Politics

/

ArcaMax

An obscure provision of Ohio law could keep Biden off the ballot there in November

Jonathan Entin, Case Western Reserve University, The Conversation on

Published in Political News

President Joe Biden might not appear on the November 2024 presidential ballot in Ohio. Ohio law requires that presidential candidates be certified – that is, the state must be notified that presidential candidates have been officially nominated – 90 days before the general election in order to get on the ballot. That is the earliest deadline of any state.

But the Democratic National Convention that will formally nominate Biden won’t open until nearly two weeks after Ohio’s Aug. 7 deadline. The Republican National Convention will wrap up nearly three weeks before the deadline, so Donald Trump won’t have a problem getting on the ballot.

The 90-day deadline has often caused trouble since its adoption in 2010. Only in 2016 did both parties’ conventions take place before the Ohio cutoff date. Both conventions took place after the deadline in 2012 and 2020, and legislators extended the deadline both times. This is the first time that only one convention comes too late, but Republicans could well be affected in the future.

There are ways to resolve this problem, as two other states with early deadlines have already done. Washington state officials said they will accept a provisional certification of Biden’s nomination before the convention. And Alabama’s Legislature shortened its deadline so that Biden could qualify for the ballot there.

Neither solution seems likely in Ohio, where Republicans may be seeking to make life harder for the Democrats’ presidential nominee. The attorney general says the state can’t accept a provisional certification. And the Legislature couldn’t come up with a timely fix to the law.

Ohio laws generally take effect 90 days after passage. So a change to the deadline had to pass by May 9, but the Legislature wound up doing nothing. Here’s how that played out.

Republicans have supermajorities in both houses of the Ohio Legislature, yet they couldn’t agree on how to proceed.

The Ohio Senate passed a bill, but only after adding what Democrats viewed as a poison pill that would have banned foreign nationals from contributing to campaigns for or against ballot measures. Republicans objected to a Swiss national’s rumored contributions to a successful campaign last year in which voters approved a reproductive-rights amendment to the state constitution.

The House had planned to consider a different proposal but never voted on anything before leaving town on May 8 for two weeks.

This reflects the Ohio GOP’s bitter divisions. The House speaker won his position with support from only a minority of his caucus. The Senate president will switch to the House next year because of term limits and has hinted he will challenge the speaker.

The Legislature could still pass an emergency law to change the deadline, but emergency laws require a two-thirds vote in both houses. The chances of that happening are uncertain at best.

So, Democrats might have to file a lawsuit to get Biden on the ballot.

As a constitutional law scholar, I believe Democrats would have a strong argument that using an arbitrary and unusually long deadline to bar a major-party presidential candidate violates voting and associational rights under the First and 14th amendments. But success is not guaranteed.

 

Such a lawsuit would rely on two U.S. Supreme Court cases that rejected state efforts to bar presidential candidates from the ballot.

A 1983 decision struck down Ohio’s old law that required independent candidates to qualify more than six months before the election. And a March 2024 ruling rejected Colorado’s effort to exclude former President Donald Trump from its primary ballot.

Those cases may be helpful in making the Democrats’ case, but they don’t dictate a win. The 1983 decision overturned a law that treated independent presidential candidates much less favorably than party candidates. Ohio’s 90-day deadline treats all candidates the same.

And the Colorado case involved the state’s unilateral determination that Trump was ineligible for office as an insurrectionist under the 14th Amendment. Ohio’s 90-day rule says nothing about whether a candidate is constitutionally disqualified.

Those differences might not matter. Even if they do, a lawsuit still could win.

Ohio’s 90-day deadline is not only arbitrary, I believe that it is irrational. Nobody seems to know why the state extended the deadline from 60 to 90 days in 2010. The change came in an obscure provision of a 341-page bill.

The 90-day deadline has been a problem in almost every presidential election since then. The Legislature waived the deadline in 2012 and 2020, when both parties’ conventions fell after the cutoff date, and those elections ran smoothly. So the state can’t justify sticking with the 90-day rule this year when only one party is holding its convention after the deadline.

Biden probably won’t carry Ohio in any event. But having both major-party candidates on the ballot is necessary for a fair presidential election.

Everyone involved keeps saying that Biden will appear on the November ballot. But, at least for now, the law says otherwise.

