COLUMBUS, Ohio — Republican Ohio Attorney General Dave Yost has rejected a Democratic proposal meant to get around a legal technicality that could prevent President Joe Biden from appearing on the ballot here this November.
In a Monday letter to Republican Ohio Secretary of State Frank LaRose’s office, Julie Pfeiffer, a top lawyer in Yost’s office, said the idea floated by Democrats — that LaRose accept a “provisional” certification of Biden as the Democratic Party candidate before the party’s official convention in mid-August — isn’t allowed under state law, which sets the deadline for parties to nominate their presidential candidates in early August.
The development means that Democrats will have to figure out another way to deal with the issue.
Bill Demora, a state senator from Columbus who’s also a longtime operative with the Ohio Democratic Party, said he isn’t surprised Yost rejected the proposal, floated in an April 9 letter to LaRose’s office from Don McTigue, a longtime Democratic elections attorney in Columbus who has done work in the past for national Democrats.
“It was a Hail Mary to think that the Secretary of State had any ability to change the law when he’s an executive,” Demora said. “I never expected it to go, but they did it just to say they did it.”
Demora spoke with cleveland.com and The Plain Dealer from Chicago, where he was participating in a walkthrough for the Democratic National Convention, scheduled to be held in the city from Aug. 19-22. He said he’d spoken with Democratic National Committee Chair Jamie Harrison about the issue, and is reassured that Biden will qualify for the Ohio ballot one way or another.
“I think it’s going to be solved through Democratic Party processes that aren’t that complicated,” said Demora, who declined to specify them for use in this story, although others have described how national Democrats could hold an earlier “mini-convention.” “We’re just waiting on D.C. to tell us what to do.”
The Biden campaign said that Alabama, Illinois Montana and Washington in 2020 all granted provisional certification to presidential candidates that year to deal with similar issues.
“Joe Biden will be on the ballot in all 50 states,” a Biden campaign official said.
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While Ohio Democrats have been aware of the issue internally for months, the issue with Biden qualifying for the ballot first became public on April 5, when LaRose wrote a letter to Ohio Democratic Party leaders.
Specifically, LaRose’s office said the Democratic convention date will occur after a state deadline that says major political parties must certify their presidential candidates no later than 90 days before the general election. This year, that deadline is Aug. 7 -- about two weeks before the Democratic National Convention.
Both Republican and Democratic conventions, the highly choreographed events where parties formally choose their presidential candidates, have conflicted with the state law since it went into effect in 2010. So Republican and Democratic lawmakers in past years have agreed to waive the deadline when it’s posed an issue. For the 2020 election, they wrote an exception into the 2019 operating budget more than a year before the conventions.
In his letter, LaRose suggested that Democratic legislative leaders could try to change the law again this year. But that would require Republican cooperation, since the GOP holds supermajorities in both the Ohio House and Senate. Ohio Republicans, including U.S. Sen. JD Vance, have said publicly they don’t want a legal technicality to prevent Biden from making the ballot, which state Democrats have said could be catastrophic to down-ballot candidates like U.S. Sen. Sherrod Brown.
But legislative Republicans also haven’t proposed doing anything to deal with the issue. Senate President Matt Huffman, an influential Lima Republican, last week referred to the issue as a “Democratic problem” and said a legislative fix hasn’t been proposed to him.
On Tuesday, a spokesperson for Ohio House Minority Leader Allison Russo said legislative Democrats are deferring to the Biden campaign when it comes to next steps.
Demora meanwhile said he has prepared two bills to deal with the issue, one of which he described as a “short-term fix” and the other as a “long-term fix.” Both would have to be approved by the Ohio House and Senate and be signed by Republican Gov. Mike DeWine to become law.
But, Demora also said he interpreted Huffman’s comments to mean that Republican legislative leaders in Columbus aren’t interested in helping.
“I have bills ready to go,” Demora said. “I’ll drop [introduce] them if someone tells me to drop them.”
The proposal from McTigue to LaRose’s office proposed what he called a “provisional certification,” which apparently was simply a request that LaRose administratively waive the deadline. The letter, first reported by ABC News, also hints at the possibility of a lawsuit.
“Here a court would have little difficulty finding a strict application of the [Aug. 7 deadline] imposes a severe restriction on President Biden and Vice President [Kamala] Harris’s access to the ballot,” McTigue said. “If strictly enforced, the deadline would prevent one of the two major party presidential candidates from appearing on the ballot — an unjust and unconstitutional result.”
The U.S. Supreme Court last month overturned efforts in Colorado and Maine, both Democratic-controlled states, to disqualify Trump from the ballot in those states this year due to an interpretation of the 14th Amendment, which bars those who participated in an insurrection against the United States from holding federal office. The court unanimously found that states lacked legal authority to exclude presidential candidates from the ballot.
Meanwhile, Ohio is not the only state where Biden faces eligibility issues due to the Democratic convention date. A Republican Secretary of State in Alabama made a similar finding last week.
Here are copies of the correspondence between Yost, LaRose and McTigue, which cleveland.com and The Plain Dealer obtained via a public records request.
McTigue’s April 9 letter.
LaRose’s April 15 response to McTigue.
And here is an April 15 letter from Yost’s office to LaRose’s office.
Andrew Tobias covers state politics and government for cleveland.com and The Plain Dealer