COLUMBUS, Ohio — A Franklin County judge was wrong when he ordered Ohio Secretary of State Frank LaRose to accept electronic absentee ballot applications for the upcoming presidential election, a three-judge Ohio appellate court panel unanimously ruled Tuesday while overturning the previous decision.
However, all three judges said LaRose, a Republican, under state law has the discretion to do so were he to so choose at some point in the future.
Three judges from the 10th District Court of Appeals said they agreed with arguments from the Ohio Democratic Party that the state law doesn’t prohibit elections officials from accepting applications for absentee ballots via email or fax. Bu two of the judges said the Ohio Democratic Party didn’t demonstrate a “right” under the law to “unlimited methods for delivery of their applications” or prove that LaRose had a legal duty to offer applications option beyond in-person or mail delivery of applications.
In the majority opinion, Judge William A. Klatt wrote, and Judge Frederick D. Nelson agreed, there is legal precedent that gives officials discretion to interpret ambiguous laws, as long as they do so reasonably. They also sided with arguments from LaRose that changing the state’s elections protocols to allow non-military voters to submit ballot requests electronically so close to the election could pose a security risk.
“At least on the evidence presented to date, the secretary’s decision to continue the long-established practice of mail and in-person return of these applications, instead of jeopardizing the security and administration of the election by implementing a new procedure to allow electronic return of the applications, cannot be deemed unreasonable,” wrote the ruling signed by the judges, both Republicans.
Judge Julia L. Dorrian, a Democrat, said she agreed with the decision to overturn the lower court, but gave different reasoning.
She she agreed with LaRose’s arguments that changing elections procedures so close to the election could pose a security risk or cause confusion in administering the election, and agreed that nothing in the law required him to accept electronic absentee applications. But, she said she disagreed that LaRose acted reasonably in choosing not to accept electronic applications in the first place.
The case could still be appealed, so the issue may not be completely settled. The election is Nov. 3, while early voting begins on Oct. 6.
Another lawsuit filed by the Ohio Democratic Party also is pending in the 10th District appeals court. In that case, ODP seek to force LaRose to allow county elections boards to set up more than one ballot drop box. LaRose has appealed a lower court ruling from a Franklin County judge who ruled in ODP’s favor. There’s also a pending federal lawsuit on ballot drop boxes, although the judge overseeing that case said he’s going to wait for the state case to play out further before stepping in.
LaRose for years has called on Ohio to allow voters to request absentee ballots online, instead of the current system, which requires them to get a paper form, fill it out and physically deliver it to their county elections office. The request hasn’t gotten anywhere in the state legislature.
But he’s said Ohio law prevents him from accepting electronic absentee applications.
The Ohio Democratic Party sued to allow emailed requests in Ohio, arguing state law doesn’t say anything about them. They got an early court victory earlier this month in Franklin County, where a judge agreed with them.
Here is Monday’s complete ruling: