State ex rel. First v. Ohio Ballot Bd.

Decision Date12 September 2012
Docket NumberNo. 2012–1443.,2012–1443.
Citation978 N.E.2d 119,133 Ohio St.3d 257
PartiesThe STATE ex rel. VOTERS FIRST et al. v. OHIO BALLOT BOARD et al.
CourtOhio Supreme Court

OPINION TEXT STARTS HERE

McTigue & McGinnis, L.L.C., Donald J. McTigue, Mark A. McGinnis, Columbus, and J. Corey Colombo, for relators.

Michael DeWine, Attorney General, and Richard N. Coglianese, Sarah E. Pierce, and Michael J. Schuler, Assistant Attorneys General, for respondents.

PER CURIAM.

[Ohio St.3d 257]{¶ 1} This is an original action pursuant to the Ohio Constitution, Article XVI, Section 1 for a writ of mandamus compelling respondent Ohio Ballot Board, which includes respondent Secretary of State Jon Husted, to reconvene forthwith to replace ballot language previously adopted with ballot language that properly describes the proposed constitutional amendment. Because relators have established their entitlement to the requested extraordinary relief, we grant the writ.

[Ohio St.3d 258]Facts

Relators' Proposed Amendment

{¶ 2} Relator Voters First is an unincorporated association of individuals responsible for the supervision, management, and organization of the signature-gathering effort to certify a proposed constitutional amendment to the November 6, 2012 general-election ballot and to support its passage by electors. The remaining relators are Ohio resident-electors who comprise the committee designated to represent the petitioners of the proposed amendment pursuant to R.C. 3519.02.

{¶ 3} The proposed amendment would amend the Ohio Constitution, Article XI, Sections 1, 3, 4, 6, 7, 9, 10, and 13, repeal Article XI, Sections 8 and 14, and adopt Article XI, Section 16, to set forth new constitutional standards and requirements to establish federal congressional and state legislative district lines for Ohio. The proposed amendment would establish the Ohio Citizens Independent Redistricting Commission, consisting of 12 members, to be chosen as follows. First, eligible persons would apply to the secretary of state for membership on the commission. Proposed Article XI, Section 1(C)(4). The chief justice of the Supreme Court would select by lot a panel of eight court of appeals judges, no more than four of whom may be of the same political party. Proposed Article XI, Section 1(C)(3). The panel would choose 42 persons from the applicants eligible for membership on the commission, consisting of three different 14–person pools, two from each of the two largest political parties and one from neither party. Proposed Article XI, Section 1(C)(5). The speaker of the Ohio House of Representatives and the highest ranking member of the house who is not of the same political party as the speaker would then be permitted to eliminate up to three persons from each of the three pools before the panel of judges selects nine commission members by lot. Proposed Article XI, Sections 1(C)(6) and (7). These nine members will then select from the remaining pool three more members for a total of 12. Proposed Article XI, Section 1(C)(7).

{¶ 4} In addition, the General Assembly is required to “make appropriations necessary to adequately fund the activities of the Commission including, but not limited to, funds to compensate Commission members; pay for necessary staff, office space, experts, legal counsel and the independent auditor; and purchase necessary supplies and equipment.” Proposed Article XI, Section 1(D).

{¶ 5} Further, the proposed amendment provides that the commission's meetings shall be open to the public, that its records, communications, and draft plans are generally public records, and that the commission shall provide a reasonable opportunity for the public to submit proposed redistricting plans for the commission's consideration. Proposed Article XI, Sections 1(E), (F), and (H).

[Ohio St.3d 259]{¶ 6} The commission shall establish the new legislative district boundaries by October 1 of the year before elections are to be held in the new districts. If the commission fails to act by that date, an action may be initiated in the Supreme Court of Ohio to adopt district boundaries, and this court shall select from the plans submitted to or considered by the commission and adopt the plan that most closely meets the applicable requirements. Proposed Article XI, Section 1(K).

{¶ 7} If the proposed amendment is approved by the electorate, the commission will establish new district boundaries for Ohio's state legislative and federal congressional districts. Those new boundaries will be used in the next regularly scheduled state and federal elections held more than a year after the adoption of the amendment. These boundaries, or the ones selected by this court, shall not be changed until the ensuing federal decennial census unless declared invalid by this court or a federal court. Proposed Article XI, Section 6.

