Ohio’s government and citizens are engaged with responding to the serious public health implications of COVID-19 and must act accordingly to ensure the protection of public safety. Yet even in this extraordinary moment, it remains true that the right to vote is a fundamental right, “preservative of all rights.” Yick Wo v. Hopkins, 118 U.S. 356, 370 (1886). Any emergency state action in the realm of voting must be crafted with the utmost care to preserve both the State’s interest in public safety and this most critical of rights—including, and perhaps especially, in the midst of this crisis. Amici, League of Women Voters of Ohio and Ohio A. Philip Randolph Institute, respectfully submit this Brief in support of no party in this case to alert the Court and the parties to two fundamental principles that must guide any remedies fashioned in this case.
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First, the Ohio Secretary of State’s Directive 2020-06 purports to set June 2 as the new primary date, but prohibits anyone who was not registered to vote by February 18, 2020, from voting in the rescheduled election. This Directive violates Section 8 of the National Voter Registration Act of 1993 (52 U.S.C. § 20507(a)) (“NVRA”), which unambiguously mandates that voters be permitted to register to vote up to 30 days prior to any election. Whether the election is to be held on April 28, May 16, June 2, or some other day, Ohioans must be permitted to continue to register to vote in accordance with the requirements of federal law.
Second, the Relators’ and Intervenor’s requested remedies appear to rely only on voting by mail. Although Amici acknowledge, and indeed describe below, the need for the most expansive mail absentee ballot procedures possible, voting by mail should not be the only option. While full access to voting by mail is an essential option for many people, including elderly individuals, persons with disabilities, and, under the current crisis, individuals who are ill or fearful of being exposed to the COVID-19, voting by mail is not a full solution. This is true particularly in communities of color—where mail service is often not as robust as elsewhere— and among those who are distrustful of the use of the mail system as the vehicle to exercise this important right. For many such Ohioans, in-person voting—including early in-person voting— remains the most viable option.1 In addition, Ohio’s current procedures for voting by mail are so burdensome and restrictive as to make that option inadequate for conducting the entire election. Any new election date must, to the extent possible, make accommodation for all voters, and not rely exclusively on means that could have a discriminatory impact on specific populations.
Amici suggest that any remedy or relief ordered in this case require Ohio officials to develop a concrete plan to address problems that may arise up to or on the rescheduled primary election date in order to prevent the chaos and confusion that prevailed on March 16 –17, 2020. This should include a communications plan so that local elections officials and the public are not misinformed about critical information such as whether polls will be open or closed, as occurred in the hours prior to the scheduled 2020 primary.
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