Ohio

The Issue of Issue 2

Election Law Society · January 9, 2023 ·

By Anna Rhoads

In 2019, the village of Yellow Springs, Ohio, voted to make a small change. That year, Yellow Springs’ 3,800 residents voted on a referendum to allow the tiny minority of the village’s 170 foreign-born residents who were still noncitizens to vote for local offices. The referendum passed with fifty-nine percent of the vote, setting off a chain reaction resulting in a new initiative to amend the state constitution that Ohioans will see on the ballot this November.

Largely in response to the Yellow Springs referendum and its success, Republican Representatives Jay Edwards and Bill Seitz sponsored H.J.R. 4, a joint resolution to amend Section 1 of Article V, Section III of Article X, and Section III of Article XVIII of Ohio’s constitution. Sponsors introduced the joint resolution on May 17th, and by the end of the month, it passed in the House and came to the Ohio Senate as S.J.R. 6. By June, the joint resolution passed in the Senate, too, becoming ballot initiative Issue 2. Issue 2’s certified ballot language describes the measure as amending the state constitution “to prohibit local government from allowing non-electors to vote.” In practical terms, these amendments would prevent local governments from allowing noncitizens who are legal permanent residents in Ohio to vote in local elections.

Issue 2’s proponents include Republican lawmakers. The initiative’s supporters argue that the proposed amendments would proactively ensure the clarity of election law in Ohio. Supporters see the initiative as a preventative measure that would avoid policies that have passed in cities in Left-leaning states, like in New York where recent measures allowed noncitizen legal permanent residents to vote locally. They contend that although Ohio and federal law prevent noncitizens from voting, there is a risk that localities will be able to allow noncitizens to vote locally, using the state constitution’s “home rule,” which gives localities ultimate control over local affairs. Supporters, including Ohio Secretary of State Frank LaRose, note that letting noncitizens vote locally could increase administrative burdens. More fundamentally, the initiative’s proponents view American elections as solely for American citizens and believe that allowing noncitizen residents to participate even locally would undermine fundamental American values.

However, Issue 2’s opponents, including the Ohio ACLU, Yellow Springs officials, Ohio’s Democratic lawmakers, and the Ohio Environmental Council Action Fund, take issue with the initiative for several reasons. Issue 2’s opponents note that federal and Ohio law already make citizenship a prerequisite to being eligible to vote and that home rule does not give localities carte blanche to draft laws in conflict with federal and Ohio law. In fact, although Yellow Springs voted to allow noncitizens to vote in local elections, citing home rule as allowing them to make this change, no noncitizens have voted in Yellow Springs (or any other Ohio locality, for that matter) because Secretary LaRose “ordered officials to table the measure.” Secretary LaRose has sent criminal referrals to noncitizens who have allegedly registered to vote, and noncitizens who fail to cancel their registration after a second notice can face felony charges. As such, opponents argue that the initiative is unnecessary and does not serve the prophylactic purposes Republican lawmakers claim. Opponents argue that instead, Republican lawmakers are using the initiative to signal to “Replacement Theory” and “Big Lie” adherents that their violently xenophobic views have merit. As such, opponents view the initiative as a purely political move that “can only add fuel to the wave of fanatical xenophobia.” Opponents argue that this political move is also designed to gin up a wave of Republican voter turnout in November when a United States Senate seat, all five statewide offices, the General Assembly, and control of the Ohio Supreme Court will be up for grabs. Additionally, Issue 2’s opponents say that the initiative’s amendments will change the state constitution’s provisions from a grant of voting rights to a restriction on voting rights. Thus, the initiative stealthily threatens the General Assembly’s power to liberalize voter registration requirements by permitting those who have registered less than thirty days before an election to vote as well as current laws allowing seventeen-year-olds to vote in primaries if they will be eighteen by the general election.

Changing Ohio’s voting laws has been a project of Ohio’s Republican lawmakers since 2020, and Issue 2 continues this trend. However, with measures to allow noncitizen residents to vote locally proving popular in other statesand some of Ohio’s cities, Republicans may need more than a Red wave in November to pass this initiative.

