Ohio Constitution News

The year 2021 represents the third consecutive year in which Ohio voters were not presented an opportunity to vote on any proposed amendments to the Ohio Constitution.

In the first two decades of the 21st century, Ohio voters approved 18 of 31 proposed amendments to the Ohio Constitution. Of the 31, 16 were proposed by the state’s constitutional initiative, but voters approved only 5 of them and rejected 11. Of the 15 amendments proposed by the General Assembly during this period, the voters approved 13 and rejected 2. Thus, the historic experience of Ohio voters being far more likely to approve amendments proposed by the General Assembly than by the initiative has continued. Statistical tables summarizing the historic pattern of approvals and disapprovals of state constitutional amendments are on the Ohio Constitutional Law and History Webpage

The 5 constitutional amendments proposed by initiative and approved by the voters in the 21st century added provisions to the Ohio Constitution:
• To bar same-sex marriage (2004) (Art. XV, sec. 111)
• To require increases in the state minimum wage
(2006) (Art. II, sec. 34a)
• To permit casino gambling in four locations around
the state (2009) (Art. XV, sec. 6(C))
• To grant a freedom to choose healthcare (2011) (Art.
I, sec. 21)
• To amend the constitutional provision known as
“Marsy’s Law,” which protects the rights of crime
victims (2017) (Art. I. sec. 10a)

In the three years since 2018, there have not been any proposed constitutional amendments on the ballot, thus making this the longest period since the 1912 adoption of the initiative in which the voters have not been presented with any amendments proposed by either the General Assembly or the initiative.

Despite the absence of proposed initiated amendments on the ballot, there have been multiple efforts to place proposed amendments on the ballot. The website of the Ohio Attorney General, which lists amendments proposed by initiative, reports that since the beginning of 2007, a period of almost 15 years, 48 petitions were submitted to the Attorney General with the text of the proposed amendment and a summary of the proposed amendment. If the Attorney General determines that the summary is a “fair and truthful” statement of the proposed amendment, Attorney General forwards the petition to the Ohio Ballot Board for a determination of whether the petition contains only one proposed amendment. Only then may petitioners begin collecting signatures, which they must submit to the Secretary of State.

Ohio Issue 1, Congressional Redistricting Procedures Amendment, was approved by Ohio voters in the May 8, 2018 primary election. Official elections results show that the ballot issue was approved by 1,178,468 votes in favor to 395,088 votes against. According to the certified ballot language, available on the Secretary of State’s website:

“The proposed amendment would:

• End the partisan process for drawing congressional districts, and replace it with a process with the goals of promoting bipartisanship, keeping local communities together, and having district boundaries that are more compact.
• Ensure a transparent process by requiring public hearings and allowing public submission of proposed plans.
• Require the General Assembly or the Ohio redistricting Commission to adopt new congressional districts by bipartisan vote for the plan to be effective for the full 10-year period.
• Require that if a plan is adopted by the General Assembly without significant bipartisan support, it cannot be effective for the entire 10-year period and must comply with explicit anti-gerrymandering requirements.

[…] the amendment will become effective immediately.”

The result is that Section 1 of Article XI, taking effect on January 1, 2021, will be amended, and Sections 1, 2, and 3 of Article XIX will be enacted to establish a process for congressional redistricting. The full text of the amendment is available here: SJR 5 (132nd GA (2018)). Ohio Constitution News blog shared a succinct explanation in this post on February 15, 2018. For additional statements, the certified arguments for and against are still available from the Secretary of State’s website.

The Ohio General Assembly has approved a proposed amendment, SJR 5 (132nd GA (2018)), to add a new Article, Article XIX, to the Ohio Constitution to address congressional redistricting.  The proposed amendment will be on the May 8, 2018, ballot, and Ohio voters will have to approve this amendment for it to become part of the Ohio Constitution.

In November 2015, Ohio voters approved an amendment proposed by the General Assembly to revise the way in which state legislative district lines are drawn and the standards for drawing these lines.  This process, known as Apportionment, is addressed in Article XI of the Ohio Constitution, and it does not deal with congressional redistricting, which has been left in the hands of the General Assembly.

The 2015 amendment created an Ohio Legislative Districting Commission to address state apportionment, and the proposed amendment would give this Commission the authority to also address congressional redistricting.

