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July 20, 2020

Honorable Dave Yost


Ohio Attorney General
c/o Opinions Section
30 East Broad St., 26th Floor
Columbus, Ohio 43215

Re: Request for a Formal Opinion

Dear Attorney General Yost:

Recently, I have been asked whether under Ohio law there may be more than one
secure ballot “drop box” in a county in which voters who requested and voted their
absentee ballots may deposit their voted ballots to return them to their county board of
elections. The answer to that question is not clear, and I am seeking your advice on this
question.

As you know, Ohio is a leader among the states with regard to voter access, with
four weeks of early voting by mail and early, in-person voting available to every registered
voter with no requirement that an excuse be provided. Specifically, absentee voting is
provided for in Chapter 3509 of the Ohio Revised Code. After a voter receives their
absentee ballot at their residence and votes their ballot, R.C. 3509.05 provides two
methods for the voter to return their voted absentee ballot to their county board of
elections:

The elector shall mail the identification envelope to the director from whom
it was received in the return envelope, postage prepaid, or the elector may
personally deliver it to the director, . . .1 The return envelope shall be
transmitted to the director in no other manner, except as provided in section
3509.08 of the Revised Code.

1
The statute goes on to say that certain designated relatives of the voter may also “deliver [the voted
ballot] to the director.”
(Emphasis added). Other than the special procedure prescribed in R.C. 3509.08 for the
voting and return of absentee ballots by persons who are disabled, hospitalized, or
confined in a correctional institution, permanent Ohio law does not provide for any other
method by which a voted absentee ballot may be returned to a county board of elections
other than the two methods specified in R.C. 3509.05.

After the then-Director of the Department of Health issued an order prohibiting


the polls from opening on March 17, 2020 to stop the spread of COVID-19, the General
Assembly passed, and the Governor signed into law, H.B. 197. H.B. 197 became effective
immediately on March 27, 2020 due to the inclusion of an emergency clause. Among a
number of other COVID-19 relief provisions in the bill, Section 32 of H.B. 197 contained
uncodified law provisions for the completion of the 2020 Primary Election. The bill set
April 28, 2020, as the conclusion of the continued 2020 Primary Election and provided
that but for two, limited classes of voters, all other voters who had not yet voted in the
2020 Primary Election and who still wished to vote had to do so by mail through
requesting absentee ballots.2

Notably, the bill did not change the two absentee ballot return methods provided
for in permanent law in R.C. 3509.05: mailing the absentee ballot back to the board or
personally delivering it to the director. But Section 32(E)(1) of H.B. 197 provided an
additional method for returning a voted absentee ballot to the board that is not provided
for in R.C. 3509.05:

Absent voter's ballots and provisional ballots cast at any time before or after
the effective date of this section by electors who were registered to vote in
this state as of February 18, 2020, for the March 17, 2020, primary election,
or for any special election held on the day of the primary election, shall be
eligible to be counted if they are received at the office of the appropriate
board of elections not later than 7:30 p.m. on April 28, 2020. The board shall
place a secure receptacle outside the office of the board for the return of
ballots under this section. Except as otherwise provided in divisions (E)(2)
and (3) of this section, ballots received after 7:30 p.m. on April 28, 2020, shall
not be counted.

(Emphasis added). Presumably, the General Assembly required the installation of these
secure receptacles to permit voters to deposit their voted absentee ballot without coming
in contact with an election official or with other voters.

2
See Sections 32(C)(3) and (D)(1) of H.B. 197.

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To comply with H.B. 197, each of the eighty-eight county boards of elections were
directed to provide some form of a “secure receptacle outside the office of the board for
the return” of voted absentee ballots during the conclusion of the 2020 Primary Election.
The county boards of election did so, and to the best of my knowledge, those secure
receptacles are still in place at each of the eighty-eight county boards of election.

However, Section 32(E)(1) of H.B. 197 is uncodified, “temporary” law that appears
to specifically relate only to the extension of the 2020 Primary Election, in which voting
concluded on April 28, 2020. H.B. 197 did not make any permanent law changes to Ohio’s
election laws in Title 35 of the Revised Code, and in particular, it did not change R.C.
3509.05 which provides that a voted absentee ballot may be returned only by mail or by
delivering it “to the director.” Given that, is the requirement in Section 32(E)(1) of H.B.
197 that county boards of election place a secure receptacle outside the office of the
board for the return of voted absentee ballots still in effect such that the county boards
of election may continue to use the secure receptacles for the 2020 November General
Election and beyond for absentee voters to return their voted ballots to the board?

Second, even if the county boards of elections may lawfully continue to use the
one secure receptacle outside their offices, does Ohio law permit the installation of one
or more additional secure receptacles in a county for absentee voters to return their voted
ballots to the board of elections?

It has been my preference that for absentee voting this fall we utilize thousands of
secure receptacles all across the State of Ohio – i.e., the blue United States Postal Service
mailboxes found in our neighborhoods, shopping centers, workplaces, and government
buildings. Certainly, any absentee voter willing to pay the postage to mail their voted
ballot can avail themselves of that option rather than taking their ballot to their board of
elections. But because county board of election are prohibited by law from paying the
voter’s return postage,3 and because the General Assembly has not appropriated to my
office the funds that would be necessary for us to provide all Ohio absentee voters with
postage-paid return envelopes for them to mail their voted absentee ballots back to their
county boards of elections, I have been asked whether there may be additional secure
receptacles installed in a county for absentee voters to drop off their voted absentee
ballots. Section 32(E)(1) of H.B. 197 authorized only a single receptacle per county
specifically located outside the board of elections and R.C. 3509.05 does not speak to the
issue at all.

Therefore, I am asking for your answers to the following questions:

3
See R.C. 3509.04.

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1. May the county boards of elections continue to use the single, secure receptacle
each county board installed for the completion of the 2020 Primary Election for
absentee voters to return their voted ballots during the 2020 General Election and
beyond when the only legal authorization for the installation of those single
receptacles is found in uncodified, temporary law related to the completion of the
2020 Primary Election (i.e., Section 32(E)(1) of H.B. 197) and not in the permanent
law of Ohio (i.e., R.C. 3509.05)?

2. Even if a county board of elections may continue to use the single, secure
receptacle each board installed for the completion of the 2020 Primary Election,
does Ohio law permit the installation of one or more additional secure receptacles
in a county for voters to return their voted absentee ballots to the board during
the 2020 General Election? Or must the General Assembly pass legislation to
authorize the installation and use of more than one secure receptacle in a county?

Your answers to these questions will provide much needed clarity on these issues
and will help determine whether legislative action will be necessary.

Yours in service,

Frank LaRose
Frank LaRose
Secretary of State

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