A. Philip Randolph Institute of Ohio v. LaRose

Calling it “now settled law that off-site drop boxes are neither prohibited nor compelled in Ohio,” Polster dismissed the federal lawsuit without prejudice — that is, leaving open the possibility that the challengers could still refile their complaint if necessary. He explained that, in his Oct. 5 directive, LaRose had “authorized any board to deploy its staff to receive ballots at sites other than the board office.” This would allow, Polster reasoned, the elections board in Cuyahoga County to receive absentee ballots at public libraries. Moreover, he added, “any other board in Ohio that votes to do so may deploy its staff to receive ballots off-site.” Although collecting ballots off-site “may not have all the advantages of off-site drop boxes, such a program alleviates many of the concerns raised at the hearing … [t]here is no evidence,” Polster concluded, that LaRose is currently blocking any elections board “from doing something it voted to do to protect the voting rights of its citizens with respect to off-site drop boxes or off-site delivery of ballots. Therefore, there is no problem that requires an injunction.”

Polster also “fervently” hoped that, “now that voting has begun, the litigation over drop boxes and off-site ballot collection will come to an end.” But if an elections board votes to install drop boxes, Polster added, the challengers can return to court.

Shortly after Polster issued his order, reporters questioned whether he had interpreted LaRose’s directive properly. Tierney Sneed of Talking Points Memo reported on Twitter that LaRose’s office had indicated that Polster had not interpreted the directive correctly.

The plaintiffs asked Polster to reconsider his Oct. 6 order, and on Oct. 8 Polster issued a new opinion in which he gave county election officials the green light to install off-site drop boxes and to use its staff to collect ballots off site. In a 26-page opinion, Polster acknowledged that federal judges should step in to block an order by a state official only “when it is essential to vindicate a vital constitutional right, and when all methods short of doing so have been tried. That,” Polster stressed, “is the case here.”

Polster explained that the “COVID-19 pandemic, coupled with the anxiety over whether the U.S. Postal Service will be able to handle the unprecedented number of ballots being returned by mail, is posing unprecedented challenges to voters and boards of elections.” In these conditions, Polster reasoned, limiting counties to one drop box disproportionately affects access to voting for people of color who live in larger cities and counties. By contrast, Polster continued, LaRose’s justification for the limit on drop boxes – a desire to ensure that everyone has a uniform opportunity to cast a ballot through the drop boxes – falls short: “Giving all voters an equal opportunity would require multiple drop boxes in heavily populated counties to account for their population,” Polster wrote. And LaRose has not provided any evidence to show a genuine security or fraud problem with multiple drop boxes, Polster added. Finally, Polster pushed back against LaRose’s contention that courts should not change the rules of an election at the last moment. Here, Polster explained, his ruling will not create confusion, but will instead “end the disruption and litigation around the use of multiple drop boxes.”

Polster declined to put his order on hold while LaRose appeals. LaRose filed his appeal with the U.S. Court of Appeals for the 6th Circuit on Oct. 8, asking that court to block Polster’s order immediately. That order, LaRose argued, “will do immense damage if allowed to remain in effect only to be” lifted later. LaRose urged the court to rule on his request by Tuesday, Oct. 12, so that he could go to the Supreme Court if necessary.

The court of appeals granted LaRose’s request and put Polster’s order on hold while the state appeals. In an opinion by Judge Richard Allen Griffin that was joined by Judge Amul Thapar, the majority reasoned that Ohio voters have a variety of options, one of which is drop boxes, to cast their ballots. Limiting drop boxes, the majority continued, therefore “poses at most an inconvenience to a subset of voters”; it does not severely burden the right to vote. And there are good reasons for counties to limit the number of drop boxes, the majority added, including security and efficiency. “Federal courts,” the majority concluded, “are not ‘overseers’ and ‘micromanagers’ of ‘the minutiae of state election processes,” but in this case Polster changed election rules during an election.