The Constitutionality of Removing an Initiative from the Ballot:  Ohio's Tax and Expenditure Limitation Initiative

By Kathleen Clyde, Moritz College of Law, Class of 2008.  Edited by Terri Enns, Senior Fellow.

I. Background

On May 23, 2006, the Ohio Legislature passed and the Governor signed into law HB 312 which enables a petition committee for a ballot initiative to withdraw the initiative from the ballot.  William Hershey, Deal Drops Spending Proposal From Ballot, Dayton Daily News, June 8, 2006, at A10.  This legislation arose out of an agreement within the Ohio Republican Party that 2006 Republican gubernatorial candidate and current Secretary of State J. Kenneth Blackwell would ask the petition committee for the Tax and Expenditure Limitation (TEL) Amendment to withdraw the amendment from the ballot in exchange for the passage of a less-restrictive TEL-like bill in the Republican-controlled state legislature.  Jim Siegel, Revised TEL Plan Rushed Through; Debate Heats Up as Lawmakers Agree to Kill Blackwell Initiative, Columbus Dispatch, May 24, 2006, at 1A (hereinafter “Columbus Dispatch, May 24, 2006”).  Secretary of State Blackwell serves as the honorary chairman of the committee proposing TEL.  Associated Press, GOP Kills Key Blackwell Plank, Akron Beacon Journal, May 24, 2006, at B5.  Support of the TEL Amendment was a central component of Secretary of State Blackwell’s primary campaign, but was increasingly believed to be a liability for his and other Republican candidacies statewide.  Columbus Dispatch, May 24, 2006.

More than 323,000 Ohioans signed petitions proposing that TEL be submitted directly to Ohio voters.  Laura A. Bischoff, Bid to Pull TEL Off Ballot Debated, Dayton Daily News, May 20, 2006, at A1 (states that 323,000 valid signatures were collected); Editorial, Blackwell’s Sellout on TEL, Toledo Blade, May 19, 2006 (states that 328,000 valid signatures were collected).  These petitions were certified by Secretary of State Blackwell’s office for the November 2006 election.  Jim Provence, GOP Wants Out of Tax Issue Without Hurting Blackwell, Toledo Blade, May 6, 2006.  HB 312 now authorizes TEL’s petition committee to withdraw the initiative from the ballot.  H.B. 312, 126th Leg., (Ohio 2006).

This article will discuss the constitutionality of the state legislature’s new law authorizing the removal from the ballot of a constitutional amendment proposed by the people.   

II.  Ohio Constitutional Law 

Article II Section 1a reserves for the people the power of the ballot initiative, requiring signatures of ten percent of the electorate “upon a petition to propose an amendment to the constitution.” The number of electors is based on the total number of votes cast for the office of governor in the most recent election.  ORC § 3519.22.  When valid petitions are filed proposing a constitutional amendment, “the secretary of state shall submit for the approval or rejection of the electors, the proposed amendment ... at the next succeeding regular or general election in any year occurring subsequent to ninety days after the filing of such petition.”  Ohio Const. art. II, § 1a.  Petitions are valid if they meet various formatting requirements and contain the correct number and type of signatures.   Ohio Const. art. II, § 1g.  Further description of the Secretary of State’s duties uses similar language: “The secretary of state shall cause to be placed on the ballots, the ballot language for any such . . . proposed amendment to the Constitution.”  Id.

Article II Section 1 concludes with the statement that, “The foregoing provisions of this section shall be self-executing, except as herein otherwise provided. Laws may be passed to facilitate their operation, but in no way limiting or restricting either such provisions or the powers herein reserved.”  Id.

III. Existing Ohio Statutory Law

Relevant statutory provisions include Ohio Revised Code § 3519.02, § 3519.03, and § 3519.16.  Section 3519.02 establishes the petition committee for a ballot initiative.  According to the statute, “The petitioners shall designate in any initiative . . . a committee of not less than three nor more than five of their number who shall represent them in all matters relating to such petitions. . .[N]otice of all matters or proceedings pertaining to such petitions may be served on said committee.”  ORC § 3519.02.  According to ORC § 3519.03, this committee prepares arguments for and/or the explanation of the bill required by the Constitution.  If the petitions “are sufficient, then such amendment . . . shall be placed on the ballot as required by law.”  ORC § 3519.16.

