State ex rel. Ohioans for Secure & Fair Elections v. Larose
| Decision Date | 14 April 2020 |
| Docket Number | No. 2020-0327,2020-0327 |
| Parties | The STATE EX REL. OHIOANS FOR SECURE AND FAIR ELECTIONS et al. v. LAROSE, Secy., et al. |
| Court | Ohio Supreme Court |
ACLU of Ohio Foundation, Freda J. Levenson, and David J. Carey ; American Civil Liberties Union, Dale Ho, and Alora Thomas-Lundborg; McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo, Derek S. Clinger, and Ben F.C. Wallace, for relators.
Dave Yost, Attorney General, and Bridget C. Coontz and Brandi Laser Seskes, Assistant Attorneys General, for respondents.
{¶ 1} In this expedited election case, relators, Ohioans for Secure and Fair Elections and the individual petition-committee members1 (collectively, "Ohio-SAFE"), seek writs of mandamus against respondents, Secretary of State Frank LaRose, the Ohio Ballot Board ("the board" or "the ballot board"), and Attorney General Dave Yost. We grant writs of mandamus against the board and the secretary of state and we deny the requested writ against the attorney general. Ohio-SAFE also requests an extension of time in which to circulate petitions, which we deny.
{¶ 2} The Ohio Constitution reserves to the people the right to propose amendments to the Constitution by initiative petition. Ohio Constitution, Article II, Section 1. The process for proposing a constitutional amendment begins with the submission of a petition, signed by at least 1,000 Ohio electors, to the Ohio attorney general, along with a summary of the proposed amendment. R.C. 3519.01(A), paragraph two. Within ten days of receiving the petition, the attorney general must determine whether the summary is a fair and truthful summary of the proposed amendment. Id. If the summary is fair and truthful, the attorney general must certify that fact and then forward the petition to the ballot board. Id.
{¶ 3} The ballot board consists of the secretary of state, who serves as chairperson, and four appointed members, no more than two of whom may be of the same political party. R.C. 3505.061(A) and (D). Within ten days after receiving a petition from the attorney general under R.C. 3519.01, the board must examine it "to determine whether it contains only one proposed * * * constitutional amendment so as to enable the voters to vote on a proposal separately." R.C. 3505.062(A). If the board so determines, then the board will certify its approval to the attorney general, who will in turn file with the secretary of state a verified copy of the proposed amendment, along with the summary and the attorney general's certification. R.C. 3519.01(A) ; R.C. 3505.062(A). At that point, the petitioners may begin circulating petitions to gather the necessary signatures to qualify for the ballot.
{¶ 4} However, if the board determines that the initiative petition contains more than one proposed constitutional amendment, then the board shall "divide the initiative petition into individual petitions containing only one proposed * * * constitutional amendment so as to enable the voters to vote on each proposal separately." R.C. 3505.062(A), paragraph two. The petitioners must then submit separate summaries for each proposal to the attorney general for approval, R.C. 3519.01(A) or 3505.062(A), before they may begin circulating petitions.
{¶ 5} For the petitions to qualify for the ballot, the petitioners must file them with the secretary of state no later than 125 days before the general election. Ohio Constitution, Article II, Section 1a. This year, in order for petitions to qualify for the November general-election ballot, the petitioners must submit them on or before July 1, 2020. The petitions must contain valid signatures from at least 44 of Ohio's 88 counties, in an amount equal to at least 5 percent of the total votes cast in the last gubernatorial election in those 44 counties. See id. , Sections 1a, 1g. The signatures collected statewide must equal at least 10 percent of the total votes cast for governor in the last gubernatorial election. Id. , Section 1a ; see id. , Section 1g.
{¶ 6} On February 10, 2020, Ohio-SAFE submitted to Attorney General Yost an initiative petition and summary, titled the "Secure and Fair Elections Amendment," which would amend Article V, Section 1 of the Ohio Constitution. That section provides, in its entirety:
Every citizen of the United States, of the age of eighteen years, who has been a resident of the state, county, township, or ward, such time as may be provided by law, and has been registered to vote for thirty days, has the qualifications of an elector, and is entitled to vote at all elections. Any elector who fails to vote in at least one election during any period of four consecutive years shall cease to be an elector unless he again registers to vote.
{¶ 7} The proposed amendment would eliminate the 30-day registration requirement to be eligible to vote. In addition, the proposed amendment would guarantee the following rights to every U.S. citizen who is—or is eligible to become—an elector in Ohio:
In addition, the proposed amendment would require a "representative sample of statewide elections to be audited to ensure the accuracy and integrity of elections." The amendment provides that items 2 and 4 above will take effect on February 1, 2022.
{¶ 8} The petition submitted to Attorney General Yost contained the requisite 1,000 signatures. On February 20, Yost certified that the summary was a fair and truthful statement of the proposed constitutional amendment.
{¶ 9} The board met to consider the petition on March 2, 2020. Counsel for Ohio-SAFE addressed the board. He told the board that the various provisions of the Ohio-SAFE amendment have Speaking in opposition, an attorney for the Ohio Republican Party argued that the proposed amendment "comprised * * * several discrete amendments, most of which should be voted on a separate proposal, because there is not a sufficiently singular purpose to present all of these proposals to voters in a single ballot initiative."
{¶ 10} Following these presentations, Secretary of State LaRose made a motion for the board to find that the Ohio-SAFE amendment contained four separate proposals:
LaRose then made a motion for the board to divide the amendment into four separate proposals. The board approved the motion by a three-to-two vote. However, one of the members who voted against LaRose's proposal thought that the section of the proposed amendment relating to postelection audits did not reasonably relate to, and should be severed from, the rest.
{¶ 11} Ohio-SAFE filed a complaint for writs of mandamus in this court on March 5, 2020. We granted Ohio-SAFE's motion for an expedited briefing schedule.
A. Summary of the claims
{¶ 12} The complaint asks for three separate writs of mandamus. First, it seeks to compel the board to certify to the attorney general that the Ohio-SAFE petition contains only one proposed constitutional amendment. Second, to facilitate that process, the complaint requests a writ of mandamus compelling the secretary of state to convene a meeting of the board. Third, in the alternative, the complaint asks for a writ ordering the attorney general to file a verified copy of the proposed amendment, as written, along with the certified summary, with the secretary of state (essentially cutting the board out of the process).
B. Standard of review
{¶ 13} To be entitled to a writ of mandamus, a party must establish, by clear and convincing evidence, (1) a clear legal right to the requested relief, (2) a clear legal duty on the part of the respondent to provide it, and (3) the lack of an adequate remedy in the ordinary course of the law. State ex rel. Cleveland Right to Life v. State Controlling Bd. , 138 Ohio St.3d 57, 2013-Ohio-5632, 3 N.E.3d 185, ¶ 2.
{¶ 14} In extraordinary actions challenging the decisions of the secretary of state or county boards of elections, " ‘the standard is whether they engaged in fraud, corruption, or abuse of discretion, or acted in clear disregard of applicable legal provisions.’ " State ex rel. Owens v. Brunner , 125 Ohio St.3d 130, 2010-Ohio-1374, 926 N.E.2d 617, ¶ 26, quoting Whitman v. Hamilton Cty. Bd. of Elections , 97 Ohio St.3d 216, 2002-Ohio-5923, 778 N.E.2d 32, ¶ 11. This standard also applies when evaluating a ballot-board decision to divide a proposed constitutional amendment into separate ballot measures. State ex rel. Ohio Liberty Council v. Brunner , 125 Ohio St.3d 315, 2010-Ohio...
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