Photo by Element5 Digital on Unsplash
J.P. Burleigh, Associate Member, University of Cincinnati Law Review
I. Introduction
Ohio was set to conduct its primary election on Tuesday, March 17th. But on the evening of March 16th, the state’s executive branch postponed the election to prevent the spread of coronavirus. The delay contradicted an earlier statement from Governor DeWine and a state judge’s order, both of which said the executive branch did not have such power. Nevertheless, on the morning of election day, the Ohio Supreme Court upheld the delay in an unsigned opinion, leaving Ohioans to wonder: does the executive branch really have the authority to postpone elections? As this article will discuss, the answer is no.
II. Background
On March 9th, 2020, Governor DeWine issued Executive Order 2020-01D, declaring a state of emergency in Ohio due to three confirmed cases of coronavirus in Cuyahoga County.[1]
In announcing the order, Governor DeWine encouraged Ohioans to vote early in the upcoming election, so as to minimize the spread of infection from in-person voting.[2] The election was set for Tuesday, March 17th.[3] On the ballot would have been partisan primary selections for President, the U.S. House, the Ohio legislature, the Ohio courts, and more.[4]
One week after the declaration of emergency, Governor DeWine held a press conference on the afternoon of March 16th, the day before the planned election.[5] He explained that the coronavirus was spreading in Ohio, with fifty confirmed cases.[6] Conducting the election, he said, would be dangerous and go against federal guidelines.[7] He proposed delaying the election until June 2nd, but conceded he did not have the power to do so unilaterally.[8] He announced he would instead support a lawsuit asking a court to delay the election, and that Attorney General David Yost would not contest the suit while representing the state.[9]
Attorney General Yost had already reached out to two elderly women to file the lawsuit Governor DeWine described.[10] At 5:37 PM, the women filed a complaint in the Franklin County Court of Common Pleas.[11] They asked Judge Richard Frye for a temporary restraining order to prevent the election from proceeding.[12] At a 6:20 PM hearing, both the women and the state argued that voters would have to choose between protecting their health and exercising their voting rights.[13] Two candidates for election opposed the delay, asserting that only the legislature could change a date set by statute.[14] Judge Frye sided with the candidates and declined to order a delay.[15] In doing so, he said that there were “too many factors to balance in this unchartered territory to say that we ought to take this away from the legislature and elected statewide officials and throw it to a common pleas court judge in Columbus twelve hours before the election.”[16]
Within hours of the failed lawsuit, the executive branch issued two orders that effectively delayed the election. First, Director of Health Dr. Amy Acton issued a Director’s Order closing all polling stations, citing her statutory authority to make special orders for preventing the spread of disease.[17] Second, Secretary of State LaRose published Directive 2020-06 suspending the election until June 2nd, relying on Dr. Acton’s order to close the polls.[18]
A judicial candidate in Wood County petitioned the Ohio Supreme Court for a writ of mandamus to strike down Secretary LaRose’s order and to permit the election to proceed.[19] Secretary LaRose opposed the petition, arguing he acted lawfully “by complying with an order from Ohio’s Health Director during a pandemic.”[20] On election day morning, the Ohio Supreme issued a decision without an opinion declining to issue the writ, effectively upholding the postponement.[21]
On March 22nd, Governor DeWine’s office followed the lead of California, New Jersey, Illinois, and New York, announcing a formal stay-at-home order.[22] Three days later, the General Assembly passed an emergency relief bill that, among other things, voided the Secretary’s order and planned for an all-mail-in primary election on April 28th.[23] The Governor signed that bill into law on March 27th.[24] The election proceeded according to the legislature’s plan this past week.[25]
III. Law
Ohio’s Revised Code sets the dates for elections under § 3501.01. Primary elections usually occur on the first Tuesday after the first Monday in May, with one exception.[26] In years with a presidential primary, the primary election occurs on the Tuesday after the first Monday in March.[27] General elections occur on the first Tuesday after the first Monday in November.[28] Federal law also sets that same day for general elections involving federal offices, which occur in even numbered years.[29]
The General Assembly, which consists of a Senate and House of Representatives, has the legislative power to enact and change the Revised Code.[30] The Ohio Supreme Court has held that “public elections belong to the political branch of the government” and are therefore “a matter of political regulation,” which is to say that the General Assembly controls elections by law.[31] In outlining the legislative power, the Ohio Consitution allows the General Assembly to pass emergency laws that are necessary to protect public health and safety.[32]
Regardless of whether an emergency exists, the Ohio legislature has broad power to regulate for public health.[33] Statutes delegate some of that power to the Department of Health, led by the Director of Health.[34] The department has “ultimate authority in matters of quarantine and isolation, which it may declare and enforce,” and the department may make special orders “for preventing the spread of contagious or infectious disease.”[35] However, no statute expressly delegates authority to change the date of an election. Further, § 18 of the Ohio Bill of Rights states, “No power of suspending laws shall ever be exercised, except by the General Assembly.”
