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Legal technicality could keep Biden off the Ohio ballot

The deadline for parties to confirm their presidential candidate in Ohio is Aug. 7, but the Democratic National Convention isn't until Aug. 19.
Legal technicality could keep Biden off the Ohio ballot
Posted at 2:02 PM, Apr 22, 2024

The dysfunction continues at the Ohio Statehouse as a legal technicality may prevent President Joe Biden from being on the November ballot. But a Republican legislative leader has offered to help, assuring that the Democrat will get on the ballot. 

However, would the lawmakers actually pass a bill to fix the obscure law? And do the Democrats have a case for court? Our legal expert said no.

Ohio requires parties to confirm their presidential candidates 90 days before the November election, which would be Aug. 7. But President Biden won’t be the official nominee until the Democratic National Convention, which is on Aug. 19.

Senate and House Minority Leaders Nickie Antonio and Allison Russo were seemingly unaware of this, and plenty of other lawmakers on each side of the aisle also didn't know. Secretary of State Frank LaRose didn’t remind the Democrats until April.

Still, they remain positive.

"I’m 100% confident that Joe Biden is going to be on the ballot in Ohio," Russo said.

But they are scrambling.

"I'm not going to comment on what the DNC may or may not do," she added. "They're exploring all the potential options."

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Attorney General Dave Yost just shot down the party's plan to allow for a "provisional" certification of President Biden. But Case Western Reserve University constitutional law professor Jonathan Entin said that in most other states, this would be an easy fix.

"The obvious solution is for the legislature to get rid of the 90-day deadline," Entin said.

The little-known law was passed in a major omnibus bill in 2010. In 2012 and 2020, exemptions were passed for those years — impacting both parties. In 2016, both the DNC and the RNC held their conventions before the deadline.

This is simply an "arbitrary" deadline, Entin added. It may slightly reduce the number of early voting days, but not significantly.

To accomplish this, the Republican supermajority, one that is already fractured and has significant infighting that has led to the fewest amount of bills passed in a General Assembly in decades, would need to pass an emergency bill in the next few months — all to help the Democrats.

Senate President Matt Huffman previously took a hands-off approach.

"It's a Democratic problem," the Republican said. "There should have to be a Democratic solution."

However, five days later, he seemed more willing to help — even adding that he didn't know about the law, either.

"We're certainly going to try to accommodate getting it resolved," Huffman said.

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"For folks who say, 'Well, we can keep Joe Biden off the ballot' — that's wrong," he added. "You're not going to be able to look at the current president of the United States and a major political candidate, and just say 'We got a law, you didn't know about it, ha ha.'"

But Huffman suggested the Democrats should not try legislative fixes, because it would be faster if the Democratic National Committee could just announce President Biden as their nominee ahead of time. That, or the Democrats could take legal action.

"It's likely that if a state law, whether it's this one or state action like Colorado and Maine, that will keep a candidate of a major political party off the ballot, then ultimately, a federal court — and perhaps the United States Supreme Court — would move in and do something about that," Huffman said, referencing the March decision from the U.S. Supreme Court putting Trump back on the ballot after the states removed him for "engaging in an insurrection" under the U.S. Constitution's 14th amendment.

Entin doesn't think this is a strong argument.

"The idea that a federal court is going to come in and say, 'And therefore this deadline is somehow unconstitutional,' I think is optimistic," he said.

There is also another case from 1983 from the U.S. Supreme Court where the justices struck down Ohio's very early deadline for getting a party on the ballot. This law made minor parties submit earlier than the GOP or Democratic party.

The professor said he also doesn't like this one.

"The 1983 Supreme Court decision dealt with a law that discriminated against minor parties," Entin added. "I think the basic problem is this doesn't discriminate against anybody."

He called it a "foolish law." But because it applies to all parties — not just Democrats — admits the case would be difficult to argue.

"Neither one of those [cases] necessarily supports the idea that Biden has to go on the Ohio presidential ballot this year," Entin said. "I hope that the folks involved have a fallback position because I wouldn't bet the farm on that legal strategy working."

Still, the Democrats stay hopeful.

"At the end of the day, we should all be supporting fair and free elections, right?" Antonio said.

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"What seems to be going on reflects yet again how dysfunctional the Ohio government is," Entin said. "There's plenty of faults to be laid on just about everybody."

You can fault the Democrats for not knowing the law, the entire legislative leadership for being uncooperative and constantly bickering and LaRose for "waiting until virtually the last minute to raise the issue," the professor added. 

"If we had responsible public officials, none of this would matter," he said.

Entin added that the lawmakers can't even manage to pass bipartisan bills, so there is no way they will pass one benefiting the minority party.

"I can't say that I'm surprised, but I think that we should all be disturbed that there, apparently, is no movement in the state legislature to change the law," he said.

Huffman said the Republicans are waiting on the Democrats to propose something. The Democrats won't say if they are working on a bill.

Just get together and pass a bipartisan bill amending the law, the expert said, exasperated.

"It's hard to imagine that anybody could go broke underestimating the irresponsibility of Ohio officials dealing with this situation," Entin sighed.

This story was originally published by Morgan Trau at Scripps News Cleveland.

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