Republican Secretary of State Frank LaRose will now decide whether to remove Akron’s Democratic U.S. Rep. Emilia Sykes from the Summit County voter rolls ahead of the November election. The decision will have no weight on her ability to continue holding her office, but it has been used as campaign fodder by Republicans, including Sykes’ opponent in the Nov. 5 election, former state lawmaker Kevin Coughlin.

The case stems from an ethics form filed in February by Sykes’ husband, Kevin Boyce, a Democratic elected commissioner for Franklin County, which includes Columbus. On the form, Boyce listed Sykes under a section labeled “spouse residing in household.” A local Republican activist cited the form in a complaint in late September saying that led him to believe Sykes doesn’t live at the Akron apartment where she’s registered to vote.

Ohio gives wide latitude to voters with multiple residences, like retirees with a vacation home, to pick which one they consider to be their home for voting reasons. A seminal case involving a politician happened in 2009, when the Ohio Supreme Court ruled in favor of Lt. Gov. Jon Husted, who at the time was a Republican state lawmaker, who was allowed to maintain his voting registration in the Dayton area after he got married to a woman in the Columbus area. In that case, Husted testified he “intended to return” to his Dayton-area home once he was done serving as a legislator.

Republican board members on Thursday pointed to the Husted decision while nonetheless voting Thursday in favor of canceling Sykes’ registration. One, Bryan Williams, said he believed Boyce’s form proved Sykes lives in Columbus. The other, Ray Weber, said he believes Sykes lives in Akron, but cited a section of state law that says someone is presumed to live with their spouse unless they’re legally separated.

“In my mind, she left left. Maybe Mr. Williams and I disagree on that, but OK, she never left,” Weber said. “But the law says that wherever your family is.”

Both suggested they may have ruled differently had Sykes testified in person on Thursday.

“If Ms. Sykes were here, she could testify ‘I intend to return,’” Williams said. “But she’s not.”

Democratic board members William Rich and Valerie McKitrick voted to reject the complaint.

“I’m not a lawyer so perhaps I have an overly simplistic view… I think we’re done here. I think she’s set forth what she needs to set forth,” McKitrick said.

Sykes’ attorney says she lives in Akron

Sykes’ campaign has cast the decision to even hold the hearing as a political stunt meant to embarrass Sykes and distract from more substantive issues in the final days of a heated election between her and Coughlin.

“I am a proud daughter of Akron and I am grateful to call this community my home,” Sykes said in a statement. “Anyone who says otherwise is purposely spreading a deeply offensive lie for political purposes. This attempt to disenfranchise my vote only serves to distract from the issues that are of top concern to this community – lowering costs, keeping our communities safe, quality affordable health care, and protecting our freedoms and democracy.”

Don McTigue, a Democratic elections lawyer, appeared Thursday on Sykes’ behalf. He said her position is that she never has left her Akron home. He also questioned the legal propriety of the hearing, saying it occurred after a state legal deadline.

During Thursday’s hearing, McTigue provided the elections board with a sworn affidavit, a type of legal document, from Sykes saying she’s lived at the Akron address where she’s registered to vote for 10 years, and that all her possessions are there.

In the affidavit, Sykes wrote she sometimes visits Boyce in Franklin County and that he sometimes visits her in Akron. McTigue also shared a written affidavit from Boyce saying he listed Sykes on the form out of caution, as well as copies of mail sent to Sykes’ Akron address like bills, pay stubs and a car insurance policy.

“Emilia’s grandparents grew up in the South… They were not able to vote until the Voting Rights Act passed. And they probably could never have fathomed once they got the right to vote and their daughter got the right to vote they probably still never would have been able to fathom that she would become a state representative let alone a U.S. congressperson. But that’s what she did because she was allowed to vote. And it is a right that people have fought for for many many years,” McTigue said. “What you are attempting to take away her right to vote.”

But Bryan Williams and Ray Weber, the election board’s two Republican members, disregarded the affidavits, saying they couldn’t ask the document questions.

“In the absence of Ms. Sykes I give it very little weight or no weight at all,” Weber said.

Mike Marinella, a spokesperson for the National Republican Campaign Committee, issued a statement criticized Sykes for not attending the hearing.

“There are serious concerns about Emilia Sykes’ voter eligibility, and she couldn’t even bother to show up to make her case. That should tell Northeast Ohioans all they need to know about Sykes’ commitment to them. Emilia Sykes cannot be trusted,” Marinella said.

Who is behind the complaint?

The Board of Elections or the activist who filed the complaint, Tom Zawistowski, could have subpoenaed Sykes or Boyce, forcing them to attend the hearing, McTigue said. But they didn’t.

“Even if you were to infer there was some weight to [Boyce’s] ethics statement, the fact is that under Ohio law, a person can have more than one residence and no evidence has been put forward to establish that [Sykes’ Akron address] is not a bonafide or legitimate residence for the congresswoman,” McTigue said.

Zawistowski addressed the board for less than a minute. He didn’t provide any additional evidence beyond his complaint, which included Boyce’s ethics form. He also filed records involving a Franklin County home owned by a Sykes’ family trust, although the elections board didn’t focus on that issue during their review.

“Looking at documents that were available publicly it seems that her residence was in Columbus not here,” Zawistwsoki said. “That was surprising to me. I felt that it should be investigated so I decided to step forward and see if you could figure out what her true residency is.”

A lawyer who appeared with him later said that unlike in the Husted case, Sykes failed to testify in person.

What’s next?

LaRose will have to cast a tie-breaking vote. He already has sided with Republicans on the Summit County elections board once in the case, when last week broke a tie voting for Thursday’s hearing to be held.

Elections board members debated Thursday whether it’s too late to cancel Sykes’ registration to make a difference in the November election, since federal law generally prohibits state officials from making changes to the voting rolls close to the election.

While the case is pending, Sykes still has the ability to cast an early vote from her address in Akron. She indicated Thursday that’s what she plans to do.

“I will vote in this election as is my legal and constitutional right and I encourage all eligible voters to do the same,” Sykes said.

The race between Sykes and Coughlin is one of Ohio’s two competitive congressional races and one of only a few dozen competitive congressional races in the country. Republicans are trying to oust Sykes as they aim to protect the slim majority in the House. Two prominent nonpartisan political analysis outlets – Sabato’s Crystal Ball and The Cook Political Report – reclassified the race from “toss-up” to “leans Democrat” on Thursday, citing Sykes’ fundraising advantage.

Sykes, a former state lawmaker and member of a prominent Akron political family, was first elected to Congress two years ago.