So What if the Ohio Supreme Court Found the Ohio Congressional-District Plan Unconstitutional?

Election Law Society · October 14, 2022 ·

By Darian Kanouff

On July 19, 2022, the Supreme Court of Ohio ruled (in a 4-3 split) that a remedial congressional-district plan, adopted on March 2, 2022, violated Article XIX, Section 1(C)(3)(a) of the Ohio Constitution. This decision follows the court’s previous finding that the originally adopted congressional-district plan was also unconstitutional. Despite this ruling, a new plan has not been created, seemingly also in violation of the Ohio Constitution.

The General Assembly passed the first congressional-district plan in November 2021. The Supreme Court of Ohio held on January 14, 2022, that the plan violated the state constitution’s provisions that a redistricting plan may not “unduly favor[] or disfavor[] a political party or its incumbents” or “unduly split governmental units,” since the plan “unduly favored the Republican Party and disfavored the Democratic Party” and “unduly split Hamilton, Cuyahoga, and Summit Counties.” Under this plan, despite receiving merely 53% of the popular vote in recent elections, Republicans were likely to win 80% of the seats (12 out of 15). The court ordered, pursuant to the Ohio Constitution, that the General Assembly pass a new constitutionally-compliant plan within thirty days, and if the legislative body failed to do so, that the Ohio Redistricting Commission pass a plan within thirty days of the General Assembly’s failure. Because the General Assembly failed to pass a plan within 30 days, the responsibility fell to the Ohio Redistricting Commission, which passed the second congressional-district plan on March 2.

The Supreme Court of Ohio held that the March 2 plan also violated Article XIX, Section 1(C)(3)(a) of the Ohio Constitution (i.e. that the plan “unduly favored the Republican Party and disfavored the Democratic Party”). Specifically, the court found that the petitioners proved the constitutional violation “beyond a reasonable doubt” through comparative analyses and other metrics that demonstrated that the plan “packed” and “cracked” Democratic voters, turning “districts that would otherwise be strongly Democratic-leaning [into] competitive or Republican-leaning districts.” The court found that the “best-case scenario” under the March 2 plan would result in the Democratic party winning 4 of the 15 seats (27% of the seats), noting that the plan is “only slightly less favorable to the Republican Party . . . than the original plan.” The court ordered the same remedy as before, pursuant to the Ohio Constitution: that the General Assembly pass a constitutionally-compliant plan within thirty days, and if it does not, that the Ohio Redistricting Commission pass a constitutionally-compliant plan within thirty days of the General Assembly’s failure.

Thirty days after the court’s order on July 19, the General Assembly had not created a new plan; this time, however, the Ohio Redistricting Commission did not take up the task. Why not? The Ohio House Speaker, a former Ohio Supreme Court Justice, Bob Cupp, believes that the General Assembly has actually not missed its court-imposed deadline. He claims that because “congressional redistricting includes elements of U.S. Constitutional and federal law,” the legislative leaders have the option of appealing the state court’s decision to the Supreme Court of the United States. The Rules of the Supreme Court of the United States provide that an appeal to the Supreme Court of the United States must be filed within ninety days of a state high court’s final judgment and the Ohio Constitution provides that the thirty day clock for redistricting begins on the last day on which an appeal could have been filed. Thus, he argues that the General Assembly has thirty days to create a new map beginning on October 17 (the purported deadline for appealing the case to SCOTUS). The legal director for the ACLU of Ohio, Freda Levenson, disagrees that the case is appealable to the Supreme Court of the United States. She asserts that “[b]ecause the [Supreme Court of Ohio]’s order to draw a new map ruled purely on matters of Ohio law, it is not appealable in federal court.”

While no action has been filed challenging the General Assembly’s and the Ohio Redistricting Commission’s failure to adopt a new plan within thirty and sixty days, respectively, all eyes are on the General Assembly as the supposed October 17 deadline approaches for the Ohio legislative leaders to appeal their case to the Supreme Court of the United States.

