CINCINNATI (CN) – The constitutionality of Ohio’s ballot initiative procedure, which offers no appeals process for petitioners who are denied, was debated Wednesday before a Sixth Circuit panel.
William Schmitt and Chad Thompson sued then-Ohio Secretary of State Jon Husted in 2018, after ballot initiatives that called for the decriminalization of marijuana were rejected by the Portage County Board of Elections.
Under Ohio’s statutory scheme, the board acts as a “gatekeeper,” and has sole discretion to determine whether initiatives fall “within the scope of authority to enact via initiative and whether the petition satisfies the statutory prerequisites to place the issue on the ballot,” according to court records.
Schmitt and Thompson claimed the process by which their initiatives were denied violated their due process rights because it deprived them of the chance to appeal.
Secretary of State Husted, who has since been replaced by Frank LaRose after being elected lieutenant governor, argued the process is constitutional because petitioners can seek a writ of mandamus before the Ohio Supreme Court.
U.S. District Judge Edmund Sargus Jr. disagreed with the state, ruling the avenue of mandamus relief is not an “adequate review process.”
In February, Sargus granted Schmitt and Thompson’s motion for a permanent injunction to allow direct appeals of decisions by county election boards.
“In the ballot initiative process,” the judge wrote, “the state of Ohio has not provided plaintiffs an adequate review process. Instead, the gatekeeping function enables a board of elections – an executive body – to make legal determinations without providing denied petitioners a right to review.”
Attorney Ben Flowers argued Wednesday on behalf of Ohio, telling the Sixth Circuit panel that the First Amendment does not apply to ballot initiative issues.
“The process of making law is not subject to the First Amendment,” Flowers said.
The state’s attorney cited several cases from the Ohio Supreme Court in which petitioners successfully filed mandamus actions and had their initiatives placed on the ballot.
U.S. Circuit Judge John Bush asked about the standard of review in those cases.
Flowers responded that the state’s high court essentially reviews them de novo, paying no deference to the decisions made by the election boards.
The attorney concluded his arguments by pointing out that if Schmitt and Thompson had filed for a writ of mandamus, they would have been successful.
“This should have been on the ballot,” Flowers admitted.
Attorney Mark Brown argued on behalf of Schmitt and Thompson, and disputed his opposing counsel’s claims regarding mandamus actions filed with the state’s high court.
“It’s a roll of the dice in the Supreme Court,” he told the panel, adding that the court has never applied de novo review in ballot initiative cases.
U.S. Circuit Judge Eric Clay told Brown that the Ohio Supreme Court seems like the proper venue to resolve these disputes, and asked why his clients didn’t use the processes already in place.
“If you don’t like the decision, you go to the Supreme Court,” Clay said. “They get paid very well to make … these kinds of decisions.”
In his rebuttal, Flowers pointed out that both initiatives were eventually placed on their respective city ballots, and one of the measures passed.
U.S. Circuit Judge Helene White asked why the case wasn’t mooted by those developments.
Flowers responded that if the case was argued as an as-applied challenge to the initiative process, it would be moot.
He also pointed out that the state attorney general’s office has received numerous phone calls from board of elections officials who are confused about the initiative process in light of Judge Sargus’ permanent injunction.
There is no timetable for the court’s decision, but Flowers said the state hopes to have resolved all ballot initiative issues by Aug. 7.