Constitutional amendments and initiated statutes: one question or two?

During the most recent hearing for SJR 2 — the Ohio Senate resolution to establish a 60% supermajority for constitutional amendments — Sen. Rob McColley, R-Napoleon, made an interesting assertion.

“I personally — not speaking on behalf of any other senator or the caucus — am not opposed to a conversation to make the statutory initiative route much better and more efficient than what it is right now,” McColley said.

In Ohio, citizens have two options for proposing changes through a ballot initiative. They can offer a statute or a constitutional amendment. Generally speaking, organizers prefer amendments, because Ohio law offers no protection for a newly passed statute. Lawmakers can immediately repeal or modify whatever changes voters approve.

A proposal from the Ohio Constitution Modernization Commission, or OCMC, recommended a 55% supermajority for amendments paired with changes to make the statutory process easier and limit interference from lawmakers.

The commission never adopted the proposal. But since Republican lawmakers introduced their supermajority idea late last year, they’ve continually invoked the former, while studiously ignoring the latter.

But even if McColley acknowledges the statutory process could use an update, there’s still one nagging problem.

“The reason it’s not included in this,” McColley argued, “is in large part because it’s a second question, and you can only put one question to the Constitution to the voters at a time.”

But is that correct?

What state law says

When it comes to a citizen-initiated statute or an amendment, the Ohio Revised Code is unequivocal.

“Only one proposal of law or constitutional amendment to be proposed by initiative petition,” Section 3519.01 reads, “shall be contained in an initiative petition to enable the voters to vote on that proposal separately.”

Meanwhile in Section 3505.062, state law gives the Ohio Ballot Board the duty of determining whether a petition contains only one question.

The language gets a tad murky, however, when it comes to amendments offered by the General Assembly. Unlike citizen petitions, nothing in statute directs the board to make a judgement on whether lawmakers are proposing only one question.

Article XVI

The state constitution lays out the procedure by which lawmakers can propose amendment through a joint resolution. Article XVI, Section 1 talks about lawmakers needing three-fifths of members, and the timeline for passage or challenges, but doesn’t include an explicit single question requirement.

The ballot board is responsible for “prescribing” the ballot language, but the constitution seems to envision a light touch. The language only needs to “properly identify the substance of the proposal.”

“The ballot need not contain the full text nor a condensed text of the proposal,” the constitution states.

The closest the constitution gets to weighing in on multiple questions is the final line of section 1.

“When more than one amendment shall be submitted at the same time,” it states, “they shall be so submitted as to enable the electors to vote on each amendment, separately.”

The courts have interpreted this passage as a way to prevent a kind of logrolling — presenting multiple unrelated issues at once to cobble together a majority coalition. But the justices have also acknowledged it’s more diffuse than the single subject rule for bills. Instead, they’ve determined it requires changes share a “general object or purpose.”

A regularly cited case from 1967 notes the drafters imposed the single subject rule for bills at the same time they crafted Article XVI.

“It is quite obvious therefore” the opinion states, that if the drafters “intended that each amendment to the Constitution proposed by the General Assembly be confined to one subject, object or purpose, they would have so provided.”

“They did not,” it concludes.

The OCMC proposal

Perhaps the most instructive comparison to consider is the OCMC proposal itself. Steven Steinglass, dean emeritus for Cleveland State’s law school, served as the commission’s senior policy advisor. More recently Steinglass has argued against the proposals to impose a supermajority for amendments.

In June of 2017 the measure simplifying the initiated statute process and raising the threshold for constitutional amendments came before the full panel.

As Steinglass recalls, it was a bit of a disaster.

“It was people from the right, people from the left, it was like the third rail of politics,” he explained. “It was absolutely clear that the committee had miscalculated, and there was huge opposition to any effort to take away people’s right to have a majority vote govern amendments to the Constitution.”

The commission wound up tabling the issue, Steinglass explained. But in the minutes from the meeting, it’s clear the committee wanted to propose the changes as a single amendment. “The subject would be ‘reforming the initiative process,’” the minutes state.

Last month in the Senate committee considering SJR 2, former state Rep. Jonathan Dever testified to the linkage. Dever served as co-chair of the OCMC.

“There was a consensus, at least at the time, that both things should be considered in tandem,” he explained.

Devers insisted he wasn’t there to weigh in on the existing proposal, which raises the constitutional threshold without making any changes to the statutory process. But he encouraged members to review the OCMC proposal and take it “under advisement.”

As for whether presenting the changes as a single question would fly now, Steinglass is ambivalent.

“I would say that it isn’t absolutely clear which way it would go,” he said. “I think it’s, it’s debatable.”

