Posted: April 3, 2012
Thoughts on HB 194 and Ohio's Referendum Process
On July 1, 2011, Ohio Governor John Kasich signed into law HB 194, a comprehensive election law reform bill. Immediately upon the bill’s passage, a coalition of legislators, voting rights advocates, labor unions, and progressive organizations began gathering signatures to put the measure to a referendum, hoping to repeal the law. In December, the Ohio Secretary of State certified that the referendum proponents had successfully gathered the requisite number of valid signatures to place the bill onto the November 2012 ballot. However, on March 28, 2012, the Ohio Senate voted to repeal HB 194, and it seems likely that the Ohio House of Representatives and the Governor will support that repeal. This legislative response of repealing a law after it has been certified for a referendum is an unprecedented move in Ohio, raising numerous questions about both procedure and policy.
HISTORY AND EFFECT OF HB 194 AND SUBSEQUENT ELECTION LAW BILLS
House Bill 194 began its journey in May 2011, when Representatives Mecklenborg and Blessing introduced a bill to “revise the Election Law.” After numerous hearings, voluminous testimony, and multiple amendments, a bill that originally amended thirty-four sections and enacted three new sections of the Ohio Revised Code mushroomed into one that amended over 120 sections, enacted thirteen new ones, and repealed five sections of the Code. Votes in both the House and the Senate split along party lines.
According to its proponents, the bill “makes numerous efforts to ensure the integrity of the elections process and simplify the process, including eliminating a period of time where voters can register and vote at the same time, known as ‘Golden Week,’ helping to verify the accuracy of voter rolls, improving the verification process for valid provisional and absentee ballots, and setting statewide standards to all facets of voting.”
Upon the bill’s final passage on June 29, 2011, Fair Elections Ohio, a coalition of legislators, voting rights advocates, labor unions, progressive organizations, and concerned citizens formed to place a referendum on the ballot to repeal HB 194. Their main objections centered on what they characterized as reduced access to voting, including a shortened early voting period that cut off early in-person absentee voting during the weekend before the election, increased voter identification requirements, decreased responsibility for poll workers to help voters vote in the proper precinct, and stricter technical requirements for absentee and provisional votes.
A few weeks after HB 194 was signed into law, HB 224 passed both houses of the Ohio General Assembly by unanimous votes. That bill focused mainly on changes affecting military and overseas voters, and the title included the bill’s intent “to make technical corrections to the laws governing elections, and to declare an emergency.” Included in those “technical amendments” were provisions adding some of HB 194’s changes to sections of the Code that HB 194 did not amend. Because HB 224 received the supermajority support required to pass as an emergency bill, the bill was referendum-proof, even if objections to these provisions had been raised at the time of the bill’s passage, which they were not.
House members of the State Government and Elections Committee later objected to the Secretary of State’s directives advising county boards of elections to give effect to HB 224’s cut-off dates for voting. Those members argued that the later-enacted additions to the Code, extending HB 194’s effects to additional sections of the Code, “cannot be implemented because it conflicts with the clear intentions and actions of the voters who signed the HB 194 referendum petition to stop such a cut to early voting from taking effect.” Secretary of State Husted responded that “Hypothetically, even if I agreed with your statement of intent, I am not at liberty to ignore the law.”
Most recently, on March 28, 2012, the Ohio Senate passed, again along a party-line vote, SB 295, described as a bill to repeal HB 194. Senate Bill 295 now goes to the Ohio House of Representatives, where Speaker Batchelder has indicated that he supports repeal of HB 194.
The language of SB 295 states that “it is the intent of the General Assembly to continue in operation [existing] provisions of the Revised Code, which are currently in effect,” which would potentially retain any subsequent changes to Code sections potentially impacted by the referendum on HB 194. Thus, SB 295 does not return voting laws in Ohio to the status quo that existed prior to the passage of HB 194. Some of HB 194’s most objected-to provisions, including elimination of in-person early voting from the weekend before the election, may survive the “repeal,” as they were re-passed by the General Assembly in HB 224, after HB 194’s passage. The language in SB 295 states the legislature’s intent to continue current law, which would include those later-passed provisions.
