In a surprise move, the Ohio House decided not to take up legislation to ensure President Joe Biden appears on the November ballot in Ohio.
But elected leaders from both parties insist Biden will appear on voters’ ballots. They have said so many times. But the thing is, they’re not exactly sure how, and an obscure provision in state law gives them a deadline they may not be able to meet.
Ohio law provides that political parties must certify their candidates with the Secretary of State “on or before” the 90th day prior to an election. The Democratic National Convention, the meeting at which the party will officially nominate Biden, won’t happen until August 22 — 75 days prior to the election.
This week, lawmakers hammered out two competing proposals, one in the House and one in the Senate, that would push that deadline to 74 days instead.
But because laws passed without an emergency clause don’t take effect for 90 days, lawmakers inadvertently gave themselves a deadline of May 9 to get the measure signed, sealed and delivered.
At the eleventh hour, the House and Senate were still wrangling over which bill should serve as the vehicle for passage. The Senate approved its bill and adjourned, but unrelated amendments soured some House members – mostly Democrats – on the proposal.
Rather than put the Senate bill to a vote, House Speaker Jason Stephens adjourned, over howls of protest from conservative members. They jeered “shame” at Stephens, and “Russo wins again” in reference to the House Minority Leader, Allison Russo, after the motion to adjourn passed.
“I think there’s a lot of different options in order to get him on the ballot,” Stephens told reporters after the session concluded. “You guys have probably went through a lot of the different possibilities. So you know, I’m not concerned about that happening.”
The Senate approach
The Ohio Senate significantly changed and ultimately passed House Bill 114, a campaign child care bill, by adding amendments to put Biden on Ohio’s ballot for November’s presidential election and ban foreign nationals from contributing to political campaigns.
HB 114 passed in the Senate on Wednesday afternoon with a vote of 24-7, with Democrats voting against it.
The bill moves the date Biden would need to be certified as the Democratic candidate from Aug. 7 to Aug. 23 in order to get him on Ohio’s ballot.
“That should allow for the Democratic National Committee to provide the nominee so we’ll have that choice on the ballot when they go to vote,” Sen. Rob McColley, R-Napoleon, said on the Senate floor.
This bill is a temporary change and it doesn’t change the deadline for future presidential elections.
“My personal opinion is that this should not be a permanent law change, given how quickly we’ve had to go through and deal with this issue,” McColley said. “If we are going to deal with a permanent fix, that wouldn’t even be necessary, in theory, until at least four years from now, hopefully longer. We should take our time and try to get it right. But I understand under the circumstances that we got to act quickly regarding this upcoming election. … We shouldn’t be using state law as a weapon to keep somebody off the ballot.”
The substitute bill would also ban foreign nationals from providing contributions for campaigns, similar to the language of Senate Bill 215 that passed the Senate earlier this year.
“Our intention will be to ensure that we don’t have foreign election interference in the state of Ohio, via the campaign contributions by foreigners and foreign nationals,” said McColley, who is also a sponsor of SB 215.
McColley said organizations linked to foreign nationals contributed almost $14 million in the state last year, “related to the elections that occurred in August and November.”
Senate President Matt Huffman, R-Lima, said weaving SB 215 into HB 114 was the only option.
“Republicans in both the House and the Senate aren’t going to vote for a standalone Biden bill,” he said. “There’s not enough support for it. … There’s a little bit of things in this bill for both sides to like and dislike, and I think this puts the Biden issue to rest,” he said.
Republican Senators added a substitute bill to HB 114 on Wednesday morning during the Senate General Government Committee.
State Reps. Latyna Humphrey, D-Columbus, and Bill Seitz, R-Cincinnati, introduced HB 114 last year to allow political candidates to use their campaign funds to pay for child care. The bill passed in the House over the summer, and would bring Ohio campaign finance regulations in line with federal campaign finance regulations.
Senate Democrats spoke out against the amendments made to HB 114.
“This was not a compromise bill,” said Ohio Senate Minority Leader Nickie Antonio, D-Lakewood. “That’s why the Democrats all voted no.”
State Sen. Bill DeMora, D-Columbus, called the move the worst kind of partisan politics.
“Senate Republicans held us hostage by slapping completely irrelevant partisan nonsense onto this bill because they know it needs to pass,” DeMora said.
Antonio is confident Biden will get on Ohio’s ballot one way or another — whether it be through the legislature, through the courts or through another avenue. Biden won the Democratic nomination in Ohio during the March primary with 87% of the vote.
“There are different paths to get to the end result that Biden’s on the ballot,” she said. “I’m confident he will be on the ballot. It benefits everyone that he is on the ballot.”
The House approach
Early this week, the House amended the new nomination timeline onto a different bill, and they chose an interesting proposal for the task. In the run up to last year’s August election, state senators fast-tracked a bill allowing them to hold an August election in the first place. Lawmakers had prohibited them just a few months prior.
