You and I can’t ignore the law without consequence. Lead foots flying down the turnpike can’t sweet talk their way out of a hefty ticket (not that I haven’t tried). The rule of law permeates all aspects of our lives from driving to protecting our general safety and ensuring our rights.
We don’t always like these rules but agree to follow them to maintain an orderly and just society. Ideally, the laws intended to bind all — from private citizens to powerful government leaders — are evenly enforced. It’s a core tenet of our democracy.
The presumption is we are all entitled to protection under the rule of law and we, including our lawmakers, are accountable to it. A key demand of that principle is that people in positions of authority exercise their power in the framework of the law — not in some arbitrary, ad hoc, or purely discretionary way based on their own preferences or ideology.
If that last part sounds like what the clowns, unbound by law, in the Ohio Statehouse are doing, you’re correct. We’re witnessing, in real time, the flagrant abuse of the rule of law by state lawmakers with limitless power. With rigged political majorities in a gerrymandered legislature, Ohio Republicans control the law for their own purposes.
Under that system, the rule of law ceases to exist as a foundational bulwark against tyranny. We’re there, Ohio. The abiding norm that no one, including elected leaders, is above the law, was officially slayed by the elected leaders of Ohio who placed themselves above it.
They erased all doubt about their indifference to the Ohio Revised Code when they brazenly ignored a voting law they themselves enacted just months ago. Republican legislators banned then planned a statewide special election in August to crush voter rights when no one was looking.
Friday, the Republican-leaning state supreme court affirmed their lawbreaking as a constitutional prerogative. Dissenting Justice Michael Donnelly was incredulous. The court majority had obliged the arrogance of the Republican-dominated legislature by giving it permission to violate its own laws.
Justices Jennifer Brunner and Melody Stewart joined Donnelly in emphatically rejecting the absurd premise that the General Assembly is free to flout state law under the constitution. “This it cannot do,” they wrote. “While the legislature could have repealed the prohibition on August special elections via legislation, it attempted to do so and failed. That failure speaks volumes.”
That failure should have stopped Republicans from disregarding a statute on the books. But Ohio isn’t blessed with law-abiding leaders who adhere to the same constraints of law that apply to you and me.
A lawless political juggernaut, using state government as a personal fiefdom, is making up self-serving rules as it goes along, defying constitutional amendments it doesn’t like, and scorning state supreme court orders it won’t obey. Ohio Republicans have given themselves unconstrained authority to run the state as an authoritarian regime.
The rule of law is whatever they say it is and there is no fair or impartial application. Gerrymandered superiority in the General Assembly empowered Republicans to thumb their nose at laws and the enforcement of laws with impunity. They effectively scrubbed August special elections from the state’s calendar then scheduled one that broke the law.
Their allies on the high court gave them a pass to disobey that law. But the Republican justices owe their newfound clout on the bench, in large part, to Republican lawmakers who changed ballot protocol last year to add party affiliations to the names of state supreme court candidates for the first time — a move widely viewed as advantageous to the GOP.
In a 4-3 party line decision, the justices ruled that the Ohio Constitution trumped state law on the prohibited summertime elections. Will they be consistent on deferring to the constitution over legislative misconduct in other cases? If state government according to the state constitution is now the adjudicating bar in Ohio, redistricting reform could finally happen.
That’s not a moot issue, you know. Before the November election, the Ohio Supreme Court rejected the partisan gerrymandered district maps submitted by Republican leaders five times and ordered them to comply with the constitutional mandates approved by Ohio voters. We’re still waiting for new maps — after being forced (again) to vote in unconstitutional legislative and congressional districts in 2022.
Ohio Republican have had plenty of time to honor the overwhelming wishes of Ohioans who amended their constitution twice to get fair and competitive districts that actually represent constituents. Surely the constitutionalists on the court will not hesitate to compel their compliance with the letter of the law in the state’s governing document.
While the Republican justices are embracing the preeminence of the state constitution as the defining rule of law in Ohio, they might as well inform Ohio Senate President Matt Huffman that his billion dollar scheme to fund religious education is unconstitutional. Besides requiring the state to “secure a thorough and efficient system of common schools throughout the state,” Article VI Section 2 explicitly states that “no religious or other sect, or sects, shall ever have any exclusive right to, or control of, any part of the school funds of this state.”
Will our codified core values govern all or none? Only democracy hangs in the balance.
Marilou Johanek is a veteran Ohio print and broadcast journalist who has covered state and national politics as a longtime newspaper editorial writer and columnist.
This commentary was republished from the Ohio Capital Journal under a Creative Commons license.