Yesterday there was a lot of action going on regarding today’s primary election in Ohio, but it had little or nothing to do with voting. Due to the coronavirus (of course) the Governor decided that the risk to public health was too great to have people clumping together at polling places and asked the courts to postpone the election. A judge considered the request but concluded that the delay would be too problematic and ordered that the voting move forward anyway. Then, last night, in a shocking development, Governor Mike DeWine rejected the court’s decision and said that the primary would be postponed until June anyway. If this doesn’t have you worried, you didn’t pay attention in civics class in high school. (NBC News)
Ohio’s primary election was thrust into chaos Monday as Gov. Mike DeWine said the state would not open polls Tuesday because of the coronavirus outbreak after a judge declined to postpone the contest until June.
“During this time when we face an unprecedented public health crisis, to conduct an election tomorrow would force poll workers and voters to place themselves at an unacceptable health risk of contracting coronavirus,” DeWine said in a statement posted to Twitter.
DeWine said that state Health Department Director Amy Acton would “order the polls closed as a health emergency. While the polls will be closed tomorrow, Secretary of State @FrankLaRose will seek a remedy through the courts to extend voting options so that every voter who wants to vote will be granted that opportunity.”
In the coming weeks and months, we are going to be having a long series of debates over the limits of executive power (at all levels of government) during states of emergency. The handling of the Ohio primary this week should be near the top of the list of items to discuss because this is essentially the definition of a constitutional crisis.
On the surface, the reasons for postponing the election being offered by the Governor, the Secretary of State and the Director of the Health Department make perfect sense. Polling stations tend to be staffed by senior citizens, a group most at risk from the virus. Long lines are expected at a time when everyone is being told to practice “social distancing” to slow the spread of the disease. Having people stay away from the polls makes perfect sense.
But at the same time, we need to pause and realize what just happened. The Executive branch in Ohio sent the matter to the Judicial branch. The Judicial branch made a ruling (whether we agree with it or not) and the Executive branch completely ignored them and overruled the decision. This is precisely the sort of constitutional crisis that we’ve been warned about over the entire history of our country. If the courts have no one to enforce their orders, we no longer have three co-equal branches of government.
Curiously, over at the Washington Post, Griff Witte has written a glowing review of DeWine’s decisions and actions throughout the growth of the epidemic, including his decision to postpone the election. I’m going to operate under the assumption that his copy was submitted before the court rejected the idea.
Yes, DeWine was an early, aggressive actor in trying to minimize the danger from the contagion in his state and many of his actions have proven to be prescient. And it may turn out that postponing the election will wind up saving lives and helping to “flatten the curve” of the epidemic, aiding in preventing our medical resources from being overwhelmed. But when this virus finally passes and we return to whatever passes for “normal” in the aftermath, people in Ohio (and across the nation, really) will be left staring in the mirror and asking precisely how powerful the executive branch is and what other circumstances might arise where the decisions of our judges can simply be ignored. It’s a critically important question that could have ugly ramifications further down the road.
Meanwhile, Arizona, Illinois and Florida will still go to the polls today. In a couple of weeks, depending on whether their coronavirus case count spirals and by how much, we should know if they made the right call. Good luck and Godspeed to everyone involved.