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The Ohio Supreme Court has a complicated history deciding on Ballot Board cases




Hundreds of protesters against SJR 2 fill the rotunda before the Ohio House session, May 10, 2023, at the Statehouse in Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal)

Last week the Ohio Supreme Court sided with the Ohio Ballot Board decision to allow an abortion rights amendment to go forward as a single question. Opponents of the effort wanted the court to split it in two, but instead the justices deferred to the Ballot Board.

That’s not always the case.

Going back to 2010, the court has ruled on Ballot Board challenges six times. More often than not, the Board has wound up on the losing end. That track record throws an interesting light on another Ballot Board challenge.

The court is currently considering a challenge, from the group One Person One Vote, opposing the ballot language for a measure making it harder to amend the state constitution.

Precedent and track record

As the final arbiter of what laws say, the courts hold an enormous amount of power. But without the means of enforcing their decisions, they’re generally cautious in how they express it. One form that caution takes is a kind of deference to other branches or executive agencies. Wary of “legislating from the bench,” courts often give the government’s interpretation the benefit of the doubt.

But when it comes to Ohio Ballot Board cases, the Ohio Supreme Court’s deference has instead favored the amendment’s author. In 2010, 2012, 2015, and 2020 the court has sided with organizations that disputed the Board’s interpretation of their proposal.

Over that stretch, the Ballot Board’s only wins were last week’s case about a reproductive rights amendment, and a case dismissal in 2012. One thing those two cases have in common? The court challenge came not from the amendment’s author, but from an outside group opposing the effort.

Among other duties, state law charges the Ballot Board with drafting the language voters will see when they vote on an amendment. The state constitution holds that the supreme court can invalidate ballot language only if it would “mislead, deceive, or defraud” voters.

How many questions and what about ballot language?

As with the recent reproductive right amendment, in 2010 and 2020, the court considered whether to split a proposal into multiple questions. In the former, then-Secretary of State and current Supreme Court Justice Jennifer Brunner tried to split a health care freedom measure in two. In the latter, Secretary of State Frank LaRose attempted to break an automatic voter registration effort in four.

The court rejected both those Ballot Board efforts, instead siding with amendment organizers who wanted to present their initiative as a single question.

The court’s ruling in the recent reproductive rights amendment is instructive. Going back to that 2010 case, the majority notes their test, “does not ask whether individual provisions of a proposed amendment relate to one another; rather, the inquiry is whether an amendment’s provisions relate to a single general purpose.”

In 2012 and 2015, the Ballot Board lost challenges related to its ballot language. In 2012, then-secretary of state Jon Husted’s board had to revise its description of a redistricting amendment. The court determined the language suffered from “material omissions” and “factual inaccuracy.”

The justices sent Husted back to the drawing board again in 2015 over the ballot language for a marijuana legalization amendment. The court found the explanation “misleading” because it repeatedly understated the extent of marijuana regulation and licensing. Again, they cited instances omission and inaccuracy. The court did let him keep his ballot title, though.

The outlook for One Person One Vote

One the one hand, the case against the Ballot Board’s language for a proposed supermajority amendment has precedent.

The general assembly-initiated amendment would make passing any future constitutional amendment more difficult in three ways. The most straightforward change is raising the threshold for passage from a simple majority to 60%. But before making the ballot, it also eliminates the chance to provide additional signatures if the first submission falls short, and requires signatures pass a given threshold in all 88 counties instead of 44.

The group One Person One Vote objects to the board describing the amendment’s result without any mention of the status quo. How can voters properly understand the question, they argue, if they don’t see how their vote changes policy? The group also notes, correctly, that the Ballot Board’s description of county signature requirements is inaccurate.

Recall in 2012 and 2015 the Supreme Court rejected Board language on similar grounds.

In a court filing, Attorney General Dave Yost argued leaving out the status quo is “irrelevant” and “nothing new.” As for the inaccurate description of signature requirements, Yost acknowledged a “technical difference,” between the text and actual requirements, but brushed it off just as quickly.

“Any defect with the Ballot Language related to the change in the number of signatures required for an initiative petition is not material and does not affect the overall fairness of the text,” he wrote. “At bottom, the cumulative effect of this one, non-material defect, is harmless.”

On the other hand, there are two pretty glaring strikes against One Person One Vote. First, they’re not the amendment’s author. In both last week’s reproductive rights amendment and the 2012 Personhood Ohio amendment, outside challengers proved unsuccessful. Those two instances, in fact, are the only times since 2010 where the Ballot Board prevailed.

Second, every Ballot Board case over that stretch dealt with a citizen-initiated amendment. Not only is the amendment’s author a co-equal branch of government, a General Assembly-initiated amendment laid the groundwork for most of the Ballot Board’s recent losses.

In 2005, lawmakers sent a Third Frontier bond issue to voters, and the case Wilkie v. Taft challenged placing it on the ballot as a single question. But the Court showed deference to lawmakers, determining the broad array of Third Frontier projects fit within a “single general purpose.”

Given that past decision and the court’s recent deference to the Ballot Board, One Person One Vote could face a high bar.

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

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