The Battle Over How to Amend Ohio’s Constitution: Issue 1 on the Ballot in August

ALL ABOUT OHIO’S ISSUE 1 IN AUGUST

On May 10, 2023, the Ohio General Assembly approved a resolution to make it harder to amend the Ohio Constitution via citizen-led ballot initiatives. Ohioans will vote on this issue, State Issue 1, through a specially created August 8 election.

This is an unprecedented move. In 1851, the Ohio Constitution was approved by a simple majority and since 1912, amendments to the Ohio Constitution have required approval by a majority of Ohio voters (50% +1). Among other important changes, Issue 1 of the August Special Election would raise the approval for changes to the Ohio Constitution to 60% of the vote. 

The change has enormous implications down the road for Ohio, ending 111 years of majority rule and allowing a minority of voters to determine the direction of the state. 

Important provisions in the Ohio Constitution would be missing had the higher passage rate of 60% been in effect. The most jarring example is from 1912 when Ohio voters approved an amendment to end nepotism and cronyism by 59.9%. Article XV, Section 10 states: 

Appointments and promotions in the civil service of the state, the several counties, and cities, shall be made according to merit and fitness, to be ascertained, as is practicable, by competitive examinations. Laws shall be passed providing for the enforcement of this provision. 

While this proposal could have been placed on the November 2023 ballot, the state legislature deliberately chose to put this significant change on a specially created election.

Voter approval in August would mean that this higher passage rate would go into effect just in time for the November election, when enshrining the right to abortion is expected to be on the ballot. Other potentially forthcoming constitutional amendments also could be affected, including efforts to increase the minimum wage, legalize recreational marijuana, and reform Ohio’s redistricting system.

How We Got Here

During last year’s lame duck session, Ohio’s Legislature passed a new voting law, House Bill 458, which abolished August special elections unless local governments have a fiscal emergency. The Republican majority voted to abolish most of the special elections due to cost and low voter turnout of eight percent. 

In 2021, Secretary of State Frank LaRose described his support for eliminating August Special Elections this way:

August special elections generate chronically low turnout because voters aren’t expecting an election to occur. This is bad news for the civic health of our state. Interest groups often manipulatively put issues on the ballot in August because they know fewer Ohioans are paying attention. As a result, the side that wins is typically the one that has a vested interest in the passage of the issue. Voters are just as capable of voting on these important issues during the standard primary and general elections.

Despite the passage of HB 458 and the fact that this remarkable change to the Ohio Constitution was never raised during the 2022 Election, the Ohio General Assembly changed course and initially adopted a two-pronged proposal to reinstate August special elections. First, it would allow for an August Special Election by way of Senate Bill 92; and second, it would approve Senate Joint Resolution 2 (SJR 2) that would – if approved by voters at the ballot box – require 60% of voter support to amend the Ohio Constitution as opposed to a simple majority. Ultimately, the Ohio House voted to fast-track its plans in May by folding SB 92’s election allocation into SJR2. Click here to see how your legislator voted on SJR 2. 

Citizen-led Ballot Initiatives: What Issue 1 Says

The ballot measure would amend Sections 1b, 1e, and 1g of Article II and Sections 1 and 3 of Article XVI of the Ohio Constitution. 

If a citizen feels that an issue is not addressed properly (or at all) in the Ohio Constitution, he or she can follow the procedures outlined in the Ohio Constitution and Revised Code to submit a proposed constitutional amendment to the people of Ohio for a statewide vote. 

Currently to get a citizen-led initiative on the ballot to amend Ohio’s Constitution, the following is required:

• The percentage of state voters who would have to vote “yes” to pass future proposed amendments is 50% +1, a simple majority.
• Petition signatures must be obtained from at least 44 of the 88 counties in Ohio. 
• From each of the 44 counties, there must be signatures equal to at least 5 percent of the total vote cast for the office of governor in that county at the last gubernatorial election.
• The Secretary of State must determine the sufficiency of the signatures not later than 105 days before the election. If any petitions or signatures are determined to be insufficient, the petitioners are permitted 10 additional days to collect and file additional signatures (“cure period”).

