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Supermajority amendment opponents sue, arguing ‘no legal basis’ for August election

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Linda Wagner of Galena holds up a sign during a protest against the SJR 2 before the Ohio House session, May 10, 2023, at the Statehouse in Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal)

State lawmakers approved a measure to ask voters if Ohio should raise the threshold for approving constitutional amendments to 60%. But in an unusual move, they set the August date for that election through the resolution itself. They made no changes to state law which strictly limit such elections.

Republican House and Senate leaders insist it’s all above board. But in an illustrative statement, House Minority Leader Allison Russo said it was at best “legally questionable.”

Friday, a coalition of opponents, including the organization One Person One Vote, filed suit in the Ohio Supreme Court, arguing the special election should not go forward.

Lawmakers tried to change the law around August elections, the complaint reads, “but all those efforts failed, leaving no legal basis for submission of the Amendment to the voters in an August election.”

“This Court,” it continues, “should not countenance this cynical attempt to undermine a century-old pillar of Ohio’s democracy by means of an illegal election.”

Legal posturing

Lawmakers point to a 1967 case known as Foreman in which the Supreme Court determined the General Assembly could set an election date through a resolution without any additional enacting legislation.

The timing of Ohio elections is set in statute, but a resolution doesn’t change statutes. The court at the time reasoned there wasn’t a conflicting statute barring lawmakers’ action, so they should be allowed to go forward.

Sen. Rob McColley, R-Napoleon, offered an exceptionally broad reading of the opinion on the Senate floor. Essentially, he argued, the court determined lawmakers can set elections through resolution, and would have to throw out any law saying otherwise as unconstitutional.

Steven Steinglass, dean emeritus of the Cleveland State law school and a leading authority on the state constitution, offered a narrower interpretation. Under his reading, lawmakers can go forward only if the Supreme Court found any conflicting statutes unconstitutional.

And it just so happens there is a conflicting statute — one lawmakers approved at the end of last year. That law sharply restricts what elections can go forward in August.

McColley himself apparently saw the conflict. He co-sponsored legislation allowing general assembly amendments to appear in an August election. But that legislation never passed, and so the restrictions on August elections remain in statute.

Steinglass described resolutions and bills as “different legal instruments,” and he noted the governor, through signing or vetoing bills, has a role in the latter.

“I’m surprised that they’re trying to expand the historic purposes of joint resolutions to add what is in effect statutory language,” he said.

Complaint & response

The core argument offered by legislative leaders is that the state constitution allows them to propose amendments to the voters “at either a special or a general election as the General Assembly may prescribe.”

The lawsuit addresses that argument head on, arguing that lawmakers did just that when they approved restrictions on August election a few months ago.

“The General Assembly has prescribed a comprehensive statutory scheme governing when elections may be held, including elections on constitutional amendments it proposes,” the complaint argues.

Tying together three related sections of the Ohio Revised Code, the coalition argues lawmakers have given themselves only three options for sending amendments to voters: November elections, May primary elections, or March presidential primary elections.

The complaint also addresses the Foreman case cited by Republican leaders. The coalition argued that decision came down under a “different statutory regime.”

The argument goes on to note lawmakers have amended the relevant chapter of the Ohio Revised Code “several times since Foreman was decided.”

“In doing so, the General Assembly has made clear that the election calendar in Section 3501.02 is exclusive and exhaustive,” the complaint states.

The lawsuit names Secretary of State Frank LaRose acting in his official capacity as the defendant. LaRose spokesman Rob Nichols said, “we don’t comment on litigation.”

“But of course, we are doing our duty to make sure Ohio’s boards of elections are ready to run another secure and accessible election,” he added, “and that is what we will remain focused on.”

The attorney general typically represents state officials in such cases. In a statement, Hannah Hundley, spokesperson for AG Dave Yost, said “we are reviewing the lawsuit, and will consult with our client regarding next steps.”


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

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