Ohio lawmaker from Cincinnati sues 4 supreme court justices over primary delay decision

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Updated: Mar. 22, 2020 at 5:57 AM EDT
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CINCINNATI (FOX19) - A second lawsuit has been filed over Ohio’s delayed primary election due to the coronavirus epidemic - and this one is from a state lawmaker in Cincinnati.

In a lawsuit filed by attorney Curt Hartman, State Rep. Tom Brinkman says Ohio Supreme Court Chief Justice Maureen O’Connor and Justices Michael Donnelly, Patrick Fischer and Melody Stewart violated the state constitution when they issued a decision dismissing a legal challenge to the election delay because they did not include an opinion, or explanation why.

“The Ohio Constitution is quite clear that the Supreme Court must provide reasons for all its decisions in all cases,” Brinkman, R-Mt. Lookout, tells FOX19 NOW. "I am simply asking the court to comply with the constitution. It’s that simple.”

Article IV, section 2(C) of the Ohio Constitution states: “The decisions in all cases in the Supreme Court shall be reported, together with the reasons therefor.”

It is not rare, however, for the state’s top court to issue decisions without written opinions.

Ohio’s primary election was delayed until June 2 in a last-minute, dizzying array of developments on Monday, March 16.

It left many voters confused when they woke up the following day if they would be able to vote in-person.

After saying for weeks the primary election could and should be held, Gov. Mike DeWine and Ohio Secretary of State Frank LaRose sought a court order postpone it to try to keep the novel coronavirus from spreading.

RELATED | Ohio’s primary election delayed until June 2 over coronavirus pandemic | Ohio Democratic Party sues state elections chief over new primary date

The men said they believed the virus outbreak would put voters and poll workers in their 60s and those with pre-existing health conditions such as ashtma, diabetes and heart disease at risk of being exposed.

The day before, the U.S. Centers for Disease Control and Prevention had recommended no gatherings of 50 people or more for the next eight weeks to slow spread of the virus. There are no drugs that can kill it or vaccines to protect against it.

Two voters filed a complaint against the secretary of state in Franklin County Common Pleas Court alleging that holding the election Tuesday would force them to choose between their health and their constitutional right to vote.

A judge, however, rejected the request.

So late Monday, the governor directed Ohio Department of Health Director Amy Acton to order polls closed just hours before they were to open statewide.

LaRose directed boards of elections to comply with the order, extend absentee balloting and hold the primary on June 2.

Early Tuesday, the four Ohio Supreme Court justices upheld the primary delay by denying a legal challenge to it that would have forced it to proceed.

The other three supreme court justices, including two from the Greater Cincinnati area, did not participate: Sharon Kennedy of Butler County; Pat DeWine of Hamilton County and Judith French of suburban Columbus.

French and DeWine, who is the governor’s son, recused themselves, court records show. They are not required to say why.

It was not immediately clear why Kennedy did not participate. She could not be immediately reached for comment.

Later Tuesday, the Ohio Democratic Party and a suburban Columbus woman sued LaRose.

The lawsuit maintains only state lawmakers, not LaRose, can set an election date. It calls for the state’s top court to order “adequate” opportunities for Ohioans to vote via absentee balloting until April 28.

The Libertarian Party of Ohio agrees and has since requested and received permission from the court to intervene in the case.

“The Libertarian Party of Ohio is calling for more flexible voting provisions to ensure that every Ohioan has a fair and equal chance to cast a ballot,” the group says in a news release on their website.

“The party is asking that the deadline for absentee ballots be extended until May 12, that new absentee ballots be available on request under the usual rules with postage-paid return envelopes included, and that on-site voting be available at each county’s board of elections.”

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