If State Issue 1 passes, the requirements would change to the following:

• Increase the percentage of state voters who would have to vote “yes” to pass future proposed amendments from 50% to 60%. 
• Signatures must be obtained from all of the 88 counties in Ohio. 
• From each of the 88 counties, there must be signatures equal to at least 5 percent of the total vote cast for the office of governor in that county at the last gubernatorial election.
• Eliminate the 10-day “cure period” during which amendment campaigns can collect additional signatures if their first batch falls short.

Issue 1 Support and Opposition

After denying that abortion was a factor, Secretary of State LaRose admitted that “Issue 1 is ‘100%’ about blocking the abortion measure.” He highlighted the choice of political expediency over tradition when he told supporters, “Some people say this is all about abortion. Well, you know what? It’s 100% about keeping a radical pro-abortion amendment out of our constitution. The left wants to jam it in there this coming November.” 

Republican legislators and statewide officials support Issue 1 and many cite “out of state special interests” as their reason. In addition to “protecting Ohio’s Constitution from special interests,” Republican State Senator Rob McColley offered another reason, stating that this measure would prevent “sweetheart deals” from getting into Ohio’s Constitution, citing the 2009 casino amendment as one such deal.

Issue 1 is also supported by the Ohio Chamber of Commerce. However, not all business leaders are on board, including the founder of the Ohio Roundtable and the former CEO of Procter & Gamble. 

On the other hand, opponents are concerned about the historic low voter turnout for special elections and fear that the state legislature is attempting to sneak these historic changes past voters. Opposition to Issue 1 involves more than two hundred organizations including the Ohio Fair Courts Alliance, the Fraternal Order of Police of Ohio, and Faith Choice Ohio.

All of the living former Governors and five Attorney Generals (including Republicans and Democrats) have repudiated the proposed change and current mayors, public servants, citizens, and many others have spoken out against State Issue 1. At stake they say is the end of majority rule where 40% of voters would veto the will of 60% of voters for citizen initiatives. Issue 1 would mean almost insurmountable hurdles for getting a citizen-led initiative on the ballot.

Former State Representative and Dispatch editor Mike Curtin said, “Those justifications don’t make sense. It’s a phantom, it’s sasquatch, it’s the boogeyman.” He recounted the track record for citizen-initiated amendments:  

Over [the last] 15 years, of those 51 separate groups, six were successful in placing proposed amendments on the ballot — six. Of those six, three won and three lost. Of the three that won, Republicans supported two of those three. Three wins in 51 attempts for a batting average of 6%. Ladies and gentlemen, that is not a record of our Ohio constitution being ‘easily influenced by outsiders.’

Bolstering Curtin’s argument is, despite claims about protection from outside special interests, a political action committee called Save Our Constitution – backed by Illinois Billionaire Richard Uihlein – spent more than $1 million dollars on political ads to put pressure on legislators to put Issue 1 on the ballot. 

A CBS News investigation found a coordinated campaign, again heavily funded by Republican mega-donor Richard Uihlein, that could make it hard to pass amendments to protect abortion access in places like Ohio. The report shows how that effort was also used in other states. Former Ohio Supreme Court Justice Maureen O’Connor was interviewed for this investigation and said, “When you keep changing the rules & moving the goalposts, you are intentionally silencing the vote of the people.”

Legal Challenges

Lawsuits came swiftly and the Ohio Supreme Court ruled on the following three cases related to the campaign. 

State ex rel. DeBlase v. Ohio Ballot Bd (2023-Ohio-1823) 

This action arose from an initiative petition proposing a constitutional amendment titled “The Right to Reproductive Freedom with Protections for Health and Safety.” It was filed on May 2, 2023 by registered Ohio voters Margaret DeBlase and John Giroux, seeking to compel Secretary of State Frank LaRose to convene a meeting of the ballot board and to compel the board to vacate its decision and instead determine that the petition contains more than one proposed amendment. 