But that Senate bill, SB 92, stalled out in committee. The election wound up going forward anyway because the courts decided to allow lawmakers to set the date in the resolution itself – without altering the underlying law.
But with an election crisis looming, SB 92 had one thing going for it – it had already passed the Senate.
So the House gutted it, removing everything to do with special elections, and then plugged in the presidential nomination language. The result was a clean bill, importantly, in all but name.
“You know, sometimes it’s about knowing the process and procedures around here,” Minority Leader Allison Russo said, “and you (can) turn a lemon into lemonade.”
The House committee took up and passed the amended bill with little fanfare. Afterward the chairman, state Rep. Bob Peterson, R-Selina, downplayed the last minute wrangling.
“I think it’s just kind of common sense,” he said. “Consistently, people have said, of both parties, Joe Biden is gonna be on the ballot in Ohio, and he should be on the ballot in Ohio.”
In addition to pushing the date for parties to certify their nominee in the current election, the House proposal would’ve given them greater flexibility for future elections as well. Notably, since setting the 90-day deadline in state law, Ohio has been forced to pass legislative fixes – twice – to clear a presidential nominee for the ballot.
But that clean bill approach rankled some Republicans in the House, such as state Rep. Brian Stewart, R-Ashville, who tweeted about the issue. Why, if Republicans are voting for legislation to help a Democratic presidential candidate, wouldn’t they at least try to extract concessions?
At the same time, the Senate’s inclusion of language prohibiting campaign funding from foreign nationals was a non-starter for Democrats.
“Foreign money is already illegal for federal campaign finance laws and state finance laws,” Minority Leader Allison Russo argued. “What they are actually doing is undermining ballot initiatives and silencing the peoples’ voices.”
“But you know, listen,” she said, “Biden will be on the ballot. We’ve always known that the legislative fix was not the only route.”
Although she didn’t close the door on addressing the matter with legislation, she acknowledged the timeline isn’t working in their favor. Lawmakers can always pass a bill with an emergency clause to ensure it takes effect immediately, but that raises the bar for passage – two-thirds of the members have to agree. Other options on the table include going to court or holding a kind of virtual convention to declare Biden’s nomination early.
The problem with the Democratic National Convention’s timing was first brought to light by Republican Secretary of State Frank LaRose. He’s thrown up his hands, claiming he’s powerless to do anything, but he took a different tack when it comes to ballot access for his own party’s candidate.
The secretary went so far as to travel to Washington, D.C., for oral arguments in a U.S. Supreme Court case considering whether states could keep former President Donald Trump off the ballot. A Colorado court determined Trump’s attempt to overturn the 2020 election on January 6, amounted to an insurrection under the 14th Amendment.
“I owe a duty to the people of Ohio,” he said in a video outside the court building, “eight million registered voters, to make sure that they have the opportunity to cast their vote, and that that vote will result in them being able to choose their party’s nominee for president and eventually their president.”
“I think that the court should send down a very clear decision that the voters – not a judge, not a secretary of state – gets to decide,” he added.
In a unanimous decision, the justices said only Congress can make a determination about insurrection. But with the tables turned, and Democrats’ “opportunity to cast their vote” in the balance, his response has been different.
In a Wednesday statement, he insisted “the easiest way” to get Biden on the ballot, “is to pass temporary legislation that adjusts the deadline by which they can certify their nominee to my office.”
He laid the blame for inaction at the feet of the minority party, rather than the Republican leaders who control both chambers of the legislature.
The neverending Speaker’s race
Speaker Stephens has faced dissension within his party’s ranks since winning the gavel, because he built that majority with the help of Democrats. At the very outset of Wednesday’s session, half a dozen hard-right members stood and shouted out motions to vacate his speakership. Stephens didn’t entertain those motions. At least one of those members packed up his things and left the chamber.
His decision to adjourn without taking up the Senate proposal shocked many Republican members.
“What about 114?” Rep. Scott Lipps, R-Franklin, shouted.
Rep. Rodney Creech, R-West Alexandria, who had shouted out a motion to vacate earlier, mad the comment “you’re consistent – you take care of the 32,” in reference to the chamber’s Democratic members.
Speaking after the session, Stephens bristled somewhat at the focus on the presidential ballot changes.
“We did pass a lot of really good bills today, which I think is important,” he said. “I think that you know President Biden will end up on the Ohio ballot as we go forward.”
Remarkably, the House’s legislative fix, SB 92, still isn’t dead. Lawmakers “informally passed” the bill which leaves it in a kind of limbo. It’s still on the legislative calendar, and the Speaker can call it up for a vote whenever he likes. But taking that route would require an emergency clause.
“I mean, it’s a technical issue, so it should be able to be done,” Stephens said about the possibility of approving emergency legislation.
“But if we can’t, we can’t.”
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NICK EVANS
