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Commentary

Tokaji's Testimony re Ohio's Initiated Constitutional Amendment Process

Thank you for allowing me to present testimony regarding this proposed constitutional amendment. I sympathize with the goals of Sub. H.J.R. 4 but, for the reasons stated more fully below, oppose the proposal in its present form. Its vague and ambiguous language is an invitation to judicial lawmaking and would do more harm than good if adopted.

By way of introduction, I am Charles W. Ebersold & Florence Whitcomb Ebersold Professor of Constitutional Law at The Ohio State University, Moritz College of Law. I am also a Senior Fellow with Election Law @ Moritz, a nonpartisan program devoted to providing accurate information, analysis, and commentary on election law and administration. My primary area of research and expertise is election law. I am co-author of the casebook Election Law: Cases and Materials (5th ed. 2012), author of the book Election Law in a Nutshell (2013), and former co-editor of Election Law Journal, the only peer-reviewed academic journal in the field. I have written numerous academic articles on various election law topics, including election administration, redistricting, and campaign finance. One of the courses I teach is Legislation, which includes statutory interpretation and ballot propositions. This testimony is solely on my own behalf and does not represent the views of any entities with which I am affiliated.

The current version of Sub H.J.R. 4 would amend the Ohio Constitution to prohibit initiative constitutional amendments that grant a “monopoly or a special interest, privilege, benefit, right, or license of a commercial economic nature….” I not only understand but also share the concern that motivates this initiative. There is a legitimate worry that powerful economic interests have too much influence on ballot measures. In particular, it is easy for those with substantial wealth to get a proposed initiative constitutional amendment on the ballot, in Ohio and in other states, although economic resources are not sufficient to ensure passage. There is also a reasonable concern, also one I share, with particular persons or groups being granted economic benefits from ballot measures that are disproportionate to the benefit that the general public would derive.

Notwithstanding my sympathy for the concern that motivates Sub. H.J.R. 4, I am concerned about the unintended consequences of its current language. Its wording is intolerably vague and poorly drafted, in my opinion. More specifically, the proposal’s loose and malleable language would confer enormous discretion on judges to invalidate ballot measures that differ from their with their own policy preferences, while upholding ones that accord with judicial preferences. Sub. H.J.R. 4 is therefore an invitation to judicial lawmaking that would overrule citizen-initiated democracy.

My greatest concern is with Sub. H.J.R. 4’s language regarding a “special interest, privilege, benefit, right, or license” in subsection 1e(B)(1). No definition for this term is provided. While the goal of this provision may be laudable, there is no universally or even commonly accepted definition of a “special interest.” One person’s special interest is another person’s public interest. The meaning and application of this provision will ultimately be decided by judges of our state supreme court, and there is no telling exactly how they will interpret such a vague, open-ended term.

What we can be certain of is that placing such a vague provision in our state constitution will multiply litigation over initiative constitutional amendments. The opponent of virtually every initiative will claim that it benefits a special interest at the expense of the public interest. We can also safely anticipate that this language will invite our judges to apply their own political or ideological values in determining which initiative constitutional amendments will stand and which will fall, supplanting the role that the people are supposed to play under direct democracy.

This concern is not merely hypothetical. It is instead based on research of scholars who have carefully studied judicial intervention in ballot measures. For example, a study by two prominent scholars of direct democracy examined state appellate court judges’ decisions in five states, involving more than 150 cases and 700 individual judges’ votes on single-subject rules. They found that judges were more likely to uphold initiatives if their partisan affiliation indicate that they would be sympathetic to the proposed initiative. John Matsuzaka & Richard L. Hasen, Aggressive Enforcement of the Single Subject Rule, 8 Election Law Journal 399 (2010).

Professors Matsuzaka and Hasen’s finding is directly applicable to the proposed subsection 1a(C) of Sub H.J.R. 4, which would constitutionalize the single-subject rule. But the “special interest, privilege, benefit, right, or license” language raises even graver concerns. That is because the definition of “special interest” (and the other terms that immediately follow it) is even less defined – and definable – than single-subject rules. We now have considerable precedent on what a single subject means, but we do not have any established precedent on the meaning of “special interest” or the like terms that follow. Accordingly, there is no constraint on judicial subjectivity. Sub. H.J.R. 4 will inevitably lead judges, consciously or not, to substitute their own policy preferences for the will of the people. We can expect that judges will strike down initiatives with which they personally disagree, even though they command majority support among the people of Ohio.

What is the proper response to the concern about certain groups earning a windfall from a particular constitutional amendment at the expense of the general public? This is a reasonable question, given the ease with which well-financed groups can qualify initiatives for the ballot. The answer is that we should trust the people to make the right judgment. We should also do our best to inform them if we believe that a ballot measure would disproportionately benefit a powerful economic interest. In other words, this is an area where the best answer to speech we don’t like is more speech. Those who are active in public discourse, especially elected public officials, have a responsibility to help educate the public about the undesirable effects of ballot measures.

