Editorial: High court should resolve 90-day referendum issue

Columbus Dispatch

Since 1912, Ohioans have had the constitutional right of referendum — the power to reject laws passed by the General Assembly.

Voters have used it sparingly — only 13 times in 107 years. From the 1940s through the 1980s, Ohioans did not vote on a single statewide referendum.

In those 13 elections, Ohioans twice voted “Yes” to uphold legislative decisions — in November 1920, to affirm ratification of the 18th Amendment ushering in Prohibition; and in November 2008, to uphold a law restricting “payday lending.”

Of the 11 “No” votes to overturn acts of the legislature, perhaps the most notable was the rejection in November 2011 of a law to limit public sector collective bargaining.

Herculean task

The primary reason Ohio’s referendum has been rarely used is its difficulty. Within 90 days of a governor sending a signed bill to the secretary of state, petitioners must gather signatures of registered voters equal to at least 6% of the number who voted in the most recent election for governor. At present, that requires 265,774 valid signatures.

What’s more, the signatures must come from at least half (44) of Ohio’s counties, and each of those counties must supply signatures equaling at least 3% of the number who voted in that county in the most recent election for governor.

This is a herculean task, designed as such. Acts of the legislature should not be easy to overturn. If a referendum coalition overcomes these obstacles, the law in question is suspended pending a statewide vote in the next general election.

Although legislative acts should be difficult to overturn, Ohioans’ constitutional right to do so via referendum should not be diminished or sabotaged.

Historic opportunity

Now, the Ohio Supreme Court has a historic opportunity to decide whether Ohioans’ referendum rights were unconstitutionally compressed in their effort to overturn legislative approval of House Bill 6, a measure to funnel $150 million a year to two struggling nuclear-power plants along Lake Erie.

HB 6 imposes monthly surcharges on most Ohioans’ electric bills to generate $1 billion over seven years for FirstEnergy Solutions, owner of the nuclear plants. It also reduces green-energy standards and continues surcharges to subsidize two coal-fired power plants.

Heart of issue

At the heart of the case is whether the Ohio Constitution’s guarantee of 90 days to gather referendum signatures really means 90 days.

In 1929, nearly two decades after Ohioans adopted the referendum, the legislature approved a law “to facilitate” its use.

Among the added hurdles:

• Petitioners must file an “initial petition” with the secretary of state containing at least 1,000 proper signatures and the full text and summary of the law or section of law to be referred to voters. The secretary of state has 10 business days to verify the validity of the signatures and the description of the law.

• The attorney general, within the same 10-day period, must determine whether the petitioner’s summary of the law being challenged is “fair and truthful.”

• While these reviews are being conducted, referendum petitioners are not permitted to gather signatures.

• If the attorney general deems any portion of the summary flawed, petitioners must go back to square one, restarting the entire initial petition process.

The 1929 law effectively shortens the Ohio Constitution’s 90-day guarantee to citizens utilizing the referendum. It empowers an attorney general, whether politically motivated or not, to abridge a constitutional right.

In this case, Gov. Mike DeWine signed HB 6 on July 23 and filed it with the secretary of state. That began the 90-day period, meaning the referendum group — Ohioans Against Corporate Bailouts — was required to submit 265,774 signatures to the secretary of state by Oct. 22.

On July 29, the referendum coalition filed its initial petition with the attorney general and secretary of state.

On Aug. 12, Attorney General Dave Yost rejected the group’s initial petition as falling short of “fair and truthful.” That required Ohioans Against Corporate Bailouts to draft a new initial petition.

On Aug. 16, the referendum group filed a revised petition with the attorney general and secretary of state.

Finally, on Aug. 29, Yost certified the group’s revised petition as a “fair and truthful” statement. The next day, Secretary of State Frank LaRose notified the referendum group its revised petition contained the required 1,000 valid signatures.

By this time, the referendum coalition had lost 38 days, leaving only 52 days for the monumental task of gathering more than a quarter-million signatures. The coalition’s efforts were further obstructed by an unprecedented array of dirty tricks by a dark-money group allied with FirstEnergy Solutions. The tactics included hiring “blockers” to surround, harass and intimidate petition circulators.

In the face of these obstacles, the signature-gathering effort came up short. The referendum coalition said it had gathered just 221,092 by the deadline.

The coalition filed suit in U.S. District Court, claiming the shortening of the 90-day period was an unconstitutional restriction of free speech. On Oct. 23, U.S. District Judge Edmund A. Sargus Jr. ruled Ohioans Against Corporate Bailouts turned to the wrong court. The legal questions belong before the Ohio Supreme Court, he said.

Following the Ohio Supreme Court’s rules of practice, Sargus certified five state law questions to the court, all centering on whether and under what circumstances the state constitution’s 90-day referendum guarantee can be shortened.

This is a common practice in Ohio when federal courts determine there is an unclear issue of state law “for which there is no controlling precedent” in decisions by the Ohio Supreme Court and the resolution of that issue will either eliminate the need for a decision on the federal constitution or will change the nature of the issue before the federal court. Since 2010, federal courts in Ohio have certified 31 questions of state law to the Ohio Supreme Court. Of those, 24 have been accepted.

Time to act

It is surprising that, since adoption of the referendum in 1912, the Ohio Supreme Court has not directly or even indirectly addressed the core issue now at hand: Does the state constitution’s guarantee of 90 days to gather referendum signatures really mean 90 days?

All Ohioans deserve to know whether this fundamental right can be abridged. And, if so, how and why?

In 1915, the Ohio Supreme Court described voters’ initiative and referendum powers as “essential safeguards to representative government.” More than a century later, the court has a historic opportunity to give meaning to that promise.

The Dispatch encourages the court to accept the challenge.

Columbus Dispatch

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