CNN reports: “DeWine announced Monday afternoon that he was recommending the primary be moved. The governor, though, said he did not have the power to postpone the primary unilaterally.” He also made clear the ballots already cast would be tabulated and preserved. The Franklin County judge (Note to file: Remember how important even lower-court state judges can be) rejected the governor’s good-faith plea that voting facilities could not comply with the Centers for Disease Control and Prevention recommendation to prevent gatherings of 50 people or more.
For starters, the CDC did not issue a regulation or “order”; it made a recommendation. Using the CDC’s suggestion as a reason to postpone a duly authorized state election lacks any legal basis. In this case, not even President Trump recommended putting off elections. (“President Trump said Monday that he did not advise states to postpone primary elections, calling the delays ‘unnecessary.’ The comment came shortly after DeWine announced his recommendation.”)
Moreover, as the Columbus Dispatch reported, “Common Pleas Court Judge Richard Frye said it would be a ‘terrible precedent’ for a judge to step in 12 hours before polls open to rewrite the election code.” The judge offered, “There are 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 12 hours before the election.”
Nevertheless, DeWine took the unusual step of announcing that regardless of the court ruling, he would close polling places. This was an unprecedented and lawless step for a chief executive, one that caused havoc throughout the system. Was the election on or off?
In a chaotic interval between the governor’s announcement and the scheduled opening of the polls at 6:30 a.m., the state supreme court weighed in to side with the governor. Four justices — two Democrats and two Republicans — agreed to delay the primary. Constitutional scholar Laurence Tribe warns, “Postponing elections could become dangerously easy. The temptation is one worth trying hard to resist.”
Ohio’s action sets a dangerous precedent. We have conducted elections during wartime. New York City conducted a mayoral election just weeks after the terrorist attacks of Sept. 11, 2001. Tennessee conducted its primary on March 3 just after devastating tornadoes in the Nashville area. The principle is clear: We do not permit extraneous events to override the democratic process. Especially in the age of Trump, when so many norms and institutions have been under attack, the primacy of timely, regular elections must be preserved.
Former federal prosecutor Joyce White Vance tells me that, instead of delaying elections, state officials must take steps to keep voters safe while protecting their right to vote. Mail-in ballots and no-excuse-necessary absentee voting have proved successful. However, the threat posed by the coronavirus pandemic presents us with an urgent need to reform voting going forward. “State legislatures should push through laws modeled on states that already have them instead of stopping elections from going forward,” Vance recommends.
For decades, we have maintained an antiquated election process that presents one hurdle after another (especially for the poor, the elderly, the sick and the hourly-wage workers) to casting ballots. In recent years, Republicans have propagated more barriers in what seems like a transparent attempt to suppress votes. They have passed voter-ID bills, curtailed early voting, closed polling places, purged voting rolls and more. Perhaps now, when Republican and Democratic voters alike, rich and poor, black and white, face a real barrier to voting we can finally pass automatic registration and voting by mail nationwide.
The other three primaries are underway Tuesday morning, as they should be. While turnout might be affected, we should demonstrate that, even under adverse circumstances, democracy perseveres.