Tuesday’s elections (mostly) continue amid coronavirus pandemic

Legal chaos follows last-minute Ohio postponement

County election workers in Dayton, Ohio, hand out signs to put up at polling stations Tuesday after primaries were postponed due to the coronavirus. (Megan Jelinger/AFP via Getty Images)
County election workers in Dayton, Ohio, hand out signs to put up at polling stations Tuesday after primaries were postponed due to the coronavirus. (Megan Jelinger/AFP via Getty Images)
Posted March 17, 2020 at 5:36pm, Updated at 6:50am

Voters in three states headed to the polls Tuesday even as chaos engulfed a fourth that ordered a last-minute postponement while Americans were warned to stay home to protect themselves from the new coronavirus.

In some ways, the contests were an early test of what the 2020 elections could look like in the midst of a global health crisis, and the very different paths states can take. The Federal Election Commission also had to make a snap decision about fundraising for elections that go into overtime.

Arizona, Illinois and Florida moved forward with their elections. But late Monday night, Ohio officials moved to postpone in-person voting until June 2, creating confusion and sparking a lawsuit over whether the decision was legal.

“We need to continue to vote,” said Arizona Democratic Rep. Ruben Gallego, who was dropping off his ballot Tuesday. “We voted in this country in some horrible times. Now, especially in Arizona with the availability of vote-by-mail, we can do this safely and effectively.”

Arizonans were casting their ballots by mail long before the pandemic hit. But not every state has an ingrained vote-by-mail process, and election officials have been scrambling to postpone primaries and emphasize voting early or casting absentee ballots.

Elections, campaigns move forward

On Tuesday, Arizona and Florida held presidential primaries, while Illinois held both presidential and congressional primaries.

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Contests in Illinois and Florida were plagued by voter confusion about relocated polling places, poll workers who did not show up, struggles to find supplies to sanitize polling places, and dismay from voters who were not able to go outside and cast their ballots.

Leaders of the watchdog group Common Cause in those states said there had been numerous calls to election protection coalition hotlines Tuesday with questions on how to cast ballots.

“It’s been a hectic and trying day,” said Jay Young, the group’s Illinois executive director. Issues his team immediately noticed included election judges not showing up and polling places being forced to close, he said.

Campaigns have also had to adjust, and the top Democratic presidential contenders took different approaches. Vermont Sen. Bernie Sanders’ campaign said it would not participate in traditional get-out-the-vote outreach to push voters to the polls, but it did livestream a “digital rally” with the candidate Monday that included performances by celebrities.

“We are making clear to voters that we believe going to the polls amid the coronavirus outbreak is a personal decision and we respect whichever choice they make,” Sanders spokesman Mike Casca said in a statement. “We are also passing along guidance from the Centers for Disease Control on staying safe during the crisis.”

Former Vice President Joe Biden’s campaign was moving forward with virtual GOTV efforts. Jill Biden, the candidate’s wife, participated in a series of video calls Monday with political leaders, volunteers and supporters in each of the states.

Gallego participated in the Arizona call, reading ballot drop-off locations and early voting sites off of his cell phone. He said Biden supporters were also texting and phoning voters Tuesday.

Ohio campaigns scramble

In Ohio, campaigns were reeling after a chaotic Monday night.

While Republicans have a handful of contested state races, Democrats not only were ready to weigh in on the battle between Sanders and Biden but also had heavily contested primaries in two congressional districts. Now, they will have to wait to see the results, after state officials moved to delay the election until June 2.

“Having this keep going is like having a pregnancy go on too long,” said Catherine Turcer, executive director of Common Cause Ohio.

The uncertainty has caused campaigns to privately wonder if they should treat the extension period like a primary or like a runoff, and whether they can use money raised for the general election over the next few months — FEC rules don’t allow for it until after a candidate wins the primary.

The FEC said Tuesday it would be working to update deadlines, including for new pre-primary disclosures, and “affected campaigns may continue to accept primary contributions until the date of the rescheduled election.”

Rep. Joyce Beatty, a Columbus-area Democrat, and her opponent, lawyer Morgan Harper, both tweeted out updates about the postponed election without complaining about the uncertainty it created.

“I am 100 percent supportive of this decision,” Harper said in a video posted to Twitter.

Beatty said she was coordinating with leaders to make sure that Ohioans still had access to the vote, “while preserving their health and safety.”

“We face an unprecedented public health crisis that requires our collective efforts to overcome,” she said in a statement.

Calls for mail-in voting

In Ohio’s 1st District near Cincinnati, Democrats Nikki Foster and Kate Schroder were facing a tight primary to see who would challenge Republican Rep. Steve Chabot.

“Ohioans’ safety comes first. Period.” Foster tweeted early Tuesday morning. “However, the confusion created today will lead to unintentional disenfranchisement and that is unacceptable. This is why we must fight to ensure all votes can be cast by mail in future elections.”

Schroder, in an interview, said she was pushing for clarification about the rules and an extension of absentee voting and curbside voting, which Ohio Secretary of State Frank LaRose tried to implement in the days leading up to the election.

But even so, she said, some poll workers and voters showed up Tuesday to vote. Schroder got texts wishing her good luck despite the fact that the election had been delayed.

She said her campaign had gone all-digital, canceling rallies and events, and it will continue to do so.

“Having an election in a pandemic,” she said. “There’s not a playbook for it.”

Was it legal?

Ohio is not the only state to postpone elections, but the late-night confusion raised questions about who has authority in times of crisis.

LaRose and Ohio Gov. Mike DeWine, both Republicans, announced Monday afternoon there would be a lawsuit to delay the elections because of concerns that in-person voting could spread the virus, particularly to poll workers, who tend to be senior citizens.

Franklin County Common Pleas Court Judge Richard Frye denied the attempt, however. Then DeWine’s state health director, Amy Acton, declared a public health emergency to close the polls.

Later, the Ohio Supreme Court rejected, without comment, a lawsuit from a Republican candidate in northwest Ohio who argued against postponing the primary.

By early Tuesday, it was clear the polls would not be opening. LaRose ordered voting to take place June 2 instead, but he and DeWine acknowledged there will be legal challenges over it.

Under state law, election dates and deadlines can only be changed by a court order or an act of the legislature. So there is disagreement over whether LaRose had the authority to issue his directive.

“On its own, the Department of State simply doesn’t have the authority to unilaterally reschedule an election, unilaterally extend deadlines,” said Michael Morley, a Florida State University law professor who has studied emergency election statutes. Morley said emergency legislation or a court order is necessary to move forward.

But Edward Foley, the director of the election law program at the Moritz College of Law at The Ohio State University, said LaRose had the power.

“Once the health decision is made, to me, the Constitution kicks in,” Foley said. “The federal Constitution guarantees equal voting rights.”

Ohio Democratic Party Chairman David Pepper said that while he respects DeWine’s decision to delay the elections — “poll workers were literally scared to death,” he said — he objects to the decision to reschedule it for June 2.

The party sued Tuesday, seeking a court order allowing voters to get absentee ballots and mail or drop them in secure receptacles at election offices up until April 28.

But Ohio House Speaker Larry Householder signaled Tuesday he would not call members of the General Assembly in before next week, when it was scheduled to convene. The chamber would consider an extension of absentee voting then, he said.

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