IV. HB 312

HB 312 enables a majority of the members of the initiative petition committee established by § 3519.02 to “withdraw the petition by giving written notice of the withdrawal to the secretary of state.”  H.B. 312, 126th Leg., (Ohio 2006).  This written notice must be provided at least sixty days before the election.  After the Secretary receives this notice, the ballot board “shall not” certify ballot language, the Secretary of State “shall not” certify a ballot form or wording to the county boards of election, and the proposed initiative “shall not appear on the ballot.”  Id.  The bill shall apply to “any statewide initiative or referendum petition for which the Secretary of State has not yet certified a ballot form or wording to the boards of elections regardless of when [the initiative] was filed with the Secretary of State and regardless of whether the [initiative] has been verified by the Secretary of State.”  Id.

V. Analysis

The constitutionality of HB 312 likely depends on the interpretation of Article II Sections 1a and 1g.  First, whether the Section 1a requirement that the Secretary of State “shall submit” a proposed constitutional amendment to voters once the appropriate number of valid signature are filed is mandatory could determine HB 312’s constitutionality, at least as it applies to TEL.  Second, whether HB 312 “facilitates” or “inhibits” the operation of Section 1 could determining HB 312’s constitutionality because laws passed by the General Assembly that facilitate are constitutional, while laws that limit or restrict are not.

 A.  Compliance with Article II Section 1a: “The Secretary of State shall submit”

According to the Ohio Supreme Court, when proper petitions are submitted to the Secretary of State proposing a constitutional amendment, it is a mandatory requirement that the Secretary of State submit the proposed amendment to the voters, even if the proposed amendment may violate the federal constitution.  State ex rel. Marcolin v. Smith, 138 N.E. 881 (Ohio 1922).  Further, “no officer or tribunal may interfere either with the enactment of laws or the amendment of the Constitution while the same is in process.”  Id. at 881.  The dissent in Marcolin focused on the majority’s act of “defiance to federal sovereignty,” stating that “the people of Ohio may write what they please in their state Constitution so long as it does not transgress the basic law of the Union.”  Id.  at 897.  However, absent the federal sovereignty concern, even the sole judge in dissent agrees that “section 1a is mandatory.”  Id. at 894.

Another early Ohio Supreme Court case held that when proper petitions are submitted to the Secretary of State proposing a constitutional amendment, he or she is required to submit that exact proposal to the electors.  State ex. rel. Greenlund v. Fulton, 124 N.E. 172 (Ohio 1919).  A writ of mandamus to compel the Secretary of State to publish a constitutional amendment passed by the electors was denied by the court because the Secretary of State changed the ballot language from that provided on the petitions.  Petitioners had requested that the ballot language be enacted rather than the petition language.  According to the Ohio Supreme Court, the proposed amendment contained on the initiative petition “is the proposed amendment which the Constitution requires to be submitted.”  Id. at 187.  The dissenter in Greenlund stated that an unintentional mistake should not “be permitted to obstruct the administration of justice or to defeat the will of the electors of this state.”  Id. at 219.

Interpreting Article II Section 1b of the Ohio Constitution, the Tenth District Court of Appeals held that “there is an absolute duty of the Secretary of State to certify the petition to the General Assembly” once the appropriate number of valid signatures are filed.  Durell v. Brown, 279 N.E. 2d (Ohio Ct. App. 10th Dist. 1971).  Article II Section 1b, a provision which empowers the people to propose a law to the General Assembly for passage or referendum, uses identical language as Section 1a: that the Secretary of State “shall submit” the proposed law after the appropriate number of valid signatures are filed.  Although Section 1b refers to submission to the General Assembly rather than to the electors as in Section 1a, courts may interpret the neighboring sections similarly. 

Several legal scholars have agreed that the crucial part of the answer to this constitutional question is whether “shall,” as in the Secretary of State “shall submit” the proposed amendment to the electors, means “must.”  The above case law supports the answer that shall means must, and the action by the people of submitting the correct number of valid signatures automatically triggers the action of the Secretary of State.  In the case of TEL, over 300,000 signatures were submitted and certified, which should the automatically trigger Secretary of State Blackwell’s submission of the proposed amendment to the electors. 

An argument made against requiring that the TEL appear on the ballot is that a vote would be a waste of time considering the amendment’s growing criticism.  But like the constitutionality of a proposed amendment discussed in Marcolin was for the courts to decide once the amendment was voted on by the people, the criticism of TEL is for the people to decide on Election Day.  Even the dissenters in these cases find that the exceptions to the Secretary of State’s absolute duty are very limited, and the power of the people is the most important consideration.  The Secretary of State likely has no constitutional authority to refuse to submit a proposed amendment once the appropriate number of valid signatures are submitted.