IV. Analysis
Any executive authority to postpone elections could only apply to a primary election. Because this is a presidential year, federal law dictates the date of the general election. If the Governor tried to delay the November election, courts would strike the effort down under the Supremacy Clause of the U.S. Constitution.[36] But Ohio conducts primary elections on its own schedule, even for primaries involving federal offices. As explained above, the date of the primary is set by statute; therefore any change to that date is a change in the law itself. That change should come from the legislature, the body tasked with creating and changing law, unless the legislature has delegated that authority elsewhere.
No statute expressly the grants the executive branch the power to change the election date, and Governor DeWine admitted so in his March 16th announcement. The question, then, is whether the executive branch can alter a statute and set a new election date by relying on an order from the Department of Health.
On the one hand, relying on the Department of Health makes intuitive sense: the Director of Health has authority to protect the public from disease, and letting the public go to the polls would be unsafe; once she closes the polls, the Governor must ensure that elections go on somehow, and that requires changing election procedure. But this formal view overlooks the reality that the Director of Health is appointed by and serves at the pleasure of the Governor. Dr. Acton has been working with Governor DeWine every step of the way throughout this crisis. Dr. Acton is functionally an arm of Governor DeWine, and he almost certainly directed her to close the polls.
Notably, Dr. Acton’s order did not postpone the election, but merely closed the polls. This suggests that Governor DeWine’s office understood that postponing the election goes beyond protecting public health. Dr. Acton can close the polls to prevent the spread of disease, but setting a new date altogether is a political act—one the Governor initially claimed was beyond his power. The executive branch’s authority does not change which circumstances; either the executive can postpone elections, or it cannot. Dr. Acton’s order has no effect on the constitutional balance of power between branches of Ohio’s government. Changing the election date is not only a political act but a suspension of law—an act the Ohio Bill of Rights says can only come from the General Assembly.
V. Conclusion
The coronavirus pandemic is not only a crisis of public health but of public confidence in government. In this time of uncertainty, all elected officials should take care to respect separation of powers and preserve rule of law. Governor DeWine’s initial position was correct: the executive branch has no power to delay elections under Ohio law. Such a decision can only come from the General Assembly. Governor DeWine should have convened the legislature instead of going to court. Elections must operate under established rules; no one should be able to change election procedure at the eleventh hour unless authorized by law. Even well-intentioned violations of law can undermine citizens’ faith in democracy, and protecting public health should not come at the cost of public trust.
[1] Tom Bosco and Matthew Thomas, 3 COVID-19 cases confirmed in Ohio, DeWine declaring state of emergency, ABC 6 (Mar. 9, 2020), https://abc6onyourside.com/news/local/gov-dewine-ohio-has-3-confirmed-covid-19-coronavirus-cases; Mike DeWine, Executive Order 2020-01D, Governor of Ohio (Mar. 9, 2020), https://perma.cc/9MR4-R8L9.
[2] Bosco and Thomas, supra note 1.
[3] Gabe Rosenberg, Ohio Voting Guide: What to Know About the 2020 Election, WOSU (Apr. 8, 2020), https://radio.wosu.org/post/ohio-voting-guide-what-know-about-2020-election.
