Ohio ballot initiative debate booted as moot by Sixth Circuit

CINCINNATI (CN) — The completion of the 2024 election cycle mooted First Amendment claims brought by Ohio voters challenging the authority of Attorney General Dave Yost to reject proposed ballot initiatives, an en banc Sixth Circuit ruled Thursday.

The decision, published less than a month after the case was argued, does not doom the entirety of the voters’ lawsuit. But prevents review of their request for a preliminary injunction related to the November 2024 election cycle.

Ohioans Cynthia Brown, Carlos Buford, and Jenny Sue Rowe want to amend the state constitution and revoke qualified immunity defenses for government actors sued in civil rights lawsuits, but Yost has rejected their ballot initiative on eight separate occasions.

The Republican claims the summary of the proposal is not a “fair and truthful” statement of the amendment, while the voters argue he has nitpicked their applications and changed his reasoning with each rejection.

The voters filed a First Amendment lawsuit in federal court after the Ohio Supreme Court denied them expedited review of Yost’s latest rejection, but U.S. District Judge James Graham, a Ronald Reagan appointee, also denied them relief.

A Sixth Circuit panel reversed Graham’s decision in May 2024 and found the voters were entitled to a preliminary injunction, but Yost’s request for en banc review was granted, which allowed for October’s arguments before the entire court.

Thursday’s opinion was per curiam, or “by the court,” and ruled the voters’ case is moot because “the targeted election has come and gone.”

The court emphasized Brown and her fellow litigants focused their request for preliminary relief on the November 2024 election and continually argued before both the lower and appeals courts that time was of the essence because of impending deadlines for that specific election.

The voters’ request for permanent injunctive relief to revoke Yost’s authority to reject proposed amendments is still on the table, but the court reiterated that possibility cannot sustain their preliminary challenge.

“We know of no federal court, and the parties at any rate have not identified one, that permits the non-moot nature of an underlying request for permanent relief to save a moot request for preliminary relief. Much as we squint carefully at any request for preliminary relief to determine whether it could benefit the claimant, we cannot close our eyes when the window for relief actually sought by the claimant has ended,” the court wrote.

U.S. Circuit Judge Karen Moore, a Bill Clinton appointee who wrote the previous panel decision in the case, disagreed with her colleagues and said in a dissenting opinion that granting a preliminary injunction would still provide relief to the voters.

“Such an injunction is not inextricably tied to the now-past November 2024 election. Moreover, granting this relief would still be meaningful to plaintiffs. Plaintiffs’ petition would move forward in the ballot-initiative process. And, after review from the Ohio Ballot Board, plaintiffs could begin collecting signatures to place their initiative on a future ballot,” she wrote.

Moore chided the majority for improperly focusing on the language of the initiative that included election dates, and highlighted the fact that being able to collect signatures for future elections would be meaningful relief for the voters.

U.S. Circuit Judge Amul Thapar, a Donald Trump appointee, agreed with the majority the case was mooted by the completion of the 2024 election cycle, but wrote his own opinion to express his feelings on the merits of the voters’ claims.

Thapar emphasized in his concurrence that “the First Amendment doesn’t give anyone a right to have their speech carry the force of law” and argued voters act as legislators when they submit ballot initiatives and, therefore, are not entitled to First Amendment protections.

“States enjoy broad leeway to regulate the content of initiative proposals and their summaries. Why? States can prohibit citizens from passing laws on some topics and can stop initiatives purporting to pass such laws. States can also provide that amendments with inaccurate summaries can’t become law. Neither procedure restricts citizens’ ability to speak — only their ability to ‘wield a legislative power,’” he concluded.

In her dissent, Moore dedicated several pages as a “Response to Judge Thapar” and was blunt in her assessment of his analysis.

“Judge Thapar is wrong that the First Amendment does not apply to regulations of the ballot-initiative process. The Supreme Court has never cordoned off the ballot-initiative process from First Amendment scrutiny,” she said.

She pointed out the summary provided at the outset of the initiative process is not the language that would eventually appear on the ballot, but is only a “tool” to be used by proponents to garner support for the amendment.

U.S. Circuit Judges Eric Clay, a Clinton appointee, Jane Stranch, a Barack Obama appointee, and Stephanie Davis, a Joe Biden appointee, joined Moore in her dissent.

U.S. Circuit Judge Raymond Kethledge, a George W. Bush appointee, wrote a brief dissent in which he argued the case was not moot and any “ministerial” issues with language citing the 2024 election cycle could be remedied through alterations of the injunction.

He was joined in his dissent by Moore, Clay, Stranch, Davis, and U.S. Circuit Judge Kevin Ritz, a Biden appointee.

Neither party immediately responded to requests for comment.

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