Columnist Mary Jane Borden explains Issue 1, Ohio’s “legally questionable” proposed special August election, then dives into a history of ballot issues in the Buckeye state (including a pending adult use cannabis reform measure) and lays out what citizens need to do to have their voices heard:
“Power Corrupts. Absolute Power Corrupts Absolutely” ~ Lord Acton
May has been a month of milestones. There’s Mother’s Day and, sadly, the fifty-third anniversary of the Kent State massacre. But May 2013 – ten years ago – was filled with excitement, significance, and promise. The Ohio Rights Group (ORG) submitted its initial 1,000 signatures for the Ohio Cannabis Rights Amendment (OCRA) to Ohio Attorney General (OAG) Mike DeWine’s office on May 7th. The OAG certified the summary as a fair and truthful statement on May 17th, and the Ballot Board affirmed the single issue rule on May 23rd. Here’s photo of ORG members celebrating on the Statehouse steps.
That day, the signature drive began, and it felt like a rocket ship. During 2013-14, the ORG’s 88-county, all volunteer army collected around 150,000 signatures, far short of the ~385,000 required.
The promise of May led to a long, demanding, heartrending, and circuitous journey, making two lessons abundantly clear: #1. It takes a ~$20 million budget to run a ballot initiative (pay circulators, lawyers, tabulators, etc.), and #2. If the measure is successful, the state will try to obstruct it. The saddest part is that history seems to be repeating itself.
Both Houses Passed Joint Resolutions
With a looming 90-day statutory deadline of May 10, 2023, both houses of the General Assembly on that very day passed more or less identical “joint resolutions” to “Require 60% vote to approve any constitutional amendment.” The House joint resolution is termed “H.J.R. No. 1” and the Senate joint resolution is called “S.J.R. No. 2” (or HJR1 and SJR2 for short). This General Assembly Initiated Constitutional Amendment quotes Article II of the Ohio Constitution (page 6) and can be found here. The underlined sections mark the changes. The resolution increases the passing percentage for constitutional amendments from a simple majority of 50%+1 to 60%. It also eliminates the 10-day “cure period” to collect extra signatures and mandates 5% percent of signatures from all 88 Ohio counties at great cost to any campaign.
Legislators utilized lofty logic to justify their “largess.” Consider the testimony of Rep. Brian Stewart, sponsor of HJR1, in which he panned the current constitution’s initiative process as: susceptible outside groups and special interests; used to legalize drugs, particularly marijuana; letting violent criminals out of prison; much simpler than the U.S Constitution; bloated with excessive words from prior amendments; vulnerable to “dark money”; the subject of constitutional modernization anyway; and geez, sheer luck to have such a process to begin with. And here’s a good one: the new, improved, rewritten rules will apply to all Ohioans! Sounds like a plan, right?
Efforts to Block Reproductive Rights
The hard truth lies in the fact that foregoing testimony for HJR1 amounts to little more than bunk, junk, smoke, and mirrors. The real reason is abortion. On July 24, 2022, the U.S. Supreme Court issued the Dobbs v. Jackson Women’s Health Organization decision that by a 5-4 majority dismantled Roe v. Wade and the 50-years of protections it offered to Ohio’s 5,919,391 women. Since Dobbs, 24 states have prohibited the procedure, including Ohio whose six-week ban is currently tied up in court. Such tight restrictions found a 10-year old rape victim escaping to Indiana for a procedure banned in Ohio (no thanks to OAG Yost); highly trained obstetricians losing their licenses and charged with felonies; and women facing death due to a lack of treatment for problematic pregnancies; among many others. In fact, research has found that maternal death rates would increase 24% with a universal abortion ban. [Note: pending the outcome of the lawsuit, abortion is still legal in Ohio up to 21 weeks.]
Against this backdrop, a Baldwin Wallace University Ohio Pulse Poll conducted last November found that 63.4% of women and 54.7% of men for a total of 59.1% favor making abortion a fundamental right in the state.
To protect reproductive freedom, activists are fielding the “The Right to Reproductive Freedom with Protections for Health and Safety” proposed constitutional amendment, a short and sweet measure of only 246 words, that the Ohio Attorney General and Ballot Board certified on the first pass in March. The campaign must collect 413,488 signatures of registered Ohio voters by July 5th for placement on the fall 2023 ballot. If you’re interested in collecting signatures, click here. [Editor’s Note: This author signed a petition on 5/26/23.]