[4] Id.
[5] Laura Hancock and Andrew J. Tobias, Gov. Mike DeWine wants to postpone Ohio’s Tuesday primary election until June 2 due to coronavirus, Cleveland.com (Mar. 16, 2020), https://www.cleveland.com/open/2020/03/ohios-tuesday-primary-election-cancelled-till-june-2-due-to-coronavirus.html
[6] Id.
[7] Id.
[8] Governor Mike DeWine – 3-16-2020 – COVID-19 Update, The Ohio Channel (Mar. 16, 2020), https://perma.cc/H7AG-VQN5.
[9] Sam Allard, Ohio Gov. Mike DeWine Proposes Postponing Tuesday Primaries, Final Decision Falls to Courts, Cleveland Scene (Mar. 16, 2020, 3:49 PM), https://www.clevescene.com/scene-and-heard/archives/2020/03/16/ohio-gov-mike-dewine-proposes-postponing-tuesday-primaries-final-decision-falls-to-courts.
[10] Sharon Coolidge and Dan Horn, Ohio election lawsuit: Meet the 81-year-old woman who sued to stop Ohio’s primary, The Cincinnati Enquirer (Mar. 16, 2020, 8:29 PM), https://www.cincinnati.com/story/news/politics/2020/03/16/ohio-election-lawsuit-primary/5064629002/.
[11] Complaint, Reardon, et al. v. LaRose, 20-CV-002105 (C.P. Ohio 2020).
[12] Motion for Temporary Restraining Order and Preliminary Injunction, Reardon, et. al. v. LaRose, 20-CV-00215 (C.P. Ohio 2020).
[13] Chris Wetterich, Court will not stop Ohio’s election on Tuesday, Cincinnati Business Courier (Mar. 16, 2020, 8:44 PM), https://www.bizjournals.com/cincinnati/news/2020/03/16/court-will-not-stop-ohios-election-on-tuesday.html.
[14] Id.
[15] Id.
[16] Id.
[17] Amy Acton, Director’s Order, Ohio Department of Health (Mar. 16, 2020), https://perma.cc/5KPU-Z6UC, citing R.C. 3701.13.
[18] Frank LaRose, Directive 2020-06, Office of the Ohio Secretary of State (Mar. 16, 2020), https://perma.cc/SS8T-NDBU.
[19] State ex rel. Speweik v. Wood Cty. Bd. of Elections, Case No. 2020-0382 (Ohio 2020).
[20] Answer, Speweik. https://perma.cc/K3EU-3L5T.
[21] Decision, Speweik. https://perma.cc/PAT5-DB6Q.
[22] Alicia Lee, These states have implemented stay-at-home orders. Here’s what that means for you, Cnn (Apr. 7, 2020, 5:23 PM), https://www.cnn.com/2020/03/23/us/coronavirus-which-states-stay-at-home-order-trnd/index.html.
[23] H.B. 197, 133rd Gen. Assemb. (Ohio 2020).
[24] Governor DeWine Signs House Bill 197, Governor of Ohio (Mar. 27, 2020), https://governor.ohio.gov/wps/portal/gov/governor/media/news-and-media/dewine-signs-house-bill-197.
[25] Ohio Primary Election Results, Fox 8 (Apr. 28, 2020, 8:13 PM), https://fox8.com/news/ohio-primary-election-results/.
[26] Ohio Rev. Code Ann. § 3501.01(E)(1).
[27] Ohio Rev. Code Ann. § 3501.01(E)(2).
[28] Ohio Rev. Code Ann. § 3501.01(A).
[29] 2 U.S.C. § 7.
[30] Ohio Const., Art. II § 1.
[31] MacDonald v. Bernard, 1 Ohio St. 3d 85 (Ohio 1982).
[32] Ohio Const., Art. II § 1d.
[33] Kraus v. Cleveland, 163 Ohio St. 559, 562-62 (Ohio 1955).
[34] Ohio Rev. Code Ann. § 3701.13.
[35] Id.
[36] U.S. Const., Art. VI.