On June 1, 2023, in a 7-0 decision, the court ruled that the Ohio Ballot Board “did not abuse discretion or disregard applicable law in determining that the petition at issue proposes only one constitutional amendment, as required by R.C. 3505.062(A).”

State ex rel. One Person One Vote v. Ohio Ballot Bd (2023-Ohio-1928) 

This case involved the ballot language adopted by the Ohio Ballot Board and the ballot title adopted by the Secretary of State Frank LaRose. The Relators, One Person One Vote, Jeniece Brock, Brent Edwards, and Christopher Tavenor, argued that the ballot language and title were incomplete and misleading and that the amendment violated legal standards established by the Revised Code and the Constitution. 

Relators therefore requested that the Court issue writs of mandamus directing the Ballot Board to reconvene and adopt ballot language that properly and lawfully describes the amendment, or, in the alternative, adopt the full text of the Amendment as the ballot language; and directing Secretary LaRose to adopt a ballot title that properly and lawfully describes the amendment.

On June 12, 2023, in a 4-3 ruling, the court ordered the board to revisit part of the title and a technical error in the measure. The court stated that the phrase in the title “any constitutional amendment” is misleading because it incorrectly suggests that the signature changes would apply to all amendments. The title was subsequently changed to “an initiated constitutional amendment. Regarding the technical error, the justices ordered the Ballot Board to redo that part so it accurately reflects the number of required signatures.

State ex rel. One Person One Vote v. LaRose (2023-Ohio-1992) 

On May 31, 2023, the One Person One Vote advocacy group sued Secretary of State Frank LaRose and asked the court to direct him to: (i) remove the constitutional amendment proposed by Amended Substitute Senate Joint Resolution Number 2 (“S.J.R. 2”) from the August 8, 2023, special election ballot and (ii) instruct county election officials not to proceed with the special election. 

The group contended that the amended S.J.R. 2 setting of an August 8, 2023 special election is contrary to law and requested the court strike the August 8 special election on the grounds that it was unlawfully approved by state lawmakers. The group argued the election is not legal because Ohio’s new voting law, House Bill 458, abolished August Special Elections and allows municipalities and school districts to hold August special elections only if they’re under a fiscal emergency.  

Steven Steinglass, a retired dean and law professor at Cleveland State University’s College of Law who authored a book about the Ohio Constitution, said the state’s statutory law — including HB 458 — cannot be repealed or amended by a joint resolution, Steinglass said, citing an 1897 case before the state’s highest court. “That’s 123 years ago, and I view this as a bedrock principle of Ohio constitutional law,” he said. “Two different instruments, two different processes — you can’t combine them.”

However, on June 16, 2023, in a 4-3 ruling split down party lines, the Ohio Supreme Court determined that lawmakers legally set an August 8 election for Issue 1. The court ruled it was legal, stating that “Article XVI, Section 1 of the Ohio Constitution authorizes the General Assembly to prescribe a special election on a specific date by joint resolution.”

Key Voting Information

Now that these lawsuits have been settled, Ohioans will go to the polls on Tuesday, August 8, 2023 to vote on State Issue 1, the only item on the ballot. Here is some important voting information to review before casting your ballot:

• You can vote early in person, vote by mail, or vote on Election Day. 
• Early voting started Tuesday, July 11. Find your early vote location here.
• If you vote by mail, request your absentee ballot by August 1.
• Check the new voter ID laws before you cast an in-person ballot.

Conclusion

While the outcome of August’s high-stakes election will impact all Ohioans for years to come, all eyes are on Ohio as the end result has the potential for national implications.

According to Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, “What happens in Ohio, win or lose, will have an impact moving forward and have a reverberating effect across the country… Whatever happens, it will set the tone for how we go into 2024 legislative sessions, what tactics, what nuances state legislatures may do to try and undermine the will of the people, and impact the ability of citizens to bring issues to the ballot.” 

In other words, don’t sit this one out.