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Vax-A-Million seen as unorthodox, but legal way to promote vaccines in Ohio

Posted at 6:47 AM, May 14, 2021
and last updated 2021-05-14 06:47:57-04

The following article was originally published in the Ohio Capital Journal and published on under a content-sharing agreement.

New Jersey is offering free beer and New York is offering tickets to Yankee stadium.

Ohio, meanwhile, is offering a much bigger incentive to getting the COVID-19 vaccine: $1 million in cold, hard cash.

Gov. Mike DeWine’s announcement of a “Vax-A-Million” lottery has turned heads this week, with Ohioans debating the merits of the program and whether or not it will drive more people to schedule vaccine appointments.

Some have posed a more fundamental question: Is this vaccine lottery even legal?

Here are the basics:

  • There will be five weekly drawings beginning May 26, with each week’s winner receiving $1 million.
  • Ohioans who are at least 18 years old and have received at least one vaccine dose (as of the drawing date) are eligible.
  • The winnings will be paid for using federal coronavirus relief dollars. Winners will be taxed on their earnings.
  • Those under 18 who get vaccinated will be eligible for a separate drawing to receive a 4-year full scholarship to any university in the state.

Dan Tierney, a DeWine spokesperson, said the governor’s office is developing the Vax-A-Million program with guidance from staff legal counsel. Tierney also told the New York Times that DeWine’s office did not seek guidance from the federal government ahead of announcing the program.

Nor did the office consult Attorney General Dave Yost, although the state’s top law enforcement official sees no immediate legal concerns with the drawings.

“At first blush, the concept does not appear to violate state law, though that will be dependent upon how it is designed,” Yost said in a statement provided to the Ohio Capital Journal.

The Ohio Constitution generally prohibits lotteries, except for the state lottery regulated by the Ohio Lottery Commission (which gives all proceeds toward education purposes). There are other exceptions for regulated casino play and charitable bingo.

Vax-A-Million, so named because of the nationwide Mega Millions jackpot, differs from the state lottery in that Ohioans don’t have to buy tickets to enter and there is no money directed to education.

Also, the Ohio Department of Health will be the agency administering the program — with the Ohio Lottery Commission assisting as needed, DeWine said.

These differences point to the Vax-A-Million technically not being a lottery and thus not running afoul of the state’s lottery restrictions, said Ryan Stubenrauch, a Columbus lawyer who formerly served as assistant attorney general and as a political consultant to DeWine.

“We’re in unprecedented times,” Stubenrauch said of the Vax-A-Million drawings. “Desperate times call for desperate measures, I suppose.”

The governor has defended his legal authority to spend federal relief dollars for this program.

Relief packages approved by Congress have given enormous sums of money to state governments along with wide latitude for how they can spend it.

Vaccines are the most effective tools in battling the virus, DeWine said, presenting Vax-A-Million as simply being another attempt at convincing Ohioans to get their shots.

“I think about this every day and I think about what more can we do to slow the virus, get us totally back to normal, save lives, protect people,” DeWine said on Thursday. “The answer always gets back to vaccination. Vaccination, that is the key.”

DeWine is not the only governor promoting a financial incentive for the COVID-19 vaccines. West Virginia Gov. Jim Justice sought to give $100 savings bonds to all residents under 35 who were vaccinated, though his plan has seen its own legal snags.

A spokesperson for the U.S. Department of the Treasury did not respond to a request for comment about the Ohio program.

The Ohio Controlling Board has already allocated this funding to the state health department, which plans to use leftover dollars to cover the more than $5 million in total winnings.

DeWine said he spoke to Ohio’s legislative leaders — House Speaker Bob Cupp and Senate President Matt Huffman, both Lima Republicans — before announcing Vax-A-Million and neither raised any legal issue concerns.

The governor may still face a challenge from the legislative rank and file, who have largely panned the drawings as being a wasteful use of taxpayer dollars.

“Just because a thing may be legally done does not mean it should be done,” Yost added in his statement. “The wisdom and propriety of this expenditure is a question for the Governor and the General Assembly.”

State Rep. Haraz Ghanbari, R-Perrysburg, takes issue with the Vax-A-Million program.

State Rep. Haraz Ghanbari, R-Perrysburg, issued a statement calling on lawmakers to place “additional accountability” for the Vax-A-Million program, which he complained is “the most recent example of the Governor making a decision in a vacuum and not working with the legislature.”

Micah Berman, an associate professor of public health law at Ohio State University, said he has no major objection to the drawings but believes “it can’t be all that the government does.”

Besides general vaccine hesitancy, Berman noted there remain other accessibility hurdles such as a person who cannot afford to miss time from work to deal with expected side effects.

“The vaccine lottery doesn’t do anything to address those structural obstacles,” Berman argued.

The attorney general offered some levity on the subject, tweeting out a video to the Barenaked Ladies song entitled “If I Had $1,000,000.”

The lyrics tell of various ways to spend a million dollars: on clothes, art, exotic pets and a tree fort.

“If I had a million dollars,” the song’s lyrics conclude, “I’d be rich.”

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