OHIO REFERENDUM PROCESS
The basic process for submitting a law to Ohio voters for their approval or rejection is as follows: The petitioning committee submits a petition that includes the full text and a summary of the law, signed by at least 1000 registered Ohio voters, to the Secretary of State for validation of both the signatures and the petition language. The petitioners also submit the language to the Attorney General, who certifies whether the summary is a “fair and truthful statement of the measure to be referred.” Once the language is certified, the petitioners must gather additional signatures, equal to at least six percent of the votes cast for governor in the last gubernatorial election, from qualified electors from at least half of the counties in the state. These certifications and the signature-gathering processes must happen within ninety days after the Governor files the contested law with the Secretary of State.
If sufficient signatures are gathered, the measure is scheduled to be put to a vote of the general electorate at the next general election. At least eighty days before the election, both the petitioning committee seeking to overturn the law and designees of the General Assembly seeking to retain the law may file three-hundred word arguments and explanations with the Secretary of State for publication in newspapers and to appear on the ballot. If either side fails to prepare their arguments and explanations, the bipartisan Ohio Ballot Board, consisting of the Secretary of State and four appointed members, must prepare the language, and file the language with the Secretary of State no later than seventy-five days before the election.
The Constitution exempts three kinds of bills from the referendum: (1) laws providing for tax levies; (2) appropriations for current expenses; and (3) laws passed as an emergency. Because an emergency law eliminates the people’s right to repeal it through the referendum process, laws passed as an emergency require a supermajority vote of two-thirds of all members of each house, not just a simple majority vote.
In 2006, the General Assembly amended the Revised Code to provide that a majority of the members of a petitioning committee could withdraw the petition prior to the seventieth day before the election. If the Secretary of State receives such notice, the following results occur: (1) if the Ballot Board has not yet certified the ballot language, it will not go forward with certifying; (2) the Secretary of State will not certify a ballot form or language; and (3) the referendum will not appear on the ballot. Once withdrawn in this manner, the petition cannot be resubmitted.
Any law subject to a referendum is stayed from taking effect during the pendency of the process.
ISSUES RAISED BY REPEALING A BILL SET FOR REFERENDUM VOTE
Has the HB 194 referendum process reached the point that the Secretary of State is required to submit the referendum to the voters?
The first section of the Ohio Constitution’s article on legislation states that, while the legislative power is vested in the General Assembly, “the people reserve to themselves the power to propose to the General Assembly laws and amendments to the constitution, and to adopt or reject the same at the polls on a referendum vote as hereinafter provided.” Ohio Const. art. II § 1. Section 1(c) goes on to state:
When a petition, signed by six per centum of the electors of the state and verified as herein provided, shall have been filed with the secretary of state within ninety days after any law shall have been filed by the governor in the office of the secretary of state, ordering that such law, section of such law or any item in such law appropriating money be submitted to the electors of the state for their approval or rejection, the secretary of state shall submit to the electors of the state for their approval or rejection such law, section or item, in the manner herein provided, at the next succeeding regular or general election in any year occurring subsequent to one hundred twenty-five days after the filing of such petition, and no such law, section or item shall go into effect until and unless approved by a majority of those voting upon the same. [emphasis added]
Additional constitutional sections and statutes spell out in greater detail the requirements for verifying the signatures, preparing the arguments or explanations, and dates by which various acts must take place. “Shall” language is found throughout the provisions, and is generally interpreted as creating a duty to act.