Proposed Special August Election
But this story has an added twist that confirms the legislature’s true intent. One would think that major changes to the vaunted constitution would be placed on the ballot for the November general election this fall. Sure, if Rep. Stewart’s “largess” was the driving force. But tellingly, S.B. 92 (conjoined with SJR2 and similar to H.B. 144) will “allow a special election to be held in August for certain purposes … and to make an appropriation.” What “certain purposes” and what “appropriation? The unstated answer is to halt – or at least make more difficult – the passage of the reproductive rights amendment. Not only that, the “appropriation” allocates a whopping $20 million to stage this vote, even though another election is just four months away. And, just six months ago, the GA placed strict limits on special elections because, in Secretary of State Frank LaRose’s words, they “aren’t good for taxpayers, election officials, voters or the civic health of our state.” Rep. Stewart, an ardent anti-abortionist, piped in, “I’ve wanted to eliminate August elections for my entire time as a public official.” Yeah, right. In 2023, honesty be damned. This rushed “legally questionable” move to hold an August special election faltered in the House; the Senate simple solution: just add the date to the resolution. A lawsuit challenging this mess has been filed with the Ohio Supreme Court. And if this wasn’t enough, out-of-state dark money has formed a PAC to support the GA’s power grab with a $1 million contribution from the ultraconservative Illinois billionaire, Richard Uihlein. Hypocrisy abounds.
SJR2 Subject to Litigation
If SJR2 appears on the ballot (which as of this writing is subject to litigation), it will be called Issue 1. Per Ohio Secretary LaRose:
Here is the Certified Ballot Language for Issue 1.
Here is the Certified Argument for.
Here is the Certified Argument against.
If this narrative doesn’t upset your stomach and convince you to JUST SAY NO! to ISSUE 1, then read on to learn more about the process and its problems.
REASONS to JUST SAY NO! to ISSUE 1
- When the Ohio General Assembly fails to address popular issues, as it often does, citizens need a manageable way of crafting legislation on their own, which is what the citizen-initiated process does.
- Amending the Ohio Constitution should be a thoughtful deliberative process, not one put together at the very last minute to advance a narrow and unpopular cause.
- The General Assembly Initiated Constitutional Amendment called Issue 1 would rewrite the rules for citizen-Initiated constitutional amendments that have been used successfully for over 100 years.
- The same corrupt political machines, extreme concentration of wealth, and power of big business, which led progressives in 1912 to push for citizen-led initiatives, appear to be behind today’s major constitutional revision.
- Let’s be honest. Issue 1 is about obstructing “The Right to Reproductive Freedom with Protections for Health and Safety” citizen-led constitutional amendment. If courts uphold Ohio’s six-week abortion ban and this amendment fails, maternal death rates could rise 24%.
- The proposed 60% supermajority for passing constitutional amendments places too much burden on citizen activists, disenfranchises majority rule, and ensures only wealthy political machines and big businesses will utilize the process.
- The citizen-led initiative procedures are challenging, time consuming, expensive, and risky as is. It costs millions of dollars to place a measure on the ballot, only to risk losing it all, if rejected by voters.
- Requiring 5% signatures from all counties multiplies by magnitude the already expensive signature collection process. Analysis shows that this change can add as much as 200,000 signatures and $1 million in cost to the campaign.
- Verifying hundreds of thousands of signatures can be time consuming, tedious, and error prone. Signatures will often be rejected for disputable irregularities. The “cure period” offers an element of fairness to this subjective activity.
- Changing long established benchmarks for constitutional amendments disrupts the uniformity of the direct democracy procedures. What was once mostly the same becomes decidedly different for amendments vs. initiated statutes and referenda.
- The Ohio General Assembly should not be rewarded for the antics they used to pass the constitutional amendment revision under possibly illegal and certainly unethical circumstances.
- Ohio needs to solve its governmental trifecta problem that monopolizes thought with absolute power, which as the saying goes, corrupts absolutely.
A PDF of these eleven reasons can be found here.
