With the polls set to open just 12 hours later, a Franklin County judge on Monday rejected a lawsuit — filed at the behest of the governor and secretary of state — to delay Ohio’s primary election until June due to the COVID-19 pandemic.
Despite the ruling, Gov. Mike DeWine said in a statement just after 10 p.m. that same day that polls are closed Tuesday, leaving an electorate in disarray mere hours before an election.
Common Pleas Judge Richard Frye said around 7 p.m. the lawsuit announced by DeWine and Secretary of State Frank LaRose just before 3 p.m. would cause a bevy of new problems without necessarily solving the preexisting ones.
“There are too many factors to balance in this uncharted territory to say we ought to take away from the legislature and elected statewide officials and throw it to a common pleas judge in Columbus with 12 hours to go until the election,” Frye said.
In a statement issued just after 9 p.m. Monday, DeWine and LaRose said it “simply isn’t possible” to hold an election Tuesday that will “be considered legitimate by Ohioans.”
In another statement issued after 10 p.m., DeWine said conducting an election Tuesday would force poll workers to face “unacceptable” health risks of contracting COVID-19. Thus, he would close the polls, seemingly flouting Monday’s legal action.
“As such, Health Director Dr. Amy Acton will order the polls closed as a health emergency,” he said. “While the polls will be closed tomorrow, Secretary of State Frank LaRose will seek a remedy through the courts to extend voting options so that every voter who wants to vote will be granted that opportunity.”
Acton issued the order just before 11 p.m. The order marks the intersection of a political crisis and a spiraling pandemic, both of which are far from over.
Monday’s court decision followed DeWine recommending at a Monday afternoon news conference the election be postponed.
DeWine’s comments led elections officials around the state to tell pollworkers they were relieved of their duties on Tuesday — all prior to Frye’s ruling.
Frye listed several other reasons for the rejection. He said despite arguments that people especially vulnerable to the disease — the elderly and the immunocompromised — would be disenfranchised, no one disenfranchised them intentionally. Likewise, they had ample opportunities for early voting and casting absentee ballots.
He said the legislature sets the primary election date in statute, and noted neither the governor, the Senate President, nor the Speaker of the House, convened any legislative session to change the date. He also warned of possible disenfranchisement a delay could cause, such as provisional ballots being lost.
Both DeWine and LaRose have trumpeted the safety of the elections until they abruptly changed their tone Monday afternoon and announced plans to “recommend” delaying the election until June 2. Frye criticized LaRose for the last-minute reversal.
“I don’t believe that plaintiffs have proceeded in a timely matter or for that matter, that the secretary has proceeded in a timely matter himself,” he said.
The plaintiffs in the lawsuit — Judith Brachman and Jill Reardson — argued they are over the age of 65 and therefore are considered “vulnerable” under the Ohio Department of Health and CDC guidelines.
“We should not force them to make this choice,” DeWine said at a Monday press briefing, announcing the lawsuit. “A choice between their health and their constitutional rights and their duties as American citizens.”
The Cincinnati Enquirer reported Brachman previously served as director of the Ohio Department of Aging and has worked with DeWine and state Attorney General Dave Yost for years. Yost reportedly called and asked her to join the lawsuit early Monday.
Poll workers confused
In interviews Monday night, more than a dozen poll workers in numerous counties around the state expressed confusion about the whipsaw of events throughout the day Monday.
Many said they were told after DeWine’s press conference that they were no longer needed for Monday night set-up and Tuesday night elections work.
The Franklin County Board of Elections was among the counties that sent emails and texts to some poll workers relieving them of their duties.
Franklin County’s messages came after the judge’s ruling that the election was in fact on.
“There will not be any polling locations open tomorrow in Franklin County, therefore do not show up to serve as a Precinct Election Official,” read an email sent at 7:37 p.m. obtained by the Capital Journal.
Officials confirmed 50 cases of the virus detected in Ohio leading to 14 hospitalizations, as of 2 p.m. Monday. By Wednesday, an estimated 234,000 Ohioans will be infected, according to estimates ODH director Dr. Amy Acton has offered at daily briefings. These estimates rely on the infected population doubling every six days.
The low detection figure compared to the estimated infection rate can be partially attributed to inadequate testing. The state health department has three test kits in its lab, capable of testing 1,200 to 1,500 people total. Some private labs and hospitals have begun testing but nowhere near the scale of the growing infected population.
Since the World Health Organization declared the COVID-19 pandemic outbreak a pandemic, DeWine and Acton announced a sweep of closures and cancellations on a day-by-day basis. They include mass gatherings, schools, sporting events, bars and restaurants dine-in service, nursing home visitation and others.
The closures, state officials said, are a means to protect the elderly and immunocompromised from infection.
‘We don’t see any danger in voting’
For days, state officials have downplayed the risks of in-person voting on Election Day as they’ve ordered closure after closure of other businesses and events.
On March 10, LaRose announced his office would move at least 125 poll locations originally located in nursing homes and senior residential facilities.
“I think with a lot of these things, we don’t want to overreact — we want to react smartly,” he said. “We made a decision in the right timing that the changes can be made. They’ll have to move fast, but there is time.”
At a COVID-19 preparedness summit March 5, before the detection of any cases in Ohio, DeWine said voting would not be impacted.
“We are  days away from the Ohio primary, we do not see any danger in political rallies, we don’t see any danger in regard to voting, we would not anticipate that would be in any way impacted,” DeWine said.
On Monday, the officials emphasized they acted day by day on the best information available. LaRose told CNN late Monday the incoming advice “radically” changed.
DeWine, at his press event, said the decision will look obvious in hindsight.
“I think when we look back on this, we’re going to be glad we did this,” DeWine said.