House Speaker Jason Stephens presiding over an uncharacteristically packed Rules Committee hearing. Some members of the public forced to leave, watched through the windows from outside. (photo by Nick Evans)
It remains an open question, however, just when voters might weigh in on the issue
The stage is set for a long-awaited House vote on SJR 2. The resolution would ask voters whether the threshold for amending the constitution should be 60% rather than a simple majority.
But lawmakers pushing the plan may not be celebrating yet. A parallel effort to send the question to voters before they consider an abortion rights amendment seems to have fallen short.
Supermajority amendment backers are now left to decide whether to accept half a loaf, or to try some last-minute maneuver to set up an August special election.
Speaking after the vote to place SJR 2 on the House calendar, the House speaker and the minority leader said they expected the latter. But it’s not clear what that gambit might look like, or if it would succeed.
Placing the 60% amendment on the ballot in August was never part of the plan. Lawmakers voted to get rid of those elections around the same time the first attempt at imposing a supermajority threshold fell apart. They only thought to revive August elections after the latest supermajority effort missed the deadline for the May primary.
Lawmakers pursued a May and then an August election to ensure an abortion rights amendment would have to clear a higher bar. But that argument didn’t move everyone in the Republican caucus.
Rep. Sharon Ray, R-Wadsworth, offered an amendment to SJR 2 stripping out reference to August elections.
“When we did away with August special elections last year after we put our precinct election officials through a very difficult year, you know, we said we were not going to do this anymore,” Ray explained.
She added the upcoming calendar is a bit of a disaster for boards of elections. In addition to conducting a special election, they have to manage filings for local candidates running for school board, city council or mayor this November.
Election day in August would be August 8. The deadline for those local filings? August 9.
“In addition to two different election calendars that are overlapping they’ll have all these filings and I just don’t think it’s fair,” Ray said.
Still, Ray said her reticence only extends to the August elections—not the underlying supermajority proposal.
“I think August, to spend $20 million for an election that’s going to have probably an 8% turnout is really not our best option,” Ray said. “A November election, I will vote to put it on the ballot so people can decide then.”
The Rules committee
Ray’s amendment is unusual for its timing, coming up in the Rules and Reference Committee. It’s typically the last stop for legislation before going to the House floor. It gives House Speaker Jason Stephens, who leads the committee, significant control over when and if a proposal goes before the chamber.
But while the Rules committee sets the agenda, it rarely deals with policy amendments. Tuesday, after a two-and-a-half-hour delay, the committee met, and approved Ray’s changes. Every Republican on the committee – with the exception of state Rep. Jay Edwards, R-Nelsonville – voted to advance the proposal to the floor.
“We’re close to this being jammed down our throats and I think it’s wrong, and I don’t think there was enough discussion had on this entire premise,” Edwards argued.
Every Democrat voted against advancing SJR 2.
Notably, if the House approves changes to SJR 2, the Senate would have to agree before it makes the ballot.
Despite Ray’s amendment excising August election provisions, Republican and Democratic leaders had no illusions about the issue being dead. House Minority Leader Allison Russo said she expects an amendment when the resolution comes up for a floor vote.
“Well, certainly they can get on the floor tomorrow and take that language right back out and amend it, which I wouldn’t be surprised if that happens,” Russo said. “So, you know, some of this is theatrics, I think.”
Russo argued that even if Republicans are successful, the proposition is a loser at the ballot box — regardless of when it goes before voters.
She also criticized Speaker Stephens for letting the resolution advance. Stephens only won the speakership with the support of Democrats, and his reluctance to advance a supermajority measure was a big reason why. But Russo sidestepped questions of whether Stephens had violated a deal with Democrats.
“This isn’t about reneging on Democrats,” she said. “It’s about reneging on the people of Ohio and taking away a right that they have had for over a century.”
For Stephens’ part, he echoed Russo’s expectations about last minute floor amendments.
“There will probably be more than one amendment, I guess, on this resolution tomorrow, one of the amendments will probably be for an August election,” Stephens said. “So, we’ll have that debate tomorrow.”
And the August election is not a problem, Stephens said. He offered the dubious assertion they can hold one without passing any additional legislation at all.
“Yeah, the legislature has the constitutional authority to create an election day,” Stephens argued.
This despite lawmakers passing a bill just months ago limiting August elections to municipalities in fiscal emergencies or primaries for Congressional vacancies. And despite lawmakers working, and eventually failing, to pass legislation this session to explicitly allow special elections for amendments offered by the general assembly.
Can he do that?
Steven Steinglass, dean emeritus at Cleveland State’s law school and one of the foremost experts on the Ohio Constitution, flatly rejected Stephens’ contention.
“The answer is they do not have that power, and if that is what he said he’s getting bad advice from his lawyers or whoever he seeks advice from,” Steinglass said.
The problem, he explained, is that recent legislation restricting the circumstances under which an August election can happen. Those restrictions are in statute, and a joint resolution doesn’t change statutes. In the end it boils down to a separation of powers issue.
“It’s been clear for 125 years that you cannot add statutory type language to a joint resolution,” Steinglass explained. “They’re two different legal instruments, if you will. The point is that the governor has no role regarding joint resolutions, but the governor could veto a statutory change.”
He cited the relevant case law from 1897, as well.
“The Ohio Supreme Court said, and I quote, the statute law of the state can neither be repealed nor amended by a joint resolution of the General Assembly,” Steinglass said.
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