The Ohio Secretary of State verified that ResponsibleOhio obtained sufficient signatures for their marijuana amendment to appear on the ballot this fall. See Cleveland.com, Marijuana legalization amendment approved for Ohio’s November ballot. The proposed amendment would limit the growing of marijuana to ten sites specified in the Ohio Constitution. The ten sites are owned by ballot campaign investors, but the campaign investors are selling shares in their marijuana farms. Cleveland.com: ResponsibleOhio investors to sell shares in pot growing companies. There are no similar limitations on who can manufacture marijuana items and sell them retail.
The ResponsibleOhio proposed amendment will be Issue 3 on the ballot. Also on the ballot will be proposed amendments to the Ohio Constitution for redistricting reform for Ohio legislative districts, and to restrict constitutionally created monopolies. The later proposed amendment was created in response to the ResponsibleOhio marijuana amendment.
So, what will happen if the ResponsibleOhio amendment and the anti-monopoly amendment both pass? Ohio Constitution Article II, Section 1b provides that if amendments conflict,and both are approved, the amendment with the most votes will amend the Constitution. The Supreme Court of Ohio may ultimately decide whether the two amendments conflict, and which one prevails. See State ex rel. Greenlund v. Fulton (1919), 99 Ohio St. 168.
State ex rel. Greenlund resolved the only situation in Ohio history where two proposed amendments conflicted and both were passed. The two conflicting amendments concerned taxes:
1. The Shinn Amendment – proposed by the General Assembly in March, 1917, this initiative aimed to amend Ohio Constitution Article XII, Section 2 to eliminate taxation of both real property and a mortgage on real property. The amendment language kept the existing language of Article XII, Section 2 which established a system of uniform taxation, meaning all types of property are taxed at the same rate.
2. The Classification Amendment – proposed by Initiative Petition in 1918, went even further. It proposed a classification system of taxation. The uniform tax rate language of Ohio Constitution Article XII, Section 2 would be changed to allow different tax rates for different types of property – such as real property vs. personal property. The thought was that if personal or intangible property was taxed at a lower rate than real property, the owners of the personal property would be less apt to hide it and more apt to pay the tax.
Both amendments passed, but the Shinn amendment garnered more yes votes than the Classification Amendment. The Ohio Supreme Court decided that the two amendments were actually in conflict, so the Shinn Amendment would amend the Ohio Constitution, while the Classification Amendment would not. See State ex rel. Greenlund v. Fulton (1919), 99 Ohio St. 168. The court found that because the Shinn amendment included the uniform tax language of the existing constitutional section, it conflicts with the Classification amendment, which would replace uniform tax with classification.
The Classification Amendment was on the ballot again in 1919, and was defeated. Ohio farmers voiced stronger opposition to the Classification Amendment in 1919 than in 1918.
Fast forward to 2015. The situation is a bit different because the Anti-Monopoly law and the marijuana amendment relate to different sections of the Ohio Constitution. The marijuana amendment adds Article XV, Section 12 and the Anti-Monopoly proposal amends Section 1e of Article II. However, the two proposals are clearly in conflict. One severely restricts special interest amendments, while the other would in fact be an amendment to the Ohio Constitution creating a special interest. But, if both amendments pass, could the provisions of the marijuana amendment that don’t create a special interest survive to amend the Ohio Constitution? Maybe – but the language of Ohio Constitution Article II, Section 1b does provide that:
If conflicting proposed laws or conflicting proposed amendments to the constitution shall be approved at the same election by a majority of the total number of votes cast for and against the same, the one receiving the highest number of affirmative votes shall be the law, or in the case of amendments to the constitution shall be the amendment to the constitution.
The language of the constitution itself does not provide for striking some provisions of a proposed amendment and enacting others.
Update: It was pointed out to me that the Anti-Monopoly amendment contains the following language:
If, at the general election held on November 3, 2015, the electors approve a proposed constitutional amendment that conflicts with division (B)(1) of this section with regard to the creation of a monopoly, oligopoly, or cartel for the sale, distribution or other use of any federal Schedule I controlled substance, then notwithstanding any severability provision to the contrary. the entire proposed constitutional amendment shall not take effect.
Thus, if voters approve the Anti-Monopoly amendment with more votes, this language would prohibit severing the monopoly from the marijuana. If the ResponsibleOhio amendment gets more votes, however, the provisions of the Anti-Monopoly amendment dealing with the 2015 election could be severed and the other provisions remain – assuming such severability is allowed.
