COLUMBUS, Ohio — The Ohio Supreme Court handed a limited victory to opponents of State Issue 1 on Monday by ordering Republican state officials to rewrite ballot language summarizing the measure’s effects.
The decision, issued by the four Republicans who hold a majority on the seven-member court, orders the Ohio Ballot Board to fix errors in the ballot language, including one that incorrectly described a new minimum number of voter signatures that amendment campaigns must collect from each Ohio county to qualify for the ballot.
The court, however, declined to take a more expansive role in ordering the language to be rewritten, rejecting some of the core arguments from the group whose lawsuit prompted the court’s Monday decision.
In response to Monday’s ruling, Secretary of State Frank LaRose, a Republican who chairs the Ohio Ballot Board, scheduled a meeting for 1:30 p.m. on Tuesday to approve new language.
State Issue 1, if voters approve it, would amend the state constitution to require future amendments to get a 60% supermajority in a statewide vote in a future in order to pass. That’s compared to the current 50% simple majority standard that’s been in place for more than a century.
It also would make it significantly harder for potential ballot issues to qualify by expanding mandatory signature-gathering requirements for amendment campaigns. It would require campaigns to collect a minimum number of signatures from all 88 counties to qualify for the ballot, compared to the current 44 counties.
Read more: Coverage of State Issue 1
State officials have debated making it harder to amend the state constitution for years. But Republicans fast-tracked State Issue 1 specifically to try to foil an expected November ballot measure that would add legal protections for abortion to the state constitution.
Republican lawmakers voted last month to put State Issue 1 up for a vote, setting an Aug. 8 election. Part of the process of putting a constitutional amendment up for a vote is writing ballot language describing the measure’s effects. While the language carries no legal weight per se, standards for the language appear in the Ohio Constitution, which says it must “properly identify the substance of the proposal to be voted upon.”
In response to the ballot language’s approval, the campaign group opposing State Issue 1, One Person One Vote, filed a lawsuit on May 23. The group asked asked the Ohio Supreme Court to order that the language be rewritten, saying Republicans on the Ohio Ballot Board illegally stacked the deck in favor of the measure’s passage by failing to convey to voters that the new requirements are a harder than the existing ones, and by using biased language throughout the summary, including in its title.
Specifically, the group took issue with a phrase in the title that described the measure as “elevating the standards” for amending the state constitution.
The language summarizing what State Issue 1 as it will appear on the ballot.
The group said “elevating” carried a positive connotation, and suggested other words that could be used, like “raising” the standards.
But the majority opinion from Republican Chief Justice Sharon Kennedy and GOP Justices Joe Deters, Pat DeWine and Pat Fischer, dismissed the arguments.
“Distinguishing between them requires parsing minute differences in connotation,” the opinion reads. “But such wordsmithing should be left to Secretary LaRose because it is not for this court to choose between words of the same meaning.”
The justice wrote there was no precedent in which the court had said the legal status quo must be included as part of ballot summary language.
Correcting errors
Where One Person One Vote saw success though was convincing the Republican majority that the ballot language contained factual errors that needed to be fixed. State officials conceded as much in a legal filing earlier this month.
There were two errors the majority identified.
The State Issue 1 ballot language incorrectly described the minimum number of signatures amendment campaigns would need to collect from each of Ohio’s 88 counties. The summary described the number as equal to 5% of eligible voters from each county. But the amendment language actually says the number is 5% of the number of votes cast in each county during the most recent election for governor.
“Because not all electors vote in a gubernatorial election, the ballot language here overstates the number of signatures that would be needed to qualify an initiative petition for the ballot,” the majority opinion reads.
So, the court ordered the ballot board to write new language that correctly describes the county-by-county signature-gathering requirements.
The majority opinion also orders the ballot board to remove the word “any” from the ballot language’s title. That’s because the signature collection requirements don’t apply to “any” constitutional amendment. They apply only to those proposed by the public. Amendments also can be proposed by the Ohio legislature, with a 60% vote from each the House and Senate, or through a constitutional convention.
Revisionist history: Republicans want to make it harder to amend Ohio’s constitution. What law changes would their idea have blocked?
The new language can’t include the word “any” in the title, the Monday court ruling says.
One Person One Vote issued a statement Monday praising the court’s decision.
“The language politicians and special interests wanted on our ballots for Issue 1 was full of lies,” said a spokesperson for the group, Dennis Willard. “We’re glad the Ohio Supreme Court saw through the deception and ordered the changes.”
LaRose’s goal in writing the language summarizing State Issue 1 was to make it as “clear and concise as possible,” according to Rob Nichols, his spokesperson.
“The court has ordered us to put a more complex explanation on the ballot, which we know can often lead to voter confusion, but we’ll follow the court’s directive,” Nichols said.
Democrats in dissent
The court’s three Democratic justices, Jennifer Brunner, Michael Donnelly and Melody Stewart, dissented from the Republican majority on Monday.
Donnelly wrote one opinion. He said that he agreed with everything in the majority opinion, but said that “elevating” shouldn’t appear on the ballot.
“‘Elevating’ is plainly prejudicial and should not be part of the title,” Donnelly wrote.
In a separate opinion, Brunner said she would have required the ballot language to clearly describe the difference between the new standards for citizen-initiated amendments and those initiated by the legislature.
“The incongruous impact of these changes is clear: [State Issue 1] would make it onerously oppressive for citizens to amend the Ohio Constitution through the initiative process, but it would leave unaffected the General Assembly’s ability to propose amendments that serve its interests at elections established to fulfill its own desires,” Brunner wrote. “This is a fundamental shift in the balance of power between the people of this state and their legislative representatives.”
Need to Know: How to register, where to vote, when the polls are open
The court has yet to rule on a second State Issue 1-related lawsuit from One Person One Vote.
That lawsuit, filed on May 12, contends that Republican state lawmakers illegally scheduled the Aug. 8 election by failing to properly undo a previous law change in which they generally outlawed August elections in Ohio.
The court’s order on Monday doesn’t state a date by which the Ohio Ballot Board must issue new language. But a key deadline is coming up for the Aug. 8 election. The state must send out mail ballots to military members and other overseas Ohio voters by Friday, June 23. Early voting begins for all Ohio voters on July 11.
Andrew Tobias covers state politics and government for cleveland.com and The Plain Dealer