Ohio Attorney General Dave Yost has now confirmed in a legal opinion what local elections officials long feared: The anti-Zuckerbucks language shoehorned into the state budget last summer to keep wealthy private individuals with an agenda (like Facebook’s Mark Zuckerberg) from helping to pay for elections exposes those who violate its broad language on collaboration to criminal charges.
Those penalties start with a first-degree misdemeanor (up to half a year in jail and up to a $1,000 fine) and escalate to a felony for a second offense.
In his Jan. 4 opinion, Yost found that these penalties, although specified in one section of the law as applying to all who violate Ohio elections law, in practice would apply only to elections officials — although that is his interpretation and is subject to litigation.
Yost’s finding adds to the urgency of repealing the poorly vetted elections law language as soon as possible to get rid of its broad and potentially pernicious language on collaboration. Then, its Zuckerbucks language can be tested through hearings in a stand-alone bill, to avoid any further unintended consequences, either for elections officials or others.
Filing deadlines for the May 3, 2022 primary are fast approaching, even though some of those deadlines may be altered, depending on how quickly officials repair rejected state legislative and congressional redistricting maps in Ohio.
It’s imperative that Ohio lawmakers act to replace the Zuckerbucks provisions with a fully vetted and debated law on private elections money, but without the loaded word, “collaborate.”
Otherwise, Ohio law as it now stands leaves people of good will, both on elections boards and off them, vulnerable to criminal charges just for trying to do good and do their jobs by educating voters or via other collaborative elections-related tasks.
Yost’s Jan. 4 legal opinion construes the collaboration violation as excluding routine elections business, such as disseminating voter information to private groups and through the media. But that might have to be litigated, too, since the elections-law language adopted without debate in House Bill 110, the fiscal 2021-22 state budget, didn’t define its terms.
Yost defined collaboration in the budget language to mean “joint administration” of a project. Hence, he found that the following “would not constitute ‘collaboration’:
• Providing election information to a nongovernmental person or entity, whether orally or in writing;
• Speaking at, providing election information at, or conducting election activities (such as registering voters or recruiting poll-workers) at an event hosted by a nongovernmental person or entity;
• Publishing election information on a medium owned or hosted by a nongovernmental person or entity (such as a newspaper, radio or television broadcast, website, or bulletin board), whether for free or as paid advertising.”
Yet, again, that’s his finding on what the law would mean in practice, untested by litigation.
We already know that the drafters of this language didn’t intend for it to have a broad impact when they sought to bar Zuckerbucks in future elections — acting after discovering, belatedly, that the legislature had authorized Ohio Secretary of State Frank LaRose to use $1.1 million in Zuckerbucks in 2020 that had been contributed through a third-party nonprofit. (A number of Ohio counties, including Franklin, Lucas and Lorain counties, won related grants.)
As reported last July by cleveland.com’s Andrew J. Tobias, “Senate President Matt Huffman, a Republican whose chamber added the voting language to the budget, said legislators didn’t intend to block routine voter outreach. He said lawmakers are trying to prevent private organizations with political agendas from manipulating the results of an election by directing resources toward targeted Republican or Democratic areas.”
“The point of this (language),” Huffman told Tobias, “is that there are things that are more neutral and general in nature, but then there are other things that are more specific and extraordinary. … It’s got to be one of those things that you know it when you see it.’”
You know it when you see it? Or, maybe you’ll know it when it hits you over the head in a court of law after you thought you were just doing your civic duty.
Huffman’s comments show why legislation shouldn’t be shoehorned into the budget but rather adopted in separate bills subject to full review.
Lawmakers should repeal this election-law change as soon as possible and debate proposed anti-Zuckerbucks language via a stand-alone bill in committee hearings, where unintended consequences can be flagged and corrected.