HISTORY of BALLOT INITIATIVES in OHIO
Ohioans adopted their very first constitution in 1802 shortly before the territory joined the union in 1803 as the 17th state. They codified a new constitution in 1851. During the Progressive Era (1896-1917), the state found itself at the forefront of a social movement that targeted corrupt political machines, extreme concentration of wealth, and the power of big business (sound familiar?). The progressives of the day championed women’s suffrage, alcohol prohibition, and direct democracy in the form of citizen-led initiatives/referenda. Believing the 1851 constitution to be outdated, a constitutional convention was called by voters in 1910, with the first meeting held in January 1912. After much deliberation, the convention decided to not rewrite the constitution, but instead, produced 41 amendments for consideration at a September 2012 special election. Thirty-three were adopted, among them the initiative and referendum provisions via 57.5% vote. Interestingly, in 1926, one of the few times the General Assembly referred a measure for an August special election, it failed. Rejection by voters and even the OAG on the initial pass tells the story of most proposed ballot issues.
THE BALLOT INITIATIVE PROCESS
For over 100 years, this process has remained largely the same. Four instruments can place a measure before Ohio voters: Citizen-Initiated Constitutional Amendment, General Assembly Initiated Constitutional Amendment, Citizen-Initiated Statute, and Referendum. [Editor’s Note: Please read the documents referenced by these links to learn more about this process.] Three of the four can be fielded by ordinary citizens and have mostly uniform procedures:
- Form a Committee to Represent the Petitioners.
- Create a petition in a specified format.
- Circulate the initial petition for signatures of 1,000 Ohio voters.
- Submit initial signatures to the Ohio Attorney General.
- Certification of the summary by the Ohio Attorney General as a fair and truthful statement.
- Certification by the Ballot Board of a single issue.
- Form a statewide ballot political action committee (PAC).
- File Form 15, if circulators are to be paid.
- Collect signatures from registered Ohio voters, half of which must come from 44 counties.
- Submit collected signatures to the Secretary of State’s office.
- “Cure period” for the collection of additional signatures if submission falls short.
- Certification by the Ballot Board that the measure does not create a monopoly.
- Composition of ballot language by the Ballot Board.
- Composition of a 300-word argument/explanation by the campaign.
- Publication of the arguments in a newspaper in each county of the state.
- Percentage for passage is a simple majority, 50%+1.
The differences among the three citizen-led initiatives can be found in these required numbers:
Citizen-Initiated Constitutional Amendment: 10% of vote in last gubernatorial election (2022): 413,487 signatures of registered Ohio voters; 5% each from 44 of 88 Ohio counties; simple majority for passage: 50%+1.
Citizen-Initiated Statute: 3% of vote in last gubernatorial election (2022): 132,887 signatures of registered Ohio voters; 1.5% each from 44 of 88 Ohio counties; simple majority for passage: 50%+1. NOTE: Initiated statutes have two signature gathering phases, one after SoS certification and one after GA fails to act.
Referendum: 6% of vote last gubernatorial election (2022): 265,774; 3% each from 44 of 88 Ohio counties; simple majority for passage: 50%+1. The law in question does not go into effect unless approved by voters.
The General Assembly Initiated Constitutional Amendment: Requires three-fifths vote of each legislative chamber for ballot placement; simple majority for passage: 50%+1 to insert ballot language in the Ohio constitution.
THE POLITICAL BACKDROP
Ohio is a trifecta state, meaning that one political party (Republican) controls both chambers of the legislature (House of Representatives and Senate), as well as the governorship and its executive offices like Attorney General and Secretary of State. Not only that, the seven-member Ohio Supreme Court has a Republican majority, one of whom is the Republican son of the Republican governor.
In this monopolistic governmental structure, only legislation that conforms with Republican ideology can be introduced and passed. SJR2 and S.B. 92 make this point. The former passed the Senate 26-7 along strict party lines. The House had five defections, but SJR2 passed anyway, 62-37. The latter shows the overwhelmingly Republican voting pattern, with one exception. Senator Nathan Manning voted ‘no’ with the Democrats.
One might suggest that Ohio is a Democratic state with 947,027 registrants compared with 836,080 registered Republicans. But excessive gerrymandering has changed the state from blue to ruby red. Herein lies an example of a trifecta’s downside. The same corrupt political machines, extreme concentration of wealth, and power of big business that worried progressives in 1912 have come home in 2023 to again defy the will of ‘We the People’. It’s a classic example of “Absolute Power Corrupts Absolutely.”
