CINCINNATI (CN) — The Sixth Circuit upheld Ohio’s citizen initiative processes in an unpublished ruling Friday afternoon, thwarting the hopes of a collection of environmentalists who hoped to use it to pass local laws on green issues.
Each process requires that a county board of elections evaluate any proposed ordinance or charter initiative to determine whether it falls within the purview of the municipal code or charter the petitioners seek to amend. A group of petitioners sued several boards of election and Ohio Secretary of State Frank LaRose in 2019, alleging that the boards’ denials of certification to several fracking ban proposals were based on an unconstitutional delegation of authority.
The petitioners included members of environmental groups Frackfree Mahoning Valley, Toledoans for Safe Water, the Columbus Community Rights Group, the Portage Community Rights Group, the Athens Community Bill of Rights Committee and Sustainable Medina County. They also took issue with LaRose’s approval of the boards’ decisions, most of which were premised on a failure to sufficiently outline county officers’ roles in relation to the proposed changes to the law.
A state statute that lays out that requirement and others, the plaintiffs argued, violated the First, Fourteenth and Ninth amendments to the U.S. Constitution and the separation of powers outlined in Ohio’s Constitution.
U.S. District Judge Benita Pearson, a Barack Obama appointee, dismissed the case in April 2020. On Friday, the Sixth Circuit’s three-judge panel comprised entirely of Republican appointees affirmed her dismissal, finding no constitutional violations in the statutes and deciding that state-law claims were barred by sovereign immunity. One petitioner’s claims were dismissed for issues of standing.
“The Initiative Authority Statutes are not content based because they apply ‘to all initiative petitions, no matter the topic discussed or idea or message expressed,’” Circuit Judge Julia Smith Gibbons, a George W. Bush appointee, wrote the opinion. Applying Anderson-Burdick scrutiny, a flexible analysis applied to regulations on voting that do not deny franchise to a particular group, Gibbons and fellow George W. Bush appointee Circuit Judge Helene White found no First Amendment issue.
“The plaintiffs do not provide a coherent explanation of how the moderate requirements for initiatives prevent them from accessing the ballot,” Gibbons wrote.
She was also unimpressed, she wrote, by the petitioners’ allegations that their petitions were rejected because of a shifting legal landscape around such petitions.
“The plaintiffs failed to succeed in placing their measures on the ballot not because of ‘shifting standards,’” she wrote, “but because they failed to comply with the basic requirements of Ohio law.”
Gibbons dismissed the petitioners’ Ninth and Fourteenth Amendment claims succinctly, giving no credence to their claims that each protects the right to local self-government. “The plaintiffs cite cases addressing only the fundamental right to vote, which is not ‘the right of local community self-government’ that the plaintiffs have identified here,” Gibbons wrote in her discussion of the Fourteenth Amendment claim.
Circuit Judge Chad Readler, a Donald Trump appointee, added a concurrence in which he argued that his colleagues had unnecessarily applied their heightened scrutiny to the laws.
“This case does not concern ballot access for a particular candidate,” he wrote. “Nor does it implicate the right to vote. Whatever the contours of that right, nothing in the Constitution requires a state to provide a right to legislate by ballot initiative.”
Readler added that he saw the application of Anderson-Burdick scrutiny to the petitioners’ claims as falling on the wrong side of a circuit split. He cited the Supreme Court’s stay of another case, Little v. Reclaim Idaho, as pointing to a possible resolution to that split.
“If Little is any indicator, the Supreme Court will soon take up the opportunity to resolve the deep circuit split over the framework for measuring challenges to state ballot initiatives,” he wrote. “When it does, the Supreme Court would be wise to correct our error.”
“We’re pleased that the federal appellate court upheld the constitutionality of the Ohio statutes that were challenged," said Robert Nichols, spokesman for the Secretary of State's Office.
Plaintiffs' attorney Terry Lodge said they are discussing the option of an en banc review.
"We're disappointed, of course, because the thrust of the court's determination is to allow laws where election officials actually get to veto initiative proposals because they are censoring the contents of what can be put on the ballot," Lodge said. "This is potentially fatal to the right of initiative."
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