August special election can continue, Ohio Supreme Court rules

Watch above for a May 10 report on the Ohio House approving the Aug. 8 special election

COLUMBUS, Ohio (WCMH) — An August election to ask voters whether to make it harder to amend the state constitution can proceed as planned, the Ohio Supreme Court ruled on Friday.

In a 4-3 ruling split down party lines, the Republican majority court rejected the One Person One Vote coalition’s request that it strike down the Aug. 8 special election on the grounds that it was unlawfully approved by state lawmakers, who passed a law in December to nix most of the late-summer voting.

If passed, the measure — which will appear as Issue 1 on the ballot — would require Ohioans to reach a 60% majority, rather than 50% plus one vote, to enact a constitutional amendment. It would also require signatures from all 88 counties in Ohio, rather than 44 as needed currently, to place the initiative on ballots.

Dennis Willard, a spokesperson for the One Person One Vote coalition, said he’s disappointed in the court’s ruling but is “full-speed ahead” in their campaign against Issue 1. The state legislature — who the coalition said illegally shoved the August election into a joint resolution — failed to amend the law through its lawful path: by way of statute, Willard said.

“They have the power to do that, they just lacked the will,” he said.

A spokesperson for Secretary of State Frank LaRose declined to comment, saying his office will let the ruling speak for itself.

How Ohio’s August election, and lawsuit that followed, came to be

To stave off a November ballot initiative enshrining abortion rights into the state constitution, the General Assembly initially adopted a two-pronged proposal: First, it would allow for an August special election by way of Senate Bill 92; and second, it would approve Senate Joint Resolution 2 that would – if approved by voters at the ballot box – require 60% of voter support to amend the Ohio Constitution as opposed to a simple majority.

But after some House Republicans expressed concern about administering an August special election months after the Legislature voted to abolish most of them due to cost and low turnout of 8%, the House voted to fast-track its plans in May by folding SB 92’s election allocation into SJR 2.

The Senate concurred on the vote, and within hours Secretary of State Frank LaRose signed off, ordering election workers to begin preparing for an Aug. 8 vote.

In its lawsuit in mid-May, the One Person One Vote campaign argued that the Legislature’s December adoption of a new election law – House Bill 458 – only permits the state to hold a special election on a constitutional amendment in the months of November, March or May.

HB 458 contends that special elections held in August can only be administered by localities undergoing a fiscal emergency, the campaign wrote, asking the Ohio Supreme Court to scrap the statewide August special election entirely.

“This Court should not countenance this cynical attempt to undermine a century-old pillar of Ohio’s democracy by means of an illegal election,” the coalition wrote in its complaint.

One Person One Vote also argued that state lawmakers do not have the power to change the provisions of HB 458 and when an August special election is held by way of a joint resolution; such action must only be taken by way of statute — such as tweaking the enacted HB 458 or adopt an entirely new bill.

“That’s 123 years ago, and I view this as a bedrock principle of Ohio constitutional law,” said Steven Steinglass, a retired dean and law professor at Cleveland State University’s College of Law. “Two different instruments, two different processes — you can’t combine them.”

But shortly after signing the resolution to greenlight the August election, LaRose defended his decision by saying that Ohio voters should have the right to choose.

“A supermajority of our legislature has decided to ask Ohio voters an important question about protecting our state constitution — like most other states do,” LaRose wrote. “That’s how democracy works.”

What does the court say?

The court’s Republican majority — Chief Justice Sharon Kennedy and Justices R. Patrick DeWine, Patrick Fischer and Joe Deters — rejected the coalition’s arguments, the crux of which pointed to alleged violations of the Ohio Revised Code. Regardless of what state statute says, it’s the Ohio Constitution that controls the matter at hand, the court ruled.

“There is no similar specification in the Constitution about exactly when special elections may take place,” the court wrote. “Therefore, the General Assembly is acting within constitutional boundaries when it prescribes that a special election take place on a certain date.”

It also ruled against the coalition’s claims that LaRose lacks the power to conduct an Aug. 8 special election.

In two dissenting opinions — both of which were joined by Democratic Justices Michael Donnelly, Melody Stewart and Jennifer Brunner — the court’s minority argued that the General Assembly illegally “skipped steps” to authorize the Aug. 8 election. The Ohio Constitution does not give state lawmakers the authority to violate the rules, in this case HB 458, that it made for itself.

By siding with the state, Justice Donnelly said the court’s majority “concludes that the General Assembly can violate its own laws through a joint resolution and create ad hoc election dates whenever it has a constitutional amendment burning a hold in its pocket.”

“The General Assembly is attempting to inspire a historically unprecedented impediment to the ability of Ohio citizens to amend their Constitution,” Donnelly wrote. “To add insult to injury, the General Assembly seeks to do so in August through a historically unprecedented expansion of one of the very same constitutional provisions that it wants to eviscerate.”