Of note, however, are the legions of citizens who expressed their opposition. Protesters filled the halls of the Statehouse, while high profile organizations like the League of Women Voters, Common Cause, and the Ohio Education Association offered compelling opposition testimony. Well over 150 people spoke against SJR2 at its hearing in May.
OHIO MARIJUANA BALLOT ISSUES
“It seems over time the Ohio Constitution has become the vehicle for bad policies related to casinos, marijuana, and other things that Ohioans have not asked for—because if we had, our elected representatives would have been the proper avenue for accomplishing those things.” (Nilani Jawahar, Center for Christian Virtue). Oh, the fallacies in this statement. First, according to the National Survey on Drug Use and Health, 1.2 million Ohioans used marijuana at least once over the past year. Secondly, 60% of Ohioans support legalizing adult use cannabis. Thirdly, the road to legalizing marijuana, one of the “safest therapeutically active substances known,” has been a long, difficult, and circuitous effort. Ohioans have not just asked for legalization; they have lobbied legislators for years.
From 1999 to 2016, seven medical marijuana bills were introduced into the General Assembly, all by Democrats, recalling that a Republican trifecta has controlled the Statehouse for most of the last twenty years. Only one bill was accorded proponent testimony (S.B. 343 in 2008). With legislation stalled, activists turned to ballot initiatives. Between 2011 and 2021, ten citizen-led ballot initiatives were certified for signature gathering by the Ohio Attorney General. Only five had serious campaigns, and only one found its way to the ballot, Responsible Ohio, which lost, but is frequently referenced by SJR2 proponents. [Editor’s Note: The very first cannabis-related ballot issue to be certified by the OAG was the Industrial Hemp and Medical Marijuana Initiative circulated by For a Better Ohio in 1995. This author cofounded the aforementioned Ohio Rights Group in 2013 to field the Ohio Cannabis Rights Amendment (OCRA).]
It is said that nothing makes a legislature move more quickly than a citizen initiated constitutional amendment, statute, or referendum. This is what finally brought that safe therapeutically active substance to Ohio. After RO’s blistering defeat in 2015, its organizers lobbied the Statehouse to pass a bill. In the meantime, Ohioans for Medical Marijuana (OMM) formed and was actively collecting signatures for their Medical Use of Cannabis proposed constitutional amendment, on track for ballot placement in the fall of 2016. Most activists lack the resources, knowledge, and connections to successfully run ballot initiatives. The OCRA was a case on point. This is why outside groups are often brought in to fill the gaps. Like initiatives in other states, the Washington D.C.-based Marijuana Policy Project (MPP) provided direction and dollars to OMM. The legislative alternative to OMM – House Bill 523 – passed the General Assembly in just two short weeks on May 25, 2016. Three days later, MPP left the state.
HISTORY REPEATS ITSELF – the SAGA of OHIO ISSUE 2 and 3 in 2015
Responsible Ohio (RO) in 2015 (Issue 3). The only marijuana-related citizen-initiated constitutional amendment to make the Ohio ballot was “Responsible Ohio.” From inception, this measure was fraught with problems. Its first submission to the OAG was rejected, which isn’t unusual since ballot language can be revised, resubmitted, and OAG certified, as RO’s was on 3/3/2015. However, wording was not the problem; the concept was. RO’s premise lay in an oligopolist approach that granted ten initial investors and their numbered LLCs exclusive cultivation rights at ten preselected sites once they each ponied up $2 million. The resulting $20 million became their campaign “war chest”. A series of strategic blunders, stumbles and falls ensued, including a General Assembly Constitutional Amendment (Issue 2), that ultimately led to a crushing 64-36% defeat in fall 2015 general election. RO’s war chest got them on the ballot, but they lost it all at the ballot box.
Ohio Initiated Monopolies Amendment in 2015 (Issue 2). Under the fig leaf of caring about monopolies manipulating the constitution, the Ohio General Assembly showed its distain for cannabis by passing this amendment in just two short weeks. The stated premise was to prohibit a “monopoly, oligopoly, or cartel” from using the Ohio Constitution for their financial benefit. The amendment also instructed the Ballot Board to create a “monopoly test” to determine if proposed ballot language violates that prohibition and, if so, divide the measure into two questions for voters. And had RO won, Issue 2 would have automatically nixed it anyway. Ultimately, even though RO lost, Issue 2 won narrowly, 51-49%. The language of Issue 2 that prevented RO’s passage remains in the Ohio Constitution (“Powers; limitation of use.” p. 10).