While the Secretary of State has a number of duties stemming from those constitutional and statutory sections, the question remains whether HB 194 has passed the point where the Secretary can decline to place the issue on the ballot. In a case in which a petitioner tried to prevent an initiated statute from appearing on the ballot, the Ohio Supreme Court wrote:
Section 1g, Article II, Ohio Constitution, provides that the Secretary of State “shall cause to be placed upon the ballots” any proposed laws or amendments to the Constitution which are presented by initiative petition. Although the ’* * * secretary of state necessarily will act in a quasi-judicial capacity in determining the sufficiency of the petition' (State, ex rel. Patton v. Myers (1933), 127 Ohio St. 95, 98, 186 N.E. 872, 873), the placing of the issues on the ballots is ministerial in nature and not quasi-judicial. The acts of the Secretary of State herein sought to be prohibited fall squarely within the definition of ‘ministerial act’ found in Black's Law Dictionary (4 Ed.).
The distinction between the initiative process and the referendum process, especially in the current situation in which the General Assembly has attempted to make the referendum a null act, is clearly significant, but the question remains as to whether a Secretary of State can stop the referendum process once the signatures have been certified. In a recent case dealing with an unrelated issue, Ohio Supreme Court Justice Lundberg Stratton discussed limits on executive authority, stating “It is well settled that once an executive power has been completely exercised, the authority of the executive to rescind the completed exercise of that power ceases.” While focused on the powers of the governor, the discussion also touched on the Secretary of State’s powers, distinguishing the Secretary’s ministerial authority from his or her quasi-judicial authority, and noting that the latter is limited. The constitutional language could be read to indicate that, once the signatures have been certified, the Secretary’s role is ministerial and requires the referendum to appear on the ballot.
A related question is whether the people have a right to express their view on the issue even if the vote would actually have no effect on the operations of law. Is a vote on a law that has been repealed by the General Assembly still the right to “adopt or reject any law” as guaranteed by the Constitution? While any subsequent General Assembly could pass a law reenacting every provision of HB 194, would the voter’s rejection of HB 194 give lawmakers important information not available without letting the referendum vote go forward? If the referendum “is designed to ‘give citizens a voice on questions of public policy,’” then limits on that right should be rare.
When is the people’s right to a referendum superior to the General Assembly’s power to enact and repeal laws?
If, once a referendum process is underway, the General Assembly can defeat the purpose of the referendum by reenacting the same language in subsequent legislation or by repealing the bill, what is the actual power of referendum? The Ohio Supreme Court recently wrote of the significance of the people’s referendum power as “’of paramount importance . . . , a means for direct political participation, amounting to a veto power, over enactments of representative bodies.’” Permitting the legislature to render that power ineffective by simply re-passing legislation or repealing the challenged bill seems to demote the referendum from its “paramount” status.
Other states have used a variety of approaches to the relationship between the people’s power to repeal legislation via a referendum and the legislature’s power to enact legislation. The Court of Appeals of Michigan held that the Michigan legislature was within its rights to reenact a law during the pendency of a referendum on that law. In its discussion, the Michigan court summarized some other states’ approaches to the issue:
For example, plaintiffs cite precedents from other states that allow further legislative activity with regard to an issue addressed by previous legislation that has become subject to a referendum, but only if the new legislation treats the issue in a “substantially different” manner, if the Legislature enacts the new legislation “in good faith” without the purpose of subverting the referendum process,13or if there is some “emergency” which necessitates the new legislation. See, e.g., In re Megnella, 133 Minn. 98, 99-100, 157 N.W. 991 (1916); Ex parte Stratham, 45 Cal.App. 436, 439-440, 187 P. 986 (1920). Ginsberg v. Kentucky Utilities Co., 260 Ky. 60, 67-69, 83 S.W.2d 497 (1935).
The Michigan court rejected these approaches, noting the “political quagmire” that could result from a court’s being required to evaluate whether a bill is substantially similar to another or is enacted in good faith, or whether an emergency truly exists.
In contrast to these cases allowing the legislature to reenact laws facing a referendum, the Missouri Supreme Court took a different line of reasoning, writing, “If, therefore, it be true that the Legislature may postpone the effective date of a law by an analogy of reasoning it must also follow that the operation of a statute may be deferred by the invocation of the referendum, for the exercise of legislative power by the people through the referendum is simply a reservation to themselves of a share of the legislature power.”
