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Ohio’s drop-box dispute shows how voting rights groups and Democrats fear Trump’s influence

Pat DeVito, 58, helps collect ballots outside the Cuyahoga County Board of Elections on Oct. 23 in Cleveland. (Dustin Franz for The Washington Post)

Ohio Secretary of State Frank LaRose, a Republican who oversees elections, faced a crucial decision in August. With President Trump proclaiming that mail-in ballots were rigged to defeat him, it was up to LaRose to determine how many ballot drop boxes should be allowed in each of the state’s 88 counties.

LaRose decided the answer was one each. It didn’t matter whether the number of registered voters was 858,000, as in Cuyahoga County, or 8,000, as in rural Noble County.

An alliance of voting and civil rights groups and individuals, noting that federal recommendations call for one drop box for every 15,000 to 20,000 voters, sued LaRose, declaring that his action was the definition of voter suppression. At a time when many people don’t want to go to the polls because of the coronavirus pandemic, or don’t trust the U.S. Postal Service to deliver ballots on time, the advocacy groups said drop boxes are vital.

The lawsuit that followed became one of the most bitter and revealing legal fights of this election year. The Trump campaign and an array of Republican Party committees took LaRose’s side, while the NAACP, the American Civil Liberties Union and other groups in effect backed the Democratic view.

The battle over drop boxes in Ohio underscores the fears of Democrats and voting rights advocates about the influence that Trump’s false claims about fraud via mail-in ballots and drop boxes could have over voters’ ability to cast a ballot, as well as the counting of ballots. After a federal judge sided with the voting rights groups, Republicans took their case to a three-judge appeals court, which effectively shut down the effort in a 2-to-1 ruling.

Subodh Chandra, an attorney who represented the A. Philip Randolph Institute of Ohio and other advocacy groups, said the case is part of a pattern by Republicans seeking to limit ballot access in their favor.

Republican efforts to make voting more difficult “are all mathematically calculated to shave off a disproportionate percentage of metropolitan-urban-dwelling, minority and poor voters, that is, voters most likely to vote Democratic,” Chandra said via email. “The ballot-drop-box scheme, for example, hits hardest the voters in the biggest Ohio counties, where the most minority voters live.”

In an interview with The Washington Post, LaRose defended his decision to limit drop boxes, saying the law didn’t allow drop boxes at multiple locations per county. He said he has “debunked” Trump’s false assertion that mail-in ballots are subject to widespread fraud but nonetheless blamed Democrats for spreading concern about the U.S. Postal Service, which in turn led to calls for more drop boxes.

The issue is particularly important in the Buckeye State, where extraordinary, blocks-long lines of voters appeared in Cleveland and elsewhere when weekend early voting began Saturday. No Republican has won the presidency without winning Ohio since the advent of the two-party system, and only two Democrats have ascended to the White House without such a victory.

The voting rights groups cited the need for more drop boxes by highlighting the concerns of people such as Beatrice Griffin, an 81-year-old psychoanalyst from the Cleveland suburb of Shaker Heights, who agreed to become a plaintiff.

Griffin, who had voted in person on every Election Day since 1960, said that because of her age and underlying conditions, she does not feel safe going to the polls. Nor, she said, was she comfortable mailing in her ballot, because she believes Trump is seeking to “undermine the post office.”

So, “I thought drop boxes is just what we need,” she said, and agreed to join the lawsuit. Although she was able to put her ballot in Cuyahoga’s drop box, she said, many more were needed to ensure that hundreds of thousands of voters across Ohio are not disenfranchised.

Wide use of drop boxes

The decision on how many drop boxes would be placed in each county was in the hands of LaRose, a former member of the U.S. Special Forces who was elected as Ohio’s secretary of state in 2018.

Under state law, voters can cast their ballots in person through early voting or on Election Day, or by absentee ballot, either through the mail or personally delivered to the head of the local elections board. LaRose interpreted that to mean that a drop box could be placed at every county board of elections, and that he believes he would need “additional clarity in order to expand drop boxes,” his spokeswoman, Maggie Sheehan, said in a statement.

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Drop boxes have been widely adopted this year as part of the country’s shift toward mail voting during the coronavirus pandemic. Nearly 40 states and the District of Columbia are allowing voters to use them to return mail ballots for the general election, according to a tally by The Washington Post. Other than Ohio’s one-box-per-county limit, Texas has restricted counties from offering more than one drop-off site, while other states that allow them use them much more widely.

Under LaRose’s Aug. 12 directive, only one drop box would be allowed per county, regardless of population. (An exception was later made for a second, temporary box down the street from the Cuyahoga election board’s headquarters.)

Five days later, Trump followed up his previous criticism of mail-in ballots by questioning on Twitter whether drop boxes would result in a “rigged” election. Then, on Aug. 23, the president directly linked drop boxes to the opposition, tweeting that “Democrats are using Mail Drop Boxes, which are a voter security disaster. Among other things, they make it possible for a person to vote multiple times. Also, who controls them, are they placed in Republican or Democrat areas? They are not Covid sanitized. A big fraud!”