THE RMLA: CITIZEN-INITIATED STATUTE
Regulate Marijuana Like Alcohol Citizen-Initiated Statute. Regulate Marijuana Like Alcohol (RMLA) was originally submitted to the Ohio Attorney General (OAG) on 3/2/2020 as a proposed constitutional amendment. It was subsequently rejected 10 days later around the same time that the state shut down for the Covid-19 pandemic. The measure reemerged on 7/27/2021 as an initiated statute that was also rejected. However, the OAG certified a revised version on 8/20/2021. The Ohio Ballot Board subsequently ruled on 8/30/21 that the initiative met the single subject requirement, the final hurdle to permitting the Coalition to Regulate Marijuana Like Alcohol (CTRMLA) to collect the 132,887 signatures of registered voters necessary to place the law before the General Assembly. By 12/21/21, the Coalition had gathered 206,943 signatures and submitted them to the Ohio Secretary of State (SoS). But, on 1/3/22, the SoS determined that only 119,825 were valid. On 1/13/22, the Coalition turned in another 29,918 signatures, more than double the number needed. Altogether, the SoS found that the CTRMLA submitted 136,729 valid signatures of registered Ohio voters, 3,842 more than the 132,887 required.
Supposedly, once signatures have been submitted to the Secretary of State (SoS), the ballot language would be forwarded to the General Assembly, which the SoS did on 1/28/22. But technicalities ensued. The petition was indeed submitted 10 days before the start of the legislative session on 1/19/22. However, Secretary of State Frank LaRose found a signature shortfall on 1/3/22 that forced the coalition to further collect until 1/13/22. So, what is the qualifying date? The CTRMLA filed a lawsuit in the Franklin County Court of Common Pleas to find out. The coalition contended that the 1/28/22 referral to the OAG was correct and that the initiated statute process for RMLA should continue. Republican House and Senate leadership, on the other hand, wanted to see the process delayed to 2023 or tanked altogether, a typical tactic.
Per a legal agreement reached in May 2022, the first set of valid signatures collected for the statute count. As required, Secretary of State LaRose then resubmitted the measure to the Ohio General Assembly on 1/5/23. The GA had four months to pass the RMLA but failed to do so. Thus, on 5/4/2023, the coalition restarted its drive to collect 124,000 signatures by July 5th. If successful and passed by voters, the language of the RMLA will be inserted into the Ohio Revised Code (ORC) just like any other law.
The RMLA would legalize cannabis for adult use, regardless of any medical condition. It would also permit home growing of up to six plants, 12 per household. Citizen-initiated statutes are not affected by the proposed changes to citizen-led constitutional amendments. However, the General Assembly could gut the law once added to the ORC. Think they won’t? Reread the part about trifectas.
HOW to VOTE – Tuesday, August 8, 2023
The Special Election in August is not a foregone conclusion. The outcome of a pending lawsuit will determine whether or not these instructions are necessary. But if they are:
- Find out if you are eligible. You must meet certain criteria to vote in Ohio: 18+ years old, Ohio resident for at least 30 days and not incarcerated, among others.
- Check your voter registration with the Ohio Secretary of State (SoS). Click here. You can register to vote, update your address, or just make sure your information is correct. The registration deadline for the upcoming August election is July 10, 2023. Here’s a FAQ on voting from the SoS.
- Find out where you vote. Polling places can change from election to election. The Secretary of State provides this information here. See the clickable map or choose the Ohio county in which you reside.
- Make your plans before you vote. You can vote in person at your polling place on election day, or in person at an early voting location starting 7/11/2023 (hours vary), or by absentee ballot requested from the Secretary of State. Here are absentee ballot instructions.
- Mark your calendar now, make a plan, and JUST SAY NO to ISSUE 1!!
Editor’s note: MedicateOH thanks the Columbus Free Press for allowing us to republish Mary Jane Borden’s articles to reach a wider audience.