Ohio’s Ballot Initiative Process Debated at Sixth Circuit

Several Ohio voters challenged the constitutionality of the state’s ballot initiative process and told a Sixth Circuit panel that local election boards should not be able to veto the placement of voter-approved issues on the ballot.

Marcia McCoy drops her ballot into a box outside the Cuyahoga County Board of Elections, Tuesday, April 28, 2020, in Cleveland, Ohio. (AP Photo/Tony Dejak)

CINCINNATI (CN) — A group of environmentally concerned Ohioans argued on Tuesday to reinstate a First Amendment challenge to the state’s ballot initiative process after several proposals to ban fracking were denied certification for local elections.

Numerous county boards of election and Ohio Secretary of State Frank LaRose were sued in 2019 after ballot initiatives supported by a significant number of voters were rejected as being “outside the scope of a political subdivision’s authority.”

The petitioners behind the initiatives — most of which dealt with fracking, clean water and air standards — made First Amendment claims against Ohio’s “ballot access scheme,” which they said deprived citizens of the right to local self-government.

U.S. District Judge Benita Pearson, an Obama appointee, dismissed the case in April 2020 and found the laws governing ballot initiatives were content-neutral and did not impose a severe burden on the petitioners’ constitutional rights.

“As plaintiffs have not been burdened with ‘virtual exclusion from the ballot,'” Pearson wrote, “their First Amendment claims do not contain facial plausibility required to survive a motion to dismiss.”

In their brief to the Sixth Circuit, the voters argued Pearson’s decision cuts against Ohio Supreme Court precedent that allows referendums on potentially unconstitutional amendments.

“The Ohio Supreme Court recognizes a mechanism where the people first vote, then the measure is assessed for its constitutionality and legality in a court, post-election. This approach has worked satisfactorily for decades,” the brief said.

The voters argued the current methods grant “sweeping pre-election discretion to the executive branch” to stifle debate among Ohioans, and also “guts the power of people to bring up their own legislative proposals as a counterpoint to governmental legislating.”

Secretary of State LaRose succinctly refuted the plaintiffs’ claim in his brief, and said the “challenged laws simply ensure that all initiatives put to a vote are in fact eligible for ballot inclusion.”

LaRose pointed out electors are free to challenge the decision of a board of elections by seeking a writ of mandamus with the state’s high court and defended his office’s interests in keeping certain issues off the ballot.

“Ballot-access laws,” he said in the brief, “prevent ballot overcrowding and thereby promote informed participation in the political process … [while also] prevent[ing] confusion that would result from allowing voters to enact initiatives — binding laws — that are beyond the people’s power to enact.”

Attorney Terry Lodge argued Tuesday before the Sixth Circuit on behalf of the 12 Ohioans who filed the lawsuit and spoke about the history of the ballot referendum in the Buckeye State, which he said dates back over 100 years to 1912.

U.S. Circuit Judge Julia Smith Gibbons, a George W. Bush appointee, asked about the mandamus review mentioned by LaRose in his brief, and specifically whether his clients could challenge decisions made by the boards of election via the state’s supreme court.

Lodge admitted they could, but called it a “very troubling remedy” because of the abuse of discretion standard that must be employed by the court.

U.S. Circuit Judge Chad Readler, a Trump appointee, proposed a hypothetical scenario in which a group of voters put forth a referendum that would allow only white men to own land in a certain county.

Readler asked the attorney whether such a referendum should be placed on the ballot, as long as it met signature requirements.

“My short answer is yes,” Lodge said.

The attorney expounded on his answer and pointed out that elected officials could voice their opposition to the law during the election cycle, and that courts could strike it down as unconstitutional if it passed.

Attorney Kyser Blakely argued on behalf of Ohio and focused the majority of his time on the appeals court’s 2019 ruling in Schmitt v. LaRose.

Blakely told the court the ruling in Schmitt — which also dealt with a First Amendment challenge to the ballot initiative laws — controls in the current case, and that the screening process does not represent a severe burden to petitioners.

Readler asked the state’s attorney about his hypothetical involving a referendum to allow only white males to own land, and Blakely agreed with his counterpart that it could be placed on the ballot.

“Election boards assess if initiatives fall within the legislative power,” he answered.

The attorney emphasized the plaintiffs in the current case have challenged the same screening process that was upheld in Schmitt, and that the avenue of mandamus review before the state supreme court has always been available.

In his rebuttal, Lodge urged the court to reinstate his clients’ case and reiterated his belief that courts should be involved in referendums only after they become law.

“It is not the courts’ job to decide what legislative decisions should be considered by the legislature,” he said, adding that Ohio’s current ballot initiative laws “let the fox guard the henhouse” and strip power from the hands of the electorate.

U.S. Circuit Judge Helene White, also a George W. Bush appointee, rounded out the panel.

No timetable has been set for the court’s decision.

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