Court precedent

As Steinglass described it, the ballot board might recommend splitting the proposal — likely setting up a showdown with the general assembly. Another possibility is outside organizations might contest the language. Any such challenges would play out in the state supreme court.

Court fights over the whether a ballot measure represents one or multiple questions aren’t uncommon. Right now, anti-abortion activists are challenging a reproductive rights amendment on the pretext that it shouldn’t be presented as a single question.

In past cases, though, the court has typically taken an expansive view, generous to those advancing an initiative.

The underlying test, comes from a 1972 case called Roahrig. That case determined, “a proposal consists of one amendment to the Constitution only so long as each of its subjects bears some reasonable relationship to a single general object or purpose.”

In 2020, Secretary of State Frank LaRose’s ballot board determined an elections initiative constituted four different proposals. The Supreme Court batted that down, with then-Chief Justice Maureen O’Connor writing the board’s argument treats voting and registration “as unrelated topics.”

“Registering to vote and casting a ballot are both plainly related to the overarching concept of ‘voting,’” she insisted.

In 2010, then-Secretary Jennifer Brunner tried to split an initiative that would ensure Ohioans’ freedom to choose their health care coverage. That ballot measure was one of a flurry activists filed in response the Affordable Care Act. The court again dismissed the ballot board’s narrow interpretation.

“We hold that the proposal consists of one amendment because all the sections contained therein bear some reasonable relationship to the single general purpose of preserving Ohioans’ freedom to choose their health care and health-care coverage as it existed on March 19, 2010,” the majority wrote.

Both of these cases look back to a 2005 challenge of a state bond issue to suss out just how far “general purpose” extends. That case, Wilkie v. Taft had to do with borrowing to fund infrastructure, business site development, and research through then-Gov. Bob Taft’s Third Frontier program.

The court allowed that, “although the issuance of state bonds for the public-works, Third Frontier, and business-facilities projects may represent different components, they are all reasonably related to the single general purpose of job creation or economic development in Ohio.”

Where the rubber meets the road

Former state Rep. Mike Curtin has forcefully opposed the current supermajority proposals. He also served on the OCMC. Like Steinglass, he doesn’t have a definitive answer for whether an easier statutory initiative and heightened amendment threshold would make it to the ballot as a single question.

“But they’re clearly tied together,” he argued. “There’s really one policy that’s being pursued. It’s a left-hand right-hand thing.”

“The committee never, ever would have advanced the 55% recommendation without the other half of the loaf,” he said. “It would not have been good faith to do that. We were trying to solve two problems that were totally linked.”

After the SJR 2 committee hearing, McColley argued his insistence on keeping constitutional and statutory changes separate comes from internal legal advice.

“The way it’s been explained to me by our lawyers,” he explained, “is that it could — could — because you know, legal conclusions aren’t always black and white, but could well be multiple, determined to be multiple questions and subject this to legal challenges.”

Like Curtin, Catherine Turcer from Common Cause Ohio argued there’s an obvious connection between the two prongs of the OCMC proposal. “They’re all tied together,” Turcer said, and she dismissed McColley’s parsing of the issue as disingenuous.

“One of the things that I always find really challenging is when legislators act like their hands are tied,” she said. “Really, his hands are not tied. If he firmly believes that they need to be two separate resolutions, well, he can create two separate resolutions.”

Turcer, Curtin, and Steinglass agree, that even if lawmaker could present the changes to voters as one package, they won’t.

Despite the sponsors’ repeated attempts to distinguish their effort from opposition to an upcoming reproductive rights amendment, their own statements have undermined their position.

Last year, Rep. Brian Stewart, R-Ashville, circulated a memo urging his caucus to support the effort as a way to fight future abortion or redistricting amendments.

Last month Senate President Matt Huffman made the connection explicit, arguing “if we save 30,000 lives…I think that’s a great thing.”

Last week after losing his chairmanship, Rep. Scott Wiggam, R-Wayne County, sent a letter to the House Speaker, indicating Republicans want the supermajority on the ballot — and on the ballot before the abortion rights amendment.

Otherwise, he wrote, both amendments might pass. That would mean voters enshrine abortion in the Constitution and also protect it with the supermajority meant to handicap it. “It is well known that this scenario is not acceptable to the Republican Caucus,” Wiggam wrote.

“Everyone knows why this is coming up now,” Steinglass explained. “The fiction, that this is a good government proposal is a fig leaf that got ripped off by Representative Stewart. Huffman makes no secret.”

“It’s not about good government,” he added. “It’s about an anti-choice position on abortion.”

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This story was republished from the Ohio Capital Journal under a Creative Commons license.