Sixth Circuit Throws Out Ohio Marijuana Ballot Issues

(CN) – Ohio did not violate the rights of two residents who proposed ballot issues that would decriminalize marijuana possession in their towns, the Sixth Circuit ruled on Wednesday.

Last year, William Schmitt and Chad Thompson submitted ballot proposals to the Portage County Board of Elections that would allow residents of Windham and Garrettsville to avoid marijuana-related fines, court costs and consequences related to driver’s licenses.

Despite the fact that the proposals related to a single subject and had enough signatures, the election board declined to certify them because the changes would be administrative, not legislative in nature.

Schmitt and Thompson responded with a federal lawsuit claiming violations of their First and Fourteenth Amendment rights, citing a prior restraint on their free political speech.

The Potter Stewart U.S. Courthouse in Cincinnati, home of the Sixth Circuit Court of Appeals. (Carol M. Highsmith/Library of Congress)

The court granted them a restraining order and ordered the election board and then-Ohio Secretary of State Jon Husted to place the issues on the ballot.

Windham voters approved the decriminalization by a vote of 237 to 206. Voters in Garrettsville rejected the issue, 515 to 471.

The case continued, and the Northern Ohio federal court issued a permanent injunction barring current Secretary of State Frank LaRose “from enforcing the gatekeeper function in any manner that fails to provide a constitutionally sufficient review process to a party aggrieved by the rejection of an initiative petition.”

The state appealed, and the Sixth Circuit Court of Appeals reversed the decision in an opinion written by Circuit Judge Helene White.

She disagreed with the plaintiffs’ argument regarding prior restraint.

“Regulations like these are a step removed from the communicative aspect of core political speech, and therefore do not involve the same risk of censorship inherent in prior-restraint cases,” White wrote.

She stated that the plaintiffs’ option of responding to the board’s decision by asking the court for a writ of mandamus ranged “somewhere between minimal and severe.”

“Although the State’s chosen method for screening ballot initiatives may not be the least restrictive means available, it is not unreasonable given the significance of the interests it has in regulating elections,” she added.

Turning to the Fourteenth Amendment claims, White stated that Ohio elections laws did not violate the plaintiffs’ right to due process.

“Although the district court held that only de novo review will suffice, due process does not mandate any particular standard of review,” the judge stated.

Circuit Court Judge John Bush wrote a partially concurring opinion, stating that First Amendment challenges to election laws “do not warrant heightened scrutiny.”

“The people of Ohio and their elected representatives, through their state constitution and statutes, have determined that only legislative actions are within the municipal power and thus, that the subject of any initiative must be a legislative, rather than an administrative, matter,” Bush wrote. “We are in no position to second-guess this rule.”

Solicitor General Benjamin Flowers argued on the state’s behalf during the June 26 hearing. He did not immediately respond to an email request for comment.

Plaintiffs’ attorney Mark Brown, of the Baker and Hostetler Chair of Law at Capital University Law School, said his clients were disappointed and that he would review the opinion to determine whether to pursue “en banc consideration or Supreme Court review.”

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