 

B.  Compliance with Article II Section 1g: Laws must facilitate rather than inhibit

According to the Supreme Court of Ohio, the duty of the Secretary of State to publish arguments for and against a proposed constitutional amendment, as laid out in Section 1g, is absolute.  State ex. rel. Hunt v. Hildebrant, 112 N.E. 138 (Ohio 1915).  This decision was based on Section 1g’s language itself (“the Secretary of State shall. . .”) and also the Supreme Court’s interpretation of Section 1g’s “self-executing” provision.  In Hunt, it was contended that the Constitution did not provide any method for the Secretary of State to decide who could file arguments for and against the constitutional provision, therefore it is untrue that 1g is self-executing.  The Ohio Supreme Court responded to this argument by writing “this contention overlooks the fact that the Constitution expressly provides that this provision shall be self-executing in all cases, and it also overlooks the further fact that when the Constitution commands an officer of the state to do a particular thing, the mere omission to point out in detail the manner and method of doing it does not excuse the officer from performing the duty enjoined on him by the supreme law of the land.”  Id. at 140. 

In fact, members of the constitutional convention “undoubtedly had in mind the practical impossibility of covering every detail of the operation of the provisions of the organic law of the state; that some difficulties might arise in relation thereto that could be obviated by laws that would facilitate, but not restrict, their application, and for that reason and to this extent, but no further, the General Assembly is authorized to act.”  Id. at 140.  The self-executing provision is clearly “a limitation upon the power of the General Assembly.”  Id. at 140.

However, the Ohio Supreme Court also stated that the self-executing provision “expressly confers upon the General Assembly the power to make laws to govern all matters which are not governed by the constitutional provisions” when it held that the Secretary of State cannot stand in the way of a statute empowering local Boards of Elections to certify petitions.  State ex. rel. McCrehen v. Brown, 141 N.E. 69, 70 (Ohio 1923).  This holding is perhaps consistent with the statements of HB 312 supporters that the General Assembly can pass a law about removal of a proposed constitutional amendment from the ballot because the Ohio Constitution does not specifically address removal. 

The Ohio Supreme Court also held that, regardless of an inconsistency between the language in an amendment summary submitted to the Attorney General for approval and the language on the petition signed by electors, the Secretary of State has a duty to put the amendment on the ballot using the language from the petitions.  State ex. rel. Schwartz v. Brown, 288 N.E.2d 821 (Ohio 1972).  This duty is imposed by Article II of the Ohio Constitution.  “Although the proposal might have been considered to be that of the ‘committee,’ provided for in R.C. s 3519.02 until such time as an initiative petition containing its full text has been signed by at least ten percentum of the electors, thereafter, under Article II, it becomes the proposal of the electors signing such petition.”  Id. at 825.  This is consistent with legal scholars who have questioned the equity of HB 312’s granting three to five people representation of over 300,000 petition signers.  However, HB 312 supporters say that petition signers gave implied authority to the petition committee. 

According to the New Oxford American Dictionary, 2nd edition, “facilitate” means “to make an action or process easier” while “inhibit” means “to hinder, restrain, or prevent an action or process.”  On its face, it seems clear that law that enables the petition committee to remove a proposed amendment that was already certified from the ballot inhibits the initiative process rather than facilitates it.  Both Hunt and McCrehen discuss what should happen when the Constitution does not specifically address a topic.  Both give leeway to either the Secretary of State or General Assembly in addressing those gaps, but neither goes as far as methods for removal of the initiative.  Finally, in Schwartz, the Ohio Supreme Court specifically said the power of the petition committee is limited.    It seems unlikely that they would find HB 312, which authorizes the committee to withdraw the proposed amendment despite the signatures of 300,000 Ohioans, to be constitutional because it facilitates the ballot initiative process.

 

VI. Conclusion

Because it contradicts the mandatory “shall” language of the Ohio constitution, and because it inhibits the initiative process, it seems likely a court will strike down HB 312 when and if its constitutionality is challenged.  The constitution orders the Secretary to submit a proper initiative to the voters, but HB 312 tries to provide a mechanism to do the exact opposite.  Furthermore, the constitution does not permit any procedure that inhibits the self-executing nature of the initiative process, yet that is exactly what HB 312 does by allowing the sponsoring petition committee to essentially end the initiative process when it so desires—even after certification.  For these reasons, HB 312 almost invites a constitutional challenge.