Says lawmakers within rights to violate law they passed

COLUMBUS (AP) — An August special election that will determine citizens’ future access to the Ohio Constitution — and potentially the fate of an abortion rights amendment — can go forward as planned despite state lawmakers passing a law last year that eliminated most elections in August, the Ohio Supreme Court ruled Friday.

In a 4-3 decision, the high court found that the Legislature’s constitutional right to determine the dates of elections trumps any laws they might pass to limit them.

The General Assembly’s exercise of its constitutional power “overrides any election statute that would otherwise prohibit the special election,” Chief Justice Sharon Kennedy wrote for the majority, allowing Republican Secretary of State Frank LaRose to proceed with the Aug. 8 vote. Her opinion was joined by the court’s three other Republicans, with the three Democratic justices dissenting.

The ruling comes as a blow to One Person One Vote, the campaign against Issue 1, a proposal to raise the threshold for passing future constitutional amendments from the simple majority in place since 1912 to a 60 percent supermajority. 

The group had sought to stop the election, arguing that the Republican-controlled Legislature erred by failing to pass a fresh bill re-authorizing August special elections — instead wedging the August election date into a joint resolution sending the ballot measure straight to voters.

If approved, the higher threshold could thwart approval of a November constitutional amendment to enshrine access to abortion in the Ohio Constitution. 

Similar measures elsewhere have passed with just under 60 percent of the vote.

Justice Michael P. Donnelly sided with the plaintiffs in his dissent, writing that lawmakers could have made “any number of changes” to Ohio election law in order to make the election scheduled for August legal.

“But rather than changing the law, the General Assembly and respondent, Secretary of State Frank LaRose, want to be told that the Ohio Constitution allows the General Assembly to break its own laws,” he wrote. “Rather than doing the work themselves, they want this court to fix their mess and do their work for them. Sadly, a majority of this court obliges.”

Before changing their tune, Republican legislative leaders initially appeared to agree that they needed to pass legislation to set the election for August. 

Companion bills doing just that were introduced in both the Ohio Senate and the Ohio House. Both ran into roadblocks.

The House bill stalled altogether. 

The Senate passed its version and sent it to the House, where it faced so much opposition that committee votes twice had to be canceled.

A number of majority Republican legislators balked at voting to reverse a law that they had supported only months earlier, on grounds that August special elections were hard on local election boards, expensive and subject to perpetually low turnouts. 

LaRose himself opposed such elections as bad for democracy. 

Others refused to support the August date until they knew for sure that the 60 percent measure — which was in the throes of a contentious debate — had the support to pass.

Donnelly, a Democrat, opined that, even if the Ohio Constitution doesn’t require the Legislature to prescribe special election rules the way that it did, “the fact of the matter is that it did. Now it has to follow them.”

Justice Pat Fischer, a Republican, concurred with the majority opinion in judgment only. He did not elaborate.

Another Democrat, Justice Jennifer Brunner wrote a separate dissent “to make clear for the members of the majority and the public, the long reach of the ramifications of this court’s judgment today.”

She noted that many constitutional rights, including rights to free speech and assembly and to bear arms, are subject to restrictions laid out in laws passed by the General Assembly: “In short, many of our statutory laws burden some constitutional right in some way, and yet they are presumed to be constitutional when enacted and are not struck down unless they are found to have impermissibly burdened a constitutional right.”

By ruling as it did, Brunner argued, the high court has allowed the Legislature to set an August date “specifically not authorized in law,” when justices should have struck down an election that “can neither exist nor proceed under the law of this state.”