The Ohio Supreme Court’s Issue 1 ballot language decision, explained

Photo via: OzarksRazorback/Public domain/Wikimedia Commons

The Ohio Supreme Court voted along party lines last Monday to uphold the Republican-controlled Ohio Ballot Board’s proposed Issue 1 ballot language. Citizens Not Politicians, the PAC behind the proposed anti-gerrymandering amendment which will appear on the ballot in November, called the ballot language “ultra-biased” and “egregiously misleading” in a press release on Sept. 17. 

Background

Citizens Not Politicians collected 731,306 signatures in favor of the initiative. The petition was submitted to the Secretary of State’s office in July and later forwarded to the Ohio Ballot Board, where the specific language set to appear on the November ballot was chosen. 

The Ballot Board consists of four appointees: one member appointed by the president of the Senate, one by the Senate minority leader, one by the speaker of the House of Representatives and one by the minority leader of the House of Representatives. The Ohio Revised Code requires that no more than two members be appointed from the same party, meaning the fifth seat, the Secretary of State, determines the Board’s partisan lean. Currently, Secretary of State Frank LaRose, along with Ohio Senator Theresa Gavarone and House appointee William N. Morgan, holds a Republican majority on the Board.

Citizens Not Politicians respond to approved ballot language

On Aug. 19, the PAC filed a lawsuit with the Ohio Supreme Court challenging the Ballot Board’s language. The complaint highlighted the disparities between the text of the proposed amendment, which promises to “ban partisan gerrymandering and prohibit the use of redistricting plans that favor one political party and disfavor others,” and the adopted ballot language, which asserts it will “establish a new taxpayer-funded commission of appointees required to gerrymander the boundaries of state legislative and congressional districts to favor either of the two largest political parties in the state of Ohio.”

The complaint attacked the Ballot Board’s approved language as an act of sabotage, arguing that “politicians do not wish to give up power, they oppose the Amendment, and they’re using control of the Ballot Board to try to influence voters with ballot language so farcical, biased, and deceptive that it approaches comedy.”

The Ohio Supreme Court issues its ruling

The court’s four conservative justices filed a per curiam majority decision—meaning no single justice was named as the author—which found in favor of the controversial ballot language. Justices Sharon Kennedy, Patrick Fischer, Patrick DeWine and Joseph Deters joined the opinion. 

Invalid ballot language, according to Article XVI, section 1 of the Ohio Constitution, is determined by whether or not the ballot language’s effect is to “mislead, deceive, or defraud voters,” the opinion notes. 

The court applied its own standard to answer this question: valid ballot language is that which tells voters what they are asked to vote on and does not  “amount to a persuasive argument for or against the issue.” In addition, ballot language that meets this standard must be factually accurate.

Following these questions, the court argued that because the language is not factually inaccurate, the language is “not defective.” In one example, the opinion discusses section 1 of the proposed ballot language, which describes Issue 1 as “repeal[ing] constitutional protections against gerrymandering.” 

The court found that although the proposed ballot language fails to “say so expressly,” the proposed Issue 1 amendment does include repealing Articles XI and XIX of the Ohio Constitution, which lay out the state’s current redistricting process — therefore the language meets the “factually accurate” standard. 

In addition, the majority argued that because the amendment seeks to draw districts with the intent of achieving a specific outcome (representation in state and U.S. legislatures that equals the statewide margin), the ballot language does not mischaracterize the amendment as “requiring gerrymandering.”

Liberal justices dissent

In the first part dissent, part concurrence joined by Justice Melody Stewart, Justice Michael Donnelly explains that the majority focuses on “particular bits of language—view in isolation,” and “proves” them factually accurate by taking them out of context. 

The second part dissent, part concurrence, authored by Justice Jennifer Brunner and joined by the other two Democrats, slams the majority opinion as an “abject failure to perform an honest constitutional check on the Ballot Board’s work” and accuses the Ballot Board of “playing politics with the fundamental right of Ohioans to self-govern.” 

Donnelly’s dissent rejects the “factually accurate” test, referring back to the majority’s other standard — that ballot language cannot amount to a “persuasive argument” for or against the issue. “Whether ballot language could be interpreted as factually accurate does not tell us whether the language is a persuasive argument,” Donelly explains. In addition, the majority fails to address “the relationship between what is ‘said’ and what is ‘left unsaid’ in each paragraph of the ballot language — individually and collectively.” 

Donnelly finishes the separate opinion by drawing a comparison with Berkheimer v. REKM, LLC, the decision which found this summer that a restaurant could not be held liable for an injury suffered by a customer whose “boneless” chicken wings contained bones. 

“Given that the four members of this court in the majority today apparently think that the word ‘boneless’ means ‘you should expect bones,’ I’m sure it comes as no great surprise that they think that a constitutional amendment to ‘ban partisan gerrymandering’ means to ‘require gerrymandering.’ While the majority’s Amelia Bedelia approach to the law and the absurdity of the majority’s conclusions might make you laugh, it should also make you outraged.” 

It is unclear what bearing, if any, the approved ballot language will have on public opinion as voters prepare to make their decisions on Issue 1. Last year, Ohioans for Reproductive Rights filed a similar complaint against ballot language approved for the Reproductive Freedom Amendment, which chairperson Lauren Blauvelt criticized as “politicized” and “distorted.” The amendment ultimately passed with 56.6% of the statewide vote.