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Ohio Argues Voters Incarcerated Right Before Election Day Subject to Different Deadlines

Voting ballot: Absentee voting by mail with candidates and measures on paper and pen with glasses
By Laura Temme, Esq. | Last updated on

The Sixth Circuit Court of Appeals heard oral arguments earlier this month over whether those jailed in Ohio right before Election Day are entitled to the same absentee voting exemptions as those who are hospitalized.

Although state law prohibits convicted felons from voting, the rules are different for those detained and awaiting trial. Generally, a person who is confined or hospitalized in Ohio can submit an absentee ballot by noon on the Saturday before Election Day. This includes people who are in jail.

If someone is hospitalized after the deadline due to an accident or unforeseeable medical emergency, the window extends to 3 p.m. on Election Day. However, there is no such exemption for someone who is arrested and put in jail after the absentee voting deadline.

District Court Finds in Favor of Newly Incarcerated Voters

The district court granted plaintiffs Tommy Mays II and Quiton Nelson Sr. emergency relief on Election Day 2018 when no one at the jail could tell them how they could exercise their voting rights. Both were arrested within just a few days of Election Day and were given absentee ballots at the judge's direction.

Later that month, the court granted their motion for class certification, as well as their motion for summary judgment. In doing so, Judge Michael Watson didn't make any drastic changes to Ohio voting law, but he did find that the state offered no rational justification for giving hospital-bound voters a more generous deadline than those who are incarcerated.

The inherently short time frame between the arrests and the deadline, Judge Watson found, required "extraordinary efforts" by the plaintiffs to exercise their right to vote. Moreover, those efforts were made at the expense of focusing on their legal cases.

Ohio Argues It Can't Prepare for Everything

In oral arguments earlier this month, Ohio Deputy Solicitor General Zachery Keller argued that Election Day deadlines inevitably prevent some people from voting and that the district court's ruling should be overturned. Traffic accidents, bad weather, and other unforeseen conflicts keep people away from the polls all the time, Keller argued.

"Surely," Keller said, "the state doesn't have to stand trial for all those scenarios?"

However, that doesn't mean the state can draw lines wherever it pleases. If the extended deadline already exists for one group, would the state really be burdened by allowing the other to do the same? Treating the two differently skates too close to an assumption that those in jail on Election Day will stay there - and will lose their voting rights anyway.

The Sixth Circuit Panel gave no indication of when to expect its decision, but the case is one to watch as we inch closer to the 2020 election.

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