Congressional redistricting has become a visible issue given the fact that in this relatively evenly split state, one political party has 12 of the 16 congressional seats.  The need for significant changes in the district lines will become more acute after the 2020 census, since Ohio will likely lose one seat in Congress.

A recent article in the Columbus Dispatch succinctly described the proposal as follows:

The proposed constitutional amendment sets up a bipartisan process to draw a new 10-year map, significantly changing the current map-drawing process that allows the majority to work alone, gerrymandering districts to its benefit. Republicans have held a firm grip on 12 of Ohio’s 16 congressional districts since drawing the map in 2011, and few races have been competitive.

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Unlike the current process, which requires no minority-party support and has few rules that need followed, the new proposal initially requires 50 percent of the minority party in each chamber to approve a map for 10 years. It also would limit how often counties can be split into multiple congressional seats, and it would require public hearings and the ability for the public to submit maps.

Under that plan, 65 counties cannot be divided, 18 can be divided once and five can be divided twice into three congressional districts. Currently, many counties are split, such as Cuyahoga and Summit counties in Democrat-rich northeast Ohio that are split into four districts as Republicans sliced them up for partisan advantage.

If the legislature is unable to come to a bipartisan agreement, the multi-step process moves to a seven- member commission consisting of the governor, auditor, secretary of state and four lawmakers, where a 10-year map would require at least two minority-party votes.

If that fails, the process goes back to the legislature, where it would require a three-fifths vote in each chamber, including one-third of each minority caucus, to pass a 10-year map.

If there’s still no deal, the majority can draw a four-year map on its own, but it would be under stricter criteria, including prohibitions against several acts — “unduly” splitting counties and other jurisdictions, drawing a district that favors or disfavors a party, or drawing districts to favor incumbents. That process also would require the majority to formally justify why it decided to draw each district, which advocates say would hold them accountable to the courts and the public.

Any map that is approved would be subject to a potential governor’s veto, or a ballot referendum that attempts to overturn the map.

Jim Siegel, Bipartisan deal finalized, voters to decide congressional redistricting changes (Dispatch) (2-6-2018)

 Ohio House Joint Resolution No. 8 was introduced on May 25, 2016. The resolution proposes to amend Article 1, Section 6 of the Ohio Constitution, to prohibit slavery or involuntary servitude from being used as a punishment for committing a crime. Currently, Section 6 of Article 1 states “There shall be no slavery in this state; nor involuntary servitude, unless for the punishment of crime.” The resolution proposes to remove the phrase “unless for the punishment of crime.” The resolution was introduced by Representatives Reece and Sykes, and if approved by three-fifths of the members of both the House and Senate, it will then be placed on the general election ballot in November for vote by Ohio citizens.

ResponsibleOhio’s marijuana legalization amendment may run afoul of the Commerce Clause if the marijuana monopoly is enforced to prohibit out-of-state growers from selling marijuana in Ohio.  This may be true even the federal government does not legalize marijuana.

See Crain’s Cleveland Business.  Monopoly on Ohio marijuana market could be cloudy issue

SJR 3 Proposing to enact Section 2t of Article VIII of the Constitution of the State of Ohio to permit the issuance of general obligation bonds to fund sewer and water capital improvements.

ResponsibleOhio filed a complaint in mandamus challenging the ballot language of their marijuana legalization initiative petition.  View the complaint.   View the court docket.  The complaint alleges that the ballot adopted by the Ohio Ballot Board violates Article XVI, Section 1 of the Ohio Constitution which requires that ballot language can not deceive, mislead or defraud the voters.

Dean Emeritus Steven H. Steinglass opines that if both anti-monopoly and the “marijuana monopoly” amendments to the Ohio Constitution are passed and the anti-monopoly amendment gets more votes, the anti-monopoly amendment will completely wipe out the ResponsibleOhio “marijuana monopoly” amendment because:

1.  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.

and,

2.  The monopoly provisions are too embedded in the ResponsibleOhio amendment, so a court could not sever the monopoly provisions and leave the rest remaining.

See Cleveland.com: What happens if both marijuana legalization and anti-monopoly amendments pass?

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.

The Ohio Attorney General rejected the Ohio Medical Cannabis Amendment Initiative Petition because of omissons in the summary language.  See Akron News Now: Bad Day For Two Ohio Pot Issues.