“Gavel,” a sculpture by Andrew F. Scott, outside the Supreme Court of Ohio. Credit: Sam Howzit / Creative Commons.
Along party lines, the Ohio Supreme Court on Friday gave the green light to an attempt by Republican leaders of the state’s gerrymandered legislature to make it much harder for voters to amend the state Constitution. The court ruled in a 4-3 decision that it’s OK for the issue to be placed on the Aug. 8 ballot even though the legislature just outlawed such elections in January.
The Republican majority said that regardless of the law, the Ohio Constitution gives the legislature great latitude in deciding when elections will be held. In a dissent, the Democratic minority argued that while that might be the case, the legislature still has to follow the laws it has passed — and change the ones it doesn’t like.
Issue 1 would raise the percentage of votes needed to pass a voter-initiated amendment from 50% to 60%. It would also require that a given number of the hundreds of thousands of signatures needed to get an amendment on the ballot come from each of Ohio’s 88 counties instead of the current 44.
Critics — including bipartisan groups of former governors and attorneys general and more than 240 other groups — say the requirements would make voter-initiated amendments practically impossible. Some add that Issue 1 would greatly enhance the gerrymandered legislature’s power over the state Constitution relative to that of Ohio voters — the exact opposite of what former President Theodore Roosevelt argued for when he successfully advocated adoption of the current system in 1912.
Republican leaders, including Secretary of State Frank LaRose, pushing the amendment have given inconsistent reasons for why it’s needed. But to partisan audiences they’ve conceded that one reason for putting the matter on the ballot in a low-turnout Aug. 8 election is to try to block a voter-initiated abortion-rights amendment expected to be on the ballot in November.
One, Rep. Brian Stewart, R-Ashville, also admitted to colleagues last year that he wants to make it harder for another anti-gerrymandering amendment to pass. Ohio’s current lawmakers represent districts that an earlier bipartisan Supreme Court repeatedly ruled were unconstitutional under two amendments already overwhelmingly passed by voters.
The voting-rights group One Person One Vote sought an order stopping the Aug. 8 election, noting that under a law signed by Gov. Mike DeWine on Jan. 6, almost all statewide August elections are prohibited.
The Republican majority on Friday agreed — kind of. In its opinion it said the law does not authorize, “an August special election for a statewide office, question, or issue.”
Even so, the opinion — signed by Republican Justices Sharon L. Kennedy, Pat DeWine and Joe Deters and concurred with by Justice Pat Fischer — says the legislature doesn’t have to follow that law.
“Regardless of what the Revised Code provides with respect to special elections, however, Article XVI, Section 1 of the Ohio Constitution controls the matter before us,” it said. “That provision authorizes the General Assembly to submit the issue ‘at either a special or a general election as the General Assembly may prescribe.’”
That’s ludicrous, Justice Michael Donnelly said, in essence, in one of two dissents. If the legislature wants to hold an Aug. 8 election, it needs to change the law that it so recently passed, he argued.
“But rather than changing the law, the General Assembly and respondent, Secretary of State Frank LaRose, want to be told that the Ohio Constitution allows the General Assembly to break its own laws,” Donnelly wrote. “Rather than doing the work themselves, they want this court to fix their mess and do their work for them. Sadly, a majority of this court obliges.”
Democratic Justices Melody Stewart and Jennifer Brunner joined in the dissent and Brunner wrote a separate dissent of her own.
In it, Brunner said the majority is wrong to claim that since the Ohio Constitution delegates to the legislature the power to determine the time of elections, that allows it to violate the law it passed prohibiting them in August. Laws frequently constrain constitutional rights, such as those related to speech and guns, she argued.
“Many of our statutory laws burden some constitutional right in some way, and yet they are presumed to be constitutional when enacted and are not struck down unless they are found to have impermissibly burdened a constitutional right,” she wrote.
Dennis Willard, spokesman for plaintiffs One Person One Vote said in a statement that despite Friday’s reversal, his group would continue to work to get people to polls and vote no on Aug. 8.
“Today’s ruling is disappointing, but the choice before voters remains the same no matter when we vote: Preserve majority rule in Ohio, or dismantle it,” he said. “We’re confident Ohio voters will see Issue 1 for the scam that it is: a corrupt power grab by special interests and politicians.”