Trump’s claims were false. A voter would not need to touch the drop box to deliver the ballot, and there is no evidence that drop boxes spread the virus.

Nor is there evidence that Democrats were enabling anyone to vote more than once. Twitter said Trump had “violated the Twitter Rules about civic engagement and election integrity.” Nonetheless, it did not delete the tweet.

Democrats said Trump was making the false claim because he viewed drop boxes as detrimental to his reelection bid. They called for the use of many more drop boxes to make up for concerns that voters would be reluctant to mail their ballots, given Trump’s claim that the U.S. Postal Service couldn’t be trusted with them.

LaRose, meanwhile, came under criticism from Democrats who said he was trying to stifle their vote. Nana Watson, the president of the Columbus branch of the NAACP, said in an interview that she began calling LaRose “Mr. Voter Suppression.”

A few days after Trump’s tweets about drop boxes, the Ohio voting rights groups sued LaRose in federal court, seeking permission to place more than one drop box per county.

In a television interview at the time, LaRose initially sounded open to the idea of more drop boxes if a local board approved such a plan. “I think it would be a great thing if . . . the state legislature were to authorize it, or a judge’s order,” he said. “I would be happy to see more drop boxes in more places throughout the state. As long as it had the bipartisan support of those boards of elections” and the locations were secure.

Two weeks later, the two Republicans and two Democrats on the board of elections in Cuyahoga County, which includes Cleveland, voted unanimously to establish drop boxes at six locations other than by the board of elections, all of them at public libraries monitored by local officials. LaRose’s office promptly informed the county that it couldn’t establish the extra drop boxes because of the pending litigation.

Two days later, on Sept. 16, the Trump campaign and Republican Party committees filed a 17-page memorandum as intervenors in the case, saying in an argument that echoed the president that “drop boxes exacerbate the risk of fraud and illegal ballot harvesting.” Sheehan, when asked whether LaRose or anyone in his office spoke to the Trump campaign or Republican committees about the case, responded, “No.”

The case went to U.S. District Judge Dan Aaron Polster. He cited the difficulty of voting during the pandemic and the “reasonable concern” about whether the U.S. Postal Service could deliver ballots on time, meaning that drop boxes were the reliable alternative. He wrote that 15 percent of Cleveland’s voters, “who are primarily poor and person of color,” would have to travel more than 90 minutes to the drop box at the board of elections.

As a result, Polster wrote, LaRose’s refusal to allow more than one drop box per county “deprives a significant number of Ohio voters of ready access to a drop box and creates a strong likelihood of disenfranchisement.”

Polster ruled on Oct. 8 that LaRose could not stop Cuyahoga County from collecting ballots at the libraries, saying the secretary of state had not given “any legitimate reason” to stop such a plan that would expand voting opportunities.

Stipulations met

Voting rights advocates said LaRose’s key stipulations appeared to have been met: a board of elections had unanimously approved additional drop boxes, and a judge had effectively upheld its right to do so.

Yet within hours, LaRose asked the U.S. Court of Appeals for the 6th Circuit to issue an injunction against Polster’s ruling, joined by the Trump campaign and Republican committees. The court imposed the injunction in a 2-to-1 ruling, with the case set to be heard after Election Day, effectively making the lawsuit moot. The majority said in their opinion that “Ohio’s restrictions are reasonable and non-discriminatory” and the state “offers many ways to vote.”

The dissenting judge, Helene N. White, excoriated what she called LaRose’s change of mind, calling his action “an eleventh-hour directive issued unilaterally by a single elected official to disrupt the established plans of bipartisan county boards of elections.”

The plaintiffs, facing the possibility of $40,000 in court costs if they lost the case, agreed to drop the matter, which was formally dismissed on Oct. 22.

In the aftermath of the ruling, critics have seized upon the fact that one of the judges in the majority, Amul Thapar, was nominated to his position by Trump and, according to the Associated Press, was interviewed by the president in 2018 about a potential nomination to the Supreme Court. Thapar could once again be on the shortlist if Trump is reelected and a Supreme Court opening occurs.

Under the federal judicial code of conduct, a judge is required to stay out of “any proceeding in which his impartiality might reasonably be questioned.” James Schuster, one of the plaintiff lawyers, said Thapar should have withdrawn from the case.

“With the Trump Campaign as a party to the Ohio ballot drop box litigation, Thapar, I believe, owed it to the integrity of the U.S. Judiciary to know his impartiality toward the case might be reasonably questioned,” Schuster said in an email. “He should have known better.”

Thapar did not respond to a request for comment.

As for the need for drop boxes, the evidence in Cuyahoga County is that demand has soared. Of the 180,000 ballots returned as of last week, half were hand-delivered by voters to the drop boxes and officials at the board of elections, according to Inajo Davis Chappell, a Democratic member of the panel.

“What that tells me is that people are suspect of the mail, and this election is so incredibly important, people will stand in line and drop off their ballot,” she said. “This is a no-brainer that voting should not be this hard in a pandemic.”

Elise Viebeck and Alice Crites contributed to this report.