COLUMBUS, Ohio (AP) — Attorneys on both sides faced pointed pushback from a panel of appellate judges Thursday as the legal fight over whether Ohio should allow electronic absentee ballot applications continued.
The Ohio’s 10th District Court of Appeals is weighing whether to uphold a trial judge’s Sept. 11 decision blocking a directive issued by Republican Secretary of State Frank LaRose that said the applications could be submitted only in person or by mail.
The three-judge panel convened virtually to hear oral arguments, which Judge William Klatt described as “very enlightening.” A decision will be made as quickly as possible, he said.
Many of the questions centered on Franklin County Common Pleas Judge Stephen McIntosh’s decision blocking LaRose’s directive and ordering him to allow voters to apply for absentee ballots for the November presidential election by electronic means, including fax and email.
Judges asked LaRose’s attorney, Renata Staff, and an attorney for the Trump campaign and other Republican committees how they could defend the reasonableness of the directive and whether outside factors like the coronavirus pandemic and cutbacks at the U.S. Postal Service could be taken into account.
“Why is it reasonable not to allow those methods when, I think an argument could be made, that in people’s normal lives and in the course of normal business, delivery is accomplished by those means all the time?” Klatt asked.
Republicans’ attorney, Ryan Harmanis, said state lawmakers had the ability to include those methods in the law, but they didn’t. He said the issue is ultimately a policy decision and not a matter for the courts.
Democrats’ attorney, Don McTigue, disagreed, arguing that, since the law is silent on what methods can be used to return ballots, it was unreasonable for LaRose to impose a restriction.
The secretary of state is bound by rules that require election laws to be “liberally construed in favor of access to voting” and not to make unduly technical interpretations.
“What we would say her is essentially a secretary of state, in construing essentially a silent statute on methods of delivery, he has failed to follow those two primary rules of statutory construction that apply in election matters,” McTigue said.
Attorneys on both sides brought up numerous outside factors impacting the case — voter access and convenience by Democrats, security risks and administrative burden by Republicans. Yet they said those shouldn’t be legally considered.
Judge Julia Dorrian asked, for example, “Does the secretary have that broad authority to take into consideration circumstances such as timing or budget or technological capabilities or COVID or USPS delays.”
Harmanis’ answer was no, statutes cannot be interpreted differently based on different outside factors but should be consistent.
Despite strong lobbying by LaRose, Ohio still lacks an online ballot request system, opting instead to mail paper absentee ballot applications to every registered voter. As of now, county election boards are only accepting completed applications by mail or in person.
The state deadline to submit an application is Oct. 31, though that, too, has proven problematic.
The date falls too close to the election to guarantee that a voter will be able to receive and return their ballot by the deadline, so LaRose has joined the U.S. Postal Service is urging Ohioans to get their applications in no later than Oct. 27.