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Photo by Graham Stokes for Ohio Capital Journal

MAY 10: Linda Wagner of Galena holds a sign during a protest against SJR 2 before the Ohio House of Representatives session, May 10, 2023, at the State House in Columbus, Ohio.

State lawmakers approved a measure to ask voters whether Ohio should raise the threshold for approving constitutional amendments to 60%. But in an unusual move, they set an August date for these elections through the resolution itself. They have made no changes to state law that strictly limits such elections.

Leaders of the Republican House of Representatives and the Senate insist that this is unrealistic. But in an illustrative statement, House Minority Leader Alison Russo said it was “legally dubious” at best.

On Friday, a coalition of opponents, including One Person One Vote, filed a lawsuit in the Ohio Supreme Court, arguing that a special election should not be held.

Lawmakers tried to change the law in time for the August election, the complaint says, “but all of those efforts failed, leaving no legal basis to submit the amendment to voters in the August election.”

“This court,” he continues, “should not acquiesce in this cynical attempt to undermine a century-old pillar of Ohio’s democracy through illegal elections.”

Legal position

Lawmakers note the 1967 case known as Forman in which the Supreme Court ruled that the General Assembly could fix the date of the election by ordinance without passing additional laws.

The timing of elections in Ohio is determined by statute, but the resolution does not change the statute. The court at the time held that there was no conflicting law barring the lawmakers from taking action, so they should be allowed to go forward.

Sen. Rob McCauley, R-Napoleon, proposed an exceptionally broad reading of the opinion on the Senate floor. In essence, he argued, the court ruled that lawmakers could call elections by resolution and would have to strike down any law that said otherwise as unconstitutional.

Stephen Stinglas, dean emeritus of the Cleveland State School of Law and a leading authority on the state constitution, proposed a narrower interpretation. Under its reading, lawmakers can move forward only if the Supreme Court declares any conflicting statutes unconstitutional.

And so it happened that there is a controversial statute – one was approved by the legislators at the end of last year. This law sharply limits the elections that can be held in August.

McCauley himself must have seen the conflict. He co-authors of the legislation authorization to amend the General Assembly in the August election. But that law was never passed, so the restrictions on the August election remain in the statute.

Stinglas described the resolutions and bills as “various legal instruments,” and he noted that the governor, by signing or vetoing bills, has a role in the latter.

“I’m surprised that they’re trying to expand the historic purpose of the joint resolutions to add what is effectively statutory language,” he said.

Complaint and response

The main argument legislative leaders are offering is that the state constitution allows them to propose amendments to voters “at such special or general election as the General Assembly may direct.”

Lawsuit appeals to this argumentarguing that lawmakers did just that when they approved the restrictions for the August election a few months ago.

“The General Assembly has prescribed a comprehensive statutory scheme that determines when elections may be held, including elections on constitutional amendments it proposes,” the complaint states.

Tying together three related sections of Ohio’s revised code, the coalition says lawmakers gave themselves only three options to send the amendment to voters: the November election, the May primary or the March presidential primary.

The complaint also relates to the Foreman case, which Republican leaders have cited. The coalition argued that the decision was made under a “different statutory regime”.

The argument says lawmakers have amended the relevant section of the Ohio Revised Code “several times since Forman’s decision.”

“However, the General Assembly has made clear that the election calendar in section 3501.02 is exclusive and exhaustive,” the complaint states.

The lawsuit names Secretary of State Frank LaRose, acting in his official capacity, as a defendant. LaRose spokesman Rob Nichols said “we don’t comment on legal proceedings.”

“But of course, we have a responsibility to make sure that Ohio’s election commissions are ready to hold another safe and accessible election,” he added, “and that’s what we’re going to focus on.”

The attorney general usually represents government officials in such cases. In a statement, Hannah Hundley, a spokeswoman for AG Dave Yost, said “we are reviewing the lawsuit and will consult with our client regarding next steps.”

Originally published Ohio Capital Journal. Republished here with permission.

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