A lawsuit has been filed with the Ohio Supreme Court to prevent a possible constitutional amendment question from going to the statewide ballot in August. The resolution, passed by majority Republicans in the Ohio Legislature, would ask voters to make it harder to pass future constitutional amendments by requiring 60% voter approval. Experts have questioned the legality of the resolution and the state’s high court is being asked to intervene.

The group, One Person, One Vote, along with Jeniece Brock, Brent Edwards, and Christopher Tavenor filed the suit. It claims the resolution is unconstitutional, in part, because it contained two distinct legal instruments that cannot be combined. Ohio lawmakers had been considering the resolution and a stand-alone bill to set an August special election to consider it. But some lawmakers were reluctant to vote for a bill to set an August special election, especially since just months ago, they passed legislation to outlaw most special elections because they typically have low voter turnout and cost millions of dollars. Dennis Willard, spokesman for One Person, One Vote says a constitutional change of this magnitude should not be considered in a low-turnout election.

“The question every voter should be asking themselves is – why August, when there was already an election scheduled for November? The answer is simple: because that’s what special interests wanted. Special interests spent millions lobbying for an August election – which will cost taxpayers $20 million – specifically because that’s when turnout is the lowest. This is an illegal special election for special interests. Period,” Willard said.

Republican lawmakers who oppose abortion rights are worried about a constitutional amendment that will likely be on the November statewide ballot that, if passed, would enshrine abortion access and reproductive rights into the constitution.

Questionable legal territory

Lawmakers are entering questionable legal territory, however, as they set the vote in August through the resolution itself. Legislation approved last December places strict limits on such special elections, and a measure aimed at loosening those restrictions faltered in the House.

Supporters contend there’s legal precedent for setting an election through a resolution, without taking any other action. Some legal experts dismiss that argument out of hand. Organizers opposing the supermajority amendment say they’re weighing their legal options.

House Debate

Half an hour after the House session began, after the prayer and the pledge, after members voted to fill two vacancies and after Rep. Brian Stewart, R-Ashville, began his speech introducing SJR 2, the constant roar of opponents just outside the chamber was easy to hear.

Those screams and chants were still clearly audible long after lawmakers held their vote and left the chamber.

Stewart started down this path last November. That first attempt during the lame duck session eventually fell apart. A second try to get it on the May primary ballot missed the deadline. But on May 10 — the very last possible day to make the August election — Stewart got his vote.

“SJR 2 will ask Ohioans — not us — whether Ohio’s constitution should require a 60% vote threshold to adopt amendments moving forward,” Stewart argued.

He argued, as many other supporters have, that lawmakers have debated the idea for years. It’s notable, however, that Republicans found the political will to act as an abortion rights amendment became a real possibility.

Rep. Bride Rose Sweeney alluded to Republicans’ motivation in her debate against the resolution.

“(This is) a body that, at the first inkling of losing control, moves the goalposts and rewrites the rules to ensure that they remain untouchable,” she said.

See you in August?

Stewart concluded by urging his colleagues to support the resolution “once it is amended,” to allow for an August election.

Not long after, the House voted 56-42 to amend the resolution, adding language explicitly calling for an August special election. Legislative leaders point to a 1967 case in which the Ohio Supreme Court allowed lawmakers to do something similar.

“We are of the opinion that the General Assembly may authorize such special election on a certain date by a joint resolution without enacting a statute,” the court ruled at the time.

But the court based that reasoning on a lack of “conflict between any statute and the action taken” by lawmakers. A footnote cites the definition of “special election” in statute, noting it’s simply any election than those “required to be regularly held.”

That definition has changed since 1967, though.

At the end of last year, lawmakers sharply curtailed August elections. One of the changes had to do with the definition of special elections. The measure added new language allowing August elections “in accordance with” a new statute. That statute only allows August elections for municipalities in financial distress.

One of SJR 2’s sponsors, Sen. Rob McColley, R-Napoleon, argued the court ruling is so broad that those legislative changes are, in effect, a dead letter — but only for lawmakers.

“Even in the face of a statute that may say that there is no such special election that can happen for that stated purpose,” McColley argued, “the court in that case said that yes it very well could happen, and it would happen and that that statute would actually be unconstitutional as it pertained only to this resolution.”

“Legally questionable”

Nearly every Democrat who spoke against the resolution pointed to the hypocrisy of Republicans pushing to eliminate August elections last year only to change course now. Rep. Casey Weinstein, D-Hudson even read Republicans’ arguments back to them from that debate  just a few months ago.

“How stupid do you think the people of Ohio are?” House Minority Leader Allison Russo asked. “Do you think that the voters do not see through exactly the lies that you are feeding them?”

After the hearing, she called Republicans’ bid to change the election through the resolution “legally questionable.”

House Speaker Jason Stephens argued the majority is on firm legal footing, but he didn’t exactly embrace the decision to hold the vote in August. Pressed on how to justify the change of heart, he laid it at the feet of the chamber.

“That’s part of, like I said, representative democracy,” Stephens said, “it’s allowing that debate and allowing people to take a vote and now the people of Ohio have a chance to take a vote.”

The view from the rotunda

Amidst the buzz of opponents milling around in the statehouse, Scott DiMauro from the Ohio Education Association criticized the vote as a “brazen power grab.”

“We’ve already started putting the word out on this, there is a campaign that’s already solidifying,” he said. “We’ve got a lot of support, and we believe that we’re gonna have the resources to defeat this in August.”

Jen Miller from the League of Women Voters of Ohio said her organization is considering a lawsuit.

“We’re looking at our options. I can’t say much more than that,” Miller said. “Clearly, this is against Ohio Revised Code, but we’ll look at our options.”

Ohio Capital Journal | Nick Evans
5.11.2023