Voting rights groups and other organizations are distressed by the Republican Party’s supposed usurpation of the redistricting process, as it is in direct contrast with the Ohioans’ demonstrated preference for limiting partisan gerrymandering (more than 70% of Ohio voters voted to approve the 2018 amendment containing the constitutional provisions at issue here). However, because the Ohio Constitution’s only remedy for such violations is voiding the unconstitutional plan and requiring the General Assembly or Commission to create a new one, the Republican party had the option to “run down the clock,” resulting in the unconstitutional March 2 plan being used in the May primaries and the upcoming November election. “Running down the clock” could have another potential benefit to the Republican party: the executive director for the League of Women Voters of Ohio, Jen Miller, thinks the Republican party may be elongating this process to wait and see if the state supreme court justices elected this November will be more sympathetic to the party’s positions on line drawing.

Those disappointed in what has happened are considering further amendment to the state constitution. Among the considerations are an independent redistricting commission (as opposed to the current partisan commission, which consists of the Governor, the Auditor, the Secretary of State, and individuals appointed by the majority and minority leaders of the state legislature) or stronger checks and balances among the government branches. However, such bolstered amendments may not achieve what their proponents hope for if the independent state legislature theory (a theory which purports that all parts of the election process, including redistricting, fall solely under the purview of the state legislature, and are not subject to interference from the other branches) is adopted by the Supreme Court of the United States this term in Moore v. Harper.

Ohio: Will Redistricting Remove Its “Swing State” Status?

Election Law Society · March 4, 2022 ·

By: Jayde Morgan

With the exception of the last few years, Ohio had always seemed to fall firmly into the category of a “swing-state.” In 2016, it was seen as a vital state for either candidate to claim victory over. However, since 2016, Ohio has come to be seen as a firmly Republican-held state. Some have gone so far as to claim that Ohio should no longer be on the roster of states that Presidential candidates should visit and attempt to win. This is a marked change from 2012 when former President Barack Obama won 50.1% of the vote and United States Senator Sherrod Brown won 50.3% of the vote.

At that time, the Ohio government was divided with a Republican governor, one Republican Senator, one Democratic senator, a Republican House of Representatives, a Republican State Senate and State House of Representatives, but ultimately voted for Democrat, Barack Obama in the presidential election. Comparatively, Republican President Donald Trump received 53.3% of the votes in the 2020 election and Republicans gained a supermajority in the House of Representatives.

With Ohio becoming a staunchly conservative state, it seems inevitable that redistricting would reflect this trend. The Brennan Center recently filed a lawsuit to force the Ohio Redistricting Commission to redraw maps that they claim are “a master class in how to achieve a one-party state” or, in other words, the result of an effort to further solidify the Republican supermajority in the once “purple” state. The lawsuit was filed on Monday, September 27, 2021 and focuses on the alleged violation of equal protection and associational rights and the prohibition of partisan gerrymandering. Though gerrymandering is not a new concept in Ohio, many were outraged that the alleged extreme partisan gerrymandering came on the heels of a 2015 constitutional amendment that was specifically created to reduce partisan gerrymandering.

Ohio’s Voting Reform and New Election Law Proposals

Election Law Society · November 29, 2021 ·

By: Jayde Morgan

Following an overwhelming Republican victory as a result of the 2020 presidential and state-wide elections, the Republicans in Ohio began to look closely at the election laws within the state. In August 2021, the Ohio House of Representatives proposed House Bill 387. The bill was introduced by House Republican Representative Bill Dean in response to allegations of voting fraud in the 2020 election. More recently, on September 16, 2021, the bill was referred to the Government Oversight Committee as a part of the process to eventually get the bill passed. If the bill is passed, it would drastically change several aspects of the election process.

The Drop Box Dilemma Part II

vebrankovic · November 23, 2020 ·

By Nicholas Matuszewski

On October 8, U.S District Judge Aaron Polster overruled the one drop box per county limit imposed by Frank LaRose, Ohio’s Republican Secretary of State.

Judge Polster focused his ruling on the fact that 15% of Cincinnati and Cleveland’s population would have to travel over 90 minutes to vote. Of those 15%, most are poor minorities; many of whom may not even have the means to travel that far and would potentially be forced to utilize crowded public transportation and risk endangering their health during the pandemic.