The empirical research generally shows that, while it is relatively easy for wealthy groups to qualify a ballot measure, it is not so easy to pass one. Our citizens do a good job, better than most elite observers suppose, of sniffing out ballot measures that enrich the few at the expense of the many. See, e.g., John Matsuzaka, For the Many or the Few: The Initiative, Public Policy, and American Democracy (U. Chicago Press 2004). We would do well to trust the people to make policy judgments about the public interest, rather than foisting that responsibility on state judges.

I am aware that language has been added to the proposed constitutional amendment that, as I understand it, is designed to limit its application to commercial activities. While I agree that such a limitation is appropriate, the current language is carelessly written and therefore ill-tailored to accomplish this objective. To see why, I quote the full text of subsection 1e(B)(1), with the relevant language italicized:

The power of the initiative shall not be used to pass an amendment to this constitution that would grant or create a monopoly or a special interest, privilege, benefit, right, or license of a commercial economic nature to any person, partnership, association, corporation, organization, or other nonpublic entity, or any combination thereof, however organized, that is not available to other similarly situated persons, partnerships, associations, corporations, organizations, or other nonpublic entities at the time the amendment is scheduled to become effective.

Although I agree that the prohibition, if adopted at all, should be limited to activities “of a commercial economic nature,” the proposed language is not carefully drafted to achieve this limitation. Under the “last antecedent” canon on statutory interpretation, a modifying word or phrase is presumed to apply only to the last word which preceded it – in this case, the noun “license.” Accordingly, if this canon were followed by a court, the modifying term “of a commercial economic nature” would not apply to measures that “grant or create a monopoly or a special interest, privilege, benefit, [or] right.” Rather, the “commercial economic” limitation would apply only to measures that grant a “license.” It is likewise unclear whether the adjective “special” is meant to modify only the noun “interest” or, alternatively, to modify the nouns “privilege,” “benefit,” “right,” and “license” as well. I believe that the intent is the latter but, again, the language is not carefully drafted to accomplish this end.

Fortunately, the ambiguous application of these two modifiers can be repaired without much difficulty. The modifying term “of a commercial economic nature” could be added immediately after each of the nouns preceding it (i.e., “monopoly,” “interest,” “privilege,” “benefit,” “right,” and “license”). In addition, the adjective “special” should be added immediately before each of the nouns it is intended to modify. For purposes of clarity, each of the full terms (e.g., “special privilege of a commercial economic nature”) should appear on a separate line preceded by a parenthetical letter (i.e., (a), (b), (c), (d), (e) and (f)). I hope this description is understandable, but if you would like further clarification, please let me know and I would be happy to assist your staff in drafting alternative language.

So there is no confusion, this suggested modification to the existing language would not fully resolve my concerns about Sub. H.J.R. 4. Even if limited to commercial economic activity, the references to “special interest,” “special benefit,” and the like are still too vague for adoption, in my opinion, opening the door to judges giving effect to their personal, political, and ideological predilections. While the above-mentioned modification would improve the proposal slightly, Sub. H.J.R. 4 would still remain too vague, and thus an invitation to judicial subjectivity.

Finally, there is a problem with subsection 1e(B)(4) of this proposal, which provides in pertinent part:

If, at the general election held on November 3, 2015, the electors approve a proposed constitutional amendment that violates or is inconsistent with division (B)(1) of this section … then notwithstanding any severability provision to the contrary, that entire proposed constitutional amendment shall not take effect.

This provision is invalid and therefore would be inoperative if the measure becomes law. That is because the current Article II, Section 1b of the Ohio Constitution provides:

If … conflicting proposed amendments to the constitution shall be approved at the same election by a majority of the total number of votes cast for and against the same, the one receiving the highest number of affirmative votes …. shall be the amendment to the constitution.

To see why the proposed language from Sub. H.J.R. 4 is unenforceable, suppose that the November 3, 2015 ballot includes a citizen initiative that would amend the constitution in a way that “violates or is inconsistent” with Sub. H.J.R. 4. Suppose further that both the citizen initiative and Sub. H.J.R. 4 are approved by a majority of voters. By definition, those two constitutional amendments would be “conflicting” under current section 1b, because they are inconsistent with each other. Accordingly, only the constitutional amendment receiving the greater number votes would be operative. If the citizen initiative received more votes than Sub. H.J.R. 4, then Sub H.J.R. 4 – at least its provision purporting to nullify conflicting constitutional amendments – could not be given effect. At this time, I have no position on whether the remainder of Sub. H.J.R. 4 could still take effect. The irony is that the provision of Sub. H.J.R. 4 purporting to nullify conflicting initiative constitutional amendments is itself null, and could potentially have the effect of nullifying other parts of Sub. H.J.R. 4.

For all these reasons, I oppose Sub. H.J.R. 4 in its current form. Thank you for considering my views on this important subject.

Dan Tokaji is an authority on election law and voting rights. He specializes in election reform, including such topics as voting technology, voter ID, provisional voting, and other subjects addressed by the Help America Vote Act of 2002. He also studies issues of fair representation, including redistricting and the Voting Rights Act of 1965. View Complete Profile

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