COLUMBUS, Ohio — Ohio lawmakers have joined together to fix the state's obscure law that would have prevented President Joe Biden from being on the November ballot — but there is one problem. Seemingly unbeknownst to the lawmakers, they only gave themselves until Thursday to get this signed into law.
Ohio requires parties to confirm their presidential candidates 90 days before the Nov. election, which would be Aug. 7. But Biden won’t be the official nominee until the Democratic National Convention, which is on Aug. 19.
House Minority Leader Allison Russo (D-Upper Arlington) and the Democrats were unaware of this, and plenty of other lawmakers on each side of the aisle also didn't know. Sec. of State Frank LaRose didn’t remind the Democrats until April.
The Democrats have been reliant on the Republicans to help them.
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, needs to pass something now — all to help the Democrats.
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The Ohio Democrats have received support from the House Republicans in getting the president on the ballot.
The House completely stripped Senate Bill 92, legislation to allow for August special elections — repealing the 2022 law that banned the vast majority of special elections. They did this despite the fact that legal experts said it was likely illegal to have the August election last year because the state law had outlawed them. Ohio still ended up with a special election, though, as the GOP attempted to curb the proposal to enshrine abortion rights into the state constitution. Their attempt to stop it failed.
The nomination deadline fix was put into S.B. 92. Instead of having a 90-day requirement, it would now be 74 days.
"I think everyone agreed this is good for democracy," Russo said. "We want people to have full access to the ballot, and that's good for both parties."
S.B. 92 heads to the House floor on Wednesday after passing out of committee on Tuesday. After it likely passes the House, this means that all it needs to get sent to Gov. Mike DeWine is a concurrence vote from the Senate.
"We'll see what happens tomorrow on the floor and then also with the Senate," Russo said. "But the conversations have been good so far."
It is unclear how involved the Senate Republicans have been in this process. I reached out to the original S.B. 92's sponsor, state Sen. Rob McColley (R-Napoleon), but did not hear back. The spokesperson for the Senate GOP was off work Tuesday.
However, Senate President Matt Huffman (R-Lima) agreed in April that his caucus is "certainly going to try" to get it resolved.
Thus, the House — which is in a war with the Senate for unrelated reasons — amended their bill.
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"It enables the notification to be a lot more flexible, whether it's email or whatever," House Speaker Jason Stephens (R-Kitts Hill) said. "This gives the flexibility."
This doesn't just help the Democrats, Stephens added.
"Just four years ago, we had this issue," the speaker said. "The party in power in the White House usually goes last for the convention, so hopefully this will take care of that issue."
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.
"I think being prescriptive with the day could potentially put us in a position in the future that we have to come back and fix this, but it certainly makes it less likely that we would have to do that," Russo said.
House leaders are hopeful DeWine will sign the bill on Friday, May 10, but assure they have two weeks after that to meet their deadline.
"Look, President Biden will be on the ballot," DeWine told me last week. "This is a quirk in the Ohio law that needs to get fixed — and it will get fixed one way or the other. I don't think anybody should be concerned about this."
But there is an issue.
The problem
This may get a bit confusing, so here is a full breakdown.
Parties must tell Ohio their presidential nominee before or on Aug. 7.
After being signed by the governor and delivered to the secretary of state's office, bills take 90 days to go into effect.
Ohio law specifically states in Article II, Section 1c: "No law passed by the General Assembly shall go into effect until ninety days after it shall have been filed by the governor in the office of the secretary of state."
Ninety days after May 10 is Aug. 8.
Aug. 8 is the day after the nomination deadline.
After back-and-forths with each House caucus' administration and checking with two additional legal experts, I have concluded that the lawmakers' math was flawed.
"The only problem that you've encountered, and you were right, is when you start counting," Case Western Reserve University constitutional law professor Jonathan Entin said.
The Democrats acknowledged the error and said they were looking into it. The Republicans had been discussing it with their legal team but said it still doesn't violate state law — adding that they worked with the secretary of state's team on it. I reached out to LaRose's office but didn't hear back.
The GOP also argued that once the law is effective, "any previous failure to meet the deadline is immediately cured." I brought up that the nomination deadline is before the law is effective, and it wouldn't impact the deadline that already passed.
The Democrats recognized that, yeah, it is possible we would be breaking the law for a day or more. Both they and the Republicans said it wasn't going to be an issue, though.
Solutions
I found two solutions for them.
- Pass the bill with an emergency clause so it goes into effect immediately
- Have DeWine sign it by Thursday at the latest
I asked DeWine's team if they were ready to sign the bill by the end of this week, and they joked that they were going to check their "ink supply."
Follow WEWS statehouse reporter Morgan Trau on Twitter and Facebook.