{¶ 8} Under the proposed constitutional amendment, the commission shall adopt the redistricting plan that, in its judgment, most closely meets the specified factors of community preservation, competitiveness, representational fairness, and compactness, without violating applicable state and federal constitutional provisions, federal statutory provisions, and the requirement that each district shall be composed of contiguous territory. Proposed Article XI, Section 7(A), (B), and (C). In addition, the commission must consider and make publicly available with each proposed redistricting plan a report that identifies for each district the boundaries, population, racial and ethnic composition, compactness measure, governmental units that are divided, and political party indexes. Proposed Article XI, Section 7(D). No plan shall be drawn or adopted with the intent to favor or disfavor a political party, incumbent, or potential candidate. Proposed Article XI, Section 7(E). The legislative districts cannot contain a population less than 98 percent or greater than 102 percent of the ratio of representation. Proposed Article XI, Sections 3 and 4.

{¶ 9} Finally, the proposed amendment vests exclusive, original jurisdiction in the Supreme Court of Ohio in all cases arising under Article XI, requires the commission to establish new boundaries should any districts be determined to be invalid either by this court or a federal court, and, when necessary, requires courts to establish district boundaries by selecting the plan that most closely meets the pertinent requirements among the plans submitted to and considered by the commission. Proposed Article XI, Section 13(A), (B), and (C).

Respondents' Actions on Relators' Proposed Constitutional Amendment

{¶ 10} On August 6, 2012, respondent Secretary of State Husted certified that relators' petition proposing the amendment contained sufficient valid signatures to satisfy the requirements of Article II, Sections 1a and 1g of the Ohio Constitution and stated that the proposed amendment would be submitted to the [Ohio St.3d 260]electors of the state for their approval or rejection at the November 6, 2012 general election. The secretary later announced that a meeting of respondent Ohio Ballot Board would be held to consider and certify ballot language for the proposed amendment.

{¶ 11} On August 15, the ballot board met to certify ballot language for the proposed amendment. Relators and Protect Your Vote Ohio, a committee organized to oppose the proposed amendment, appeared and offered competing versions of proposed ballot language. The secretary of state's staff also submitted its version of proposed ballot language. Protect Your Vote Ohio ultimately withdrew its proposal and supported the secretary's proposed ballot language, with additional suggested language, including a statement that the proposed amendment would change the standards and requirements for drawing state legislative and federal congressional districts. During the meeting, the secretary of state stated that he “would have liked to have placed the entire text as it was written by the proponents on the ballot,”but he did not do so because “it would have doubled the cost for someone to send a mail-in ballot back and it would have doubled the cost of sending the initial ballot out to the voter.” Instead, the secretary asked his staff to draft “summary language that was brief and would do the best job possible of neutrally or generically describing the issue.”

{¶ 12} After a couple of modifications, including adding Protect Your Vote Ohio's suggested statement that the proposed amendment would [c]hange the standards and requirements in the Constitution for drawing legislative and congressional districts,” the board voted 3 to 2 to adopt language prepared by the secretary of state's staff.

{¶ 13} The board's approved ballot language provides:

Issue 2

[TITLE HERE]

Proposed Constitutional Amendment

Proposed by Initiative Petition

To add and repeal language in Sections 1, 3, 4, 6, 7, 9 and 13

of Article XI,

repeal Sections 8 and 14 of Article XI, and add a new Section 16 to Article XI of the Constitution of the State of Ohio

[Ohio St.3d 261]A majority yes vote is necessary for the amendment to pass.

The proposed amendment would:

1. Remove the authority of elected representatives and grant new authority to appointed officials to establish congressional and state legislative district lines.

2. Create a state funded commission of appointed officials from a limited pool of applicants to replace the aforementioned. The Commission will consist of 12 members as follows: four affiliated with the largest political party, four affiliated with the second largest political party and four not affiliated with either of the two largest political parties. Affirmative votes of 7 of 12 members are needed to select a plan.

3. Require new legislative and congressional districts be immediately established by the Commission to replace the most recent districts adopted by elected representatives, which districts shall not be challenged except by court order until the next federal...

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