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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Opinion and Analysis

Referendum in Ohio Survives Single Separate Vote Rule Challenge

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October 11, 2005

Every five years or so I read a court decision and just throw up my hands in exasperation: "What could they be thinking??" The new Ohio Supreme Court decision of Wilke v Taft (Oct. 4) is such a case.

The state legislature has put on the ballot for the next election Issue 1, known as the "Jobs for Ohio " initiative. The referendum asks voters to approve a $2 billion bond issue. The proceeds will go to three different projects -- a $500 million for high-tech industry (the "Third Frontier" program), $1.35 billion for state infrastructure (water and road projects), and $150 million for industrial parks and other business site development initiatives. The initiative has bi-partisan support: The Senate passed the referendum unanimously; the vote was 85 to 7 in the House.

An anti-abortion advocate, disgruntled when the legislature refused to include a ban on funding for stem-cell research, has attacked Issue 1 as violating the Ohio State Constitution's "separate vote rule." Section 1, Article XVI of the Ohio Constitution states that ""When more than one amendment shall be submitted at the same time, they shall be submitted as to enable the electors to vote on each amendment separately." The separate vote rule is, according to the Ohio Supreme Court, broader that the more common "single subject rule."

The separate vote rule requires that any referendum or initiative put before the voters must have all its parts "reasonably related to a single general object or purpose." The rule attempts to stop "issue bundling" (referred to as "logrolling") in which proponents attach a very popular issue to an unpopular one. A favorable vote on the popular issue drags the unpopular issue with it. The proponents succeed in passing an issue that, if left on its own, would fail.

Issue 1 presents the classic case of issue bundling. The Third Frontier program part of the bond package was on the ballot alone in the last election. And it failed dramatically. With the Governor and influential members of the business community advocating its passage in public statements and political ads, there was no organized, funded opposition. There were no ads opposing the program. Yet the people of Ohio voted against it, 51 percent against to 49 percent in favor. It was a stunning and unexpected defeat. Folks knew who would repay the bonds if the subsidized businesses languished, the taxpayers.

Now the Governor is representing the still fresh carrion of the Third Frontier proposal with a sweetener - the water, roads and parks infrastructure package. He knows people in Ohio , tired of traffic congestion, will support bonds for new roads. He hopes that the affirmative vote for roads will drag the Third Frontier program with it. Early polls suggest that the tactic will work; Issue 1 is ahead 56 percent to 22 percent with 22 percent still undecided.

The Ohio Supreme Court, asked to rule on whether the bond package violates the separate vote rule, ruled 5 to 2 that it did not. It is hard to find a more classic case of issue bundling than this. The Court even acknowledged the "tactical decision" behind the amendment. The Court stated that since all the proposals related to the creation of jobs in Ohio they could be voted on as one ballot issue.

Job creation in Ohio is a laudable goal, especially in the face of declining job availability here. But a laudable goal should not drive this holding. The effect of the ruling is to gut the separate vote requirement in the Ohio constitution. Find an overarching purpose and the legislature can pour any number of programs into a single ballot issue. Under the guise of promoting citizen safety, for example, can we include proposals for more police, personal handgun privileges, and a prohibition on cell phone use while driving? Make the argument and if the political and economic winds are right, it might work.