Supreme Court Directs Secretary of State to Rewrite Voters First Ballot Language
On September 12 the Ohio Supreme Court granted Voters First Ohio a writ of mandamus requiring Secretary of State Jon Husted and the Ohio Ballot Board to revise the Issue 2 ballot language. Six of seven justices ruled to grant the writ, which gives the ballot board little more than a week to finalize new language in time for absentee ballots to be printed.
In a slip opinion, the concurring justices wrote that Husted, a Republican, must correct two omissions and one inaccuracy in the Issue 2 ballot language. The existing language was approved by Husted and the ballot board on August 15, and contested to the Supreme Court by union campaign Voters First Ohio on August 23.
The Supreme Court ruled that the ballot board failed “to properly identify one of the key elements of the proposed constitutional amendment” by not including “who would be selecting the commission members.” The Voters First amendment would require that redistricting commission members be selected from a pool of volunteers by appeals court judges, which is one reason Issue 2 is opposed by the Ohio State Bar Association.
The court also ruled that the ballot board erred by excluding any mention of specific “criteria the commission will use in drawing federal and state legislative districts.”
“A key part of the proposed amendment specifies that the commission must adopt the plan that complies with all applicable federal and state constitutional provisions, federal statutory provisions, and the contiguity requirement and that most closely meets the factors of community preservation, competitiveness, representational fairness, and compactness,” the court wrote in its slip memo.
Criticizing the omission, the justices continued, “This defect is comparable to a referendum petition summarizing a resolution rezoning property as a change in the zoning on the property without specifying the precise nature of the change.”
The Supreme Court also noted that the ballot board’s language with regard to Voters First commission appropriations was even less generous than the language proposed by Protect Your Vote Ohio, the GOP campaign opposing Voters First.
“In essence, the omission in the ballots boards condensed ballot language of the qualifying limitations on commission funding is in the nature of a persuasive argument against its adoption,” the justices wrote.
The court dismissed four other Voters First contentions, which argued that Husted’s language made two additional omissions and included two additional inaccuracies.
By spelling out which Voters First complaints must be addressed and which may be disregarded, the six justices ruling to require new ballot language provided Husted and the Ohio Ballot Board a detailed description of the changes necessary for the language to be considered legally acceptable.
“The cumulative effect of these defects in the ballot language is fatal to the validity of the ballot because it fails to properly identify the substance of the amendment, which misleads voters,” the justices wrote. The granted writ of mandamus directs the ballot board “to reconvene forthwith and adopt ballot language that properly describes the proposed constitutional amendment so that it may appear on ballot for the November 6, 2012 general election.”
Justice Paul Pfeifer went so far as to write that the Ohio Supreme Court should provide new ballot language, but Chief Justice Maureen O’Connor wrote that “”To do so would violate the doctrine of separation of powers, the Ohio Constitution, and our precedent.”
In her dissent, Justice Judith Lanzinger wrote, “Although I might have written a different summary in light of the arguments made, I cannot say that these purported flaws rise to the level of misleading, deceiving, or defrauding the voters. Nor do I believe that this court should rewrite the ballot summary as one of the concurring justices suggests.”
O’Connor and concurring justices Pfeifer, Evelyn Lundberg Stratton, Terrence O’Donnell, and Robert Cupp are Republicans. Concurring justice Yvette McGee Brown is a Democrat. Dissenting justice Lanzinger is a Republican.
The previously approved Ohio Ballot Board language for Issue 2 follows.
The proposed amendment would:
1. Remove the authority of elected representatives and grant new authority to appointed officials to establish congressional and state legislative district lines.
2. Create a state funded commission of appointed officials from a limited pool of applicants to replace the aforementioned. The Commission will consist of 12 members as follows: four affiliated with the largest political party, four affiliated with the second largest political party and four not affiliated with either of the two largest political parties. Affirmative votes of 7 of 12 members are needed to select a plan.
3. Require new legislative and congressional districts be immediately established by the Commission to replace the most recent districts adopted by elected representatives, which districts shall not be challenged except by court order until the next federal decennial census and apportionment. In the event the Commission is not able to determine a plan by October 1, the Ohio Supreme Court would need to adopt a plan from all the plans submitted to the Commission.
4. Change the standards and requirements in the Constitution for drawing legislative and congressional districts.
5. Mandate the General Assembly to appropriate all funds as determined by the Commission including, but not be limited to, compensating:
- Legal counsel
- Commission members
If approved, the amendment will be effective thirty days after the election.