This article is republished from The Conversation, a nonprofit, independent news organization bringing you facts and trustworthy analysis to help you make sense of our complex world. It was written by: Jonathan Entin, Case Western Reserve University

Read more:
Supporting ‘democracy’ is hard for many who feel government and the economy are failing them

Justice Sotomayor’s health isn’t the real problem for Democrats − winning elections is

Neighbors Ohio and Michigan are moving further apart in politics – differences in ballot access may explain why

Jonathan Entin does not work for, consult, own shares in or receive funding from any company or organization that would benefit from this article, and has disclosed no relevant affiliations beyond their academic appointment.


 

Comments

blog comments powered by Disqus

 

Related Channels

ACLU

ACLU

By The ACLU
Amy Goodman

Amy Goodman

By Amy Goodman
Armstrong Williams

Armstrong Williams

By Armstrong Williams
Austin Bay

Austin Bay

By Austin Bay
Ben Shapiro

Ben Shapiro

By Ben Shapiro
Betsy McCaughey

Betsy McCaughey

By Betsy McCaughey
Bill Press

Bill Press

By Bill Press
Bonnie Jean Feldkamp

Bonnie Jean Feldkamp

By Bonnie Jean Feldkamp
Cal Thomas

Cal Thomas

By Cal Thomas
Christine Flowers

Christine Flowers

By Christine Flowers
Clarence Page

Clarence Page

By Clarence Page
Danny Tyree

Danny Tyree

By Danny Tyree
David Harsanyi

David Harsanyi

By David Harsanyi
Debra Saunders

Debra Saunders

By Debra Saunders
Dennis Prager

Dennis Prager

By Dennis Prager
Dick Polman

Dick Polman

By Dick Polman
Erick Erickson

Erick Erickson

By Erick Erickson
Froma Harrop

Froma Harrop

By Froma Harrop
Jacob Sullum

Jacob Sullum

By Jacob Sullum
Jamie Stiehm

Jamie Stiehm

By Jamie Stiehm
Jeff Robbins

Jeff Robbins

By Jeff Robbins
Jessica Johnson

Jessica Johnson

By Jessica Johnson
Jim Hightower

Jim Hightower

By Jim Hightower
Joe Conason

Joe Conason

By Joe Conason
Joe Guzzardi

Joe Guzzardi

By Joe Guzzardi
John Micek

John Micek

By John Micek
John Stossel

John Stossel

By John Stossel
Josh Hammer

Josh Hammer

By Josh Hammer
Judge Andrew Napolitano

Judge Andrew Napolitano

By Judge Andrew P. Napolitano
Laura Hollis

Laura Hollis

By Laura Hollis
Marc Munroe Dion

Marc Munroe Dion

By Marc Munroe Dion
Michael Barone

Michael Barone

By Michael Barone
Michael Reagan

Michael Reagan

By Michael Reagan
Mona Charen

Mona Charen

By Mona Charen
Oliver North and David L. Goetsch

Oliver North and David L. Goetsch

By Oliver North and David L. Goetsch
R. Emmett Tyrrell

R. Emmett Tyrrell

By R. Emmett Tyrrell
Rachel Marsden

Rachel Marsden

By Rachel Marsden
Rich Lowry

Rich Lowry

By Rich Lowry
Robert B. Reich

Robert B. Reich

By Robert B. Reich
Ruben Navarrett Jr

Ruben Navarrett Jr

By Ruben Navarrett Jr.
Ruth Marcus

Ruth Marcus

By Ruth Marcus
S.E. Cupp

S.E. Cupp

By S.E. Cupp
Salena Zito

Salena Zito

By Salena Zito
Star Parker

Star Parker

By Star Parker
Stephen Moore

Stephen Moore

By Stephen Moore
Susan Estrich

Susan Estrich

By Susan Estrich
Ted Rall

Ted Rall

By Ted Rall
Terence P. Jeffrey

Terence P. Jeffrey

By Terence P. Jeffrey
Tim Graham

Tim Graham

By Tim Graham
Tom Purcell

Tom Purcell

By Tom Purcell
Veronique de Rugy

Veronique de Rugy

By Veronique de Rugy
Victor Joecks

Victor Joecks

By Victor Joecks
Wayne Allyn Root

Wayne Allyn Root

By Wayne Allyn Root

Comics

Kevin Siers Bob Gorrell Clay Bennett John Cole Rick McKee Jeff Koterba