The current situation with HB 194 is further complicated by the fact that HB 224 was passed as an emergency bill and is thus not subject to the referendum. As noted above, some states permit the legislature to enact new legislation on the same matter during the pendency of a referendum if there is an “emergency.” Because the Ohio Constitution specifically allows for an emergency law exception to the right of referendum, it would seem that Ohio might permit new legislation on that basis. On the other hand, if such emergency legislation contains language that cannot be given effect absent the language of the bill that is stayed pending a referendum vote, then a referendum that repeals the original law might also nullify the emergency law.
The Ohio General Assembly generally has the power to enact, repeal, or amend any law. The question is whether there is a point at which that power collides with the people’s right to a referendum, and when those rights collide, which right prevails. Depending on what happens with HB 194 in the House of Representatives, we may start to learn the answer to these questions.
 Press Release, Lisa Griffin, Ohio Legislature Sends Landmark Election Reform Initiative to Governor (June 29, 2011) available at http://www.rotundacollection.com/ShowDocument.aspx?PressReleaseID=377.
 Press Release, House Democratic Caucus Communications, Dem Lawmakers Tell Secretary Husted Don’t Cut Off Early Voting (Oct. 15, 2011) (available at http://www.rotundacollection.com/ShowDocument.aspx?PressReleaseID=681).
 Letter, Secretary of State Jon Husted to Representatives (Oct. 14, 2011) (available at http://www.rotundacollection.com/ShowDocument.aspx?PressReleaseID=686).
 Ohio Rev. Code Ann. § 3501.05(K) (2007 & Supp. 2011).
 Id. at (I).
 Ohio Rev. Code Ann. § 3519.01(B)(3) (2007).
 Ohio Rev. Code Ann. § 3519.03(A) (2007).
 Ohio Rev. Code Ann. § 3505.061(A), (2007) OH Const. art. XVI, § 1.
 OH Const. art. II, § 1d.
 Ohio Rev. Code Ann. § 3519.08(A) (2007 & Supp. 2011).
 State ex rel. O'Grady v. Brown, 356 N.E.2d 296, 298 (Ohio 1976).
 State ex rel. Ohio Gen. Assembly v. Brunner, 872 N.E.2d 912, 926-27 (Ohio 2007) (Lundberg Stratton, J. concurring), amended on reconsideration, 873 N.E.2d 1232 (Ohio 2007).
 Id. at 929.
 State ex rel. LetOhioVote.org v. Brunner, 916 N.E.2d 462, 470 (Ohio 2009), quoting Eastlake v. Forest City Ents., Inc. (1976), 426 U.S. 668, 673, 96 S.Ct. 2358, 49 L.Ed.2d 132, quoting James v. Valtierra (1971), 402 U.S. 137, 141, 91 S.Ct. 1331, 28 L.Ed.2d 678.
 State ex rel. LetOhioVote.org v. Brunner, 916 N.E.2d 462, 470 (Ohio 2009).
 Reynolds v. Bureau of State Lottery, 610 N.W.2d 597, 599 (Mich. Ct. App. 2000), appeal denied in Reynolds v. Martin, 624 N.E.2d 195 (Mich. 2001).
 Id. at 606-07.
 Id. at 607.
 State ex rel. Barrett v. Dallmeyer, 245 S.W. 1066, 1068 (Mo. 1922).
 16 O. Jur. 3d Constitutional Law § 244 (2012).
Terri Enns has been part of the Election Law @ Moritz team since the beginning of the project. Prior to coming to Moritz to teach in the Legislation Clinic, Ms. Enns served as Legal Counsel to the Ohio Senate Minority Caucus, where she regularly delved into Ohio's statutory oversight of campaigns and elections, working with election law both as it was being created and as it was applied. Enns has provided input for a variety of panels focused on election issues, including Campaigning with Character for the Bowhay Institute for Legislative Leadership Development; Current Controversies in Election Law for a panel at Marshall University, and Don't be Disenfranchised: Know Your Voter Rights and Election Law at the Feminist Majority Foundation's Get Out Her Vote 2008: Ohio Summit. View Complete Profile