similarly rejected the Secretary’s uniformity argument (one box for every county), reasoning that “uniformity” cannot carry the day in the face of arbitrary and disparate treatment “valuing one person’s vote over that of another.”  Nor was there any evidence in the record that multiple drop boxes “cannot be as secure as the single drop box required at each board of elections” office.  And no evidence of fraud from multiple drop boxes was introduced at the hearing “to support the conclusory reference” in the Secretary’s brief.

Applying intermediate scrutiny, the district court determined “it is not even a close question.  In fact, the Secretary has not produced sufficient evidence to support the Directive even under rational basis analysis.”  Accordingly, the court found a likelihood of success on plaintiffs’ merits, and enjoined enforcement of Directive 2020-16.

Sixth Circuit Stays District Court’s Injunction

In an unpublished opinion issued Friday, a split Sixth Circuit panel (Griffin, Thapar, J.J.; White, J., dissenting) stayed the district court’s injunction pending interlocutory appeal.  The majority opinion by Judge Griffin conducted its own Anderson-Burdick analysis and came to the exact opposite conclusion.  First, the majority determined that because there are four methods of voting in Ohio, the Secretary’s rule impacting one method of voting was not a substantial burden on the right to vote and was subject to rational basis review.  Going a step further, the majority noted that even if intermediate scrutiny applied, Directive 2020-16 would still “pass constitutional muster.”  As support, the majority cited—but did not analyze—the Secretary’s asserted justifications for Directive 2020-16 of uniformity, efficiency, accuracy, and security (precisely the “conclusory” justifications the district court ruled failed to satisfy even rational basis review given the record).

And because “Ohio offers many ways to vote,” the majority explained, staying the district court’s injunction of the directive “is unlikely to harm anyone.”  The majority did not discuss the risks posed by COVID-19 for in-person voting or the “reasonable concern” over the Postal Service’s ability to handle the unprecedented number of mail-in absentee ballots.

Judge White dissented.  Acknowledging the record, the dissent explained that “[p]laintiffs presented considerable evidence that voters in the largest counties will suffer significant burdens as a result of the Secretary’s directive limiting the ability of the county boards to implement bipartisan plans tailored to best administer efficient, safe, and secure voting in their counties.”  In the dissent’s view, “[t]he Secretary’s asserted interest in uniformity ignores that each county has its own bipartisan election commission with knowledge of the county’s needs.  Uniformity in the number of ballot drop-off locations across counties with 850,00 voters and counties with less than 10,000 voters promotes unequal, rather than uniform, voting opportunities.”  In closing, the dissent noted that resolution of plaintiffs’ appeal won’t occur until long “after their right to vote has been disrupted,” in contravention of Supreme Court precedent and undercutting the majority’s contention that harm wouldn’t occur by staying the injunction.