The Ohio Constitution reserves for the people the right to propose an amendment to the Ohio Constitution by initiative petition.[1] In State ex rel. DeBlase v. Ohio Ballot Board, the Ohio Supreme Court reaffirmed the power of Ohio citizens to propose amendments to the Ohio Constitution.[2] Additionally, a concurrence by Chief Justice Sharon Kennedy signaled that at least three Ohio Supreme Court justices believe the Ohio Constitution’s text provides the people with even greater power than the court has recognized.

Article II, Section 1a of the Ohio Constitution sets forth the procedures for proposing an amendment to the Ohio Constitution by initiative petition. Under the Ohio Revised Code, the Ohio ballot board must determine whether an initiative petition “contains only one proposed * * * constitutional amendment so as to enable the voters to vote on a proposal separately.”[3] The Ohio ballot board must certify that the initiative petition contains only one proposed amendment or, “if the ballot board determines that a petition contains more than one proposed amendment, ‘the board shall divide [it] into individual petitions containing only one proposed * * * amendment so as to enable the voters to vote on each proposal separately * * *.’”[4]

In DeBlase, a per curiam opinion of the Ohio Supreme Court upheld the certification of a proposed constitutional amendment titled “The Right to Reproductive Freedom with Protections for Health and Safety.”[5] The full text of the proposed amendment reads:

Be it Resolved by the People of the State of Ohio that Article I of the Ohio Constitution is amended to add the following Section:

Article I, Section 22. The Right to Reproductive Freedom with Protections for Health and Safety

A. Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on:

1. contraception;

2. fertility treatment;

3. continuing one’s own pregnancy;

4. miscarriage care;

5. abortion.

B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either:

1. An individual’s voluntary exercise of this right or

2. A person or entity that assists an individual exercising this right, unless the State demonstrates that it is using the least restrictive means to advance the individual’s health in accordance with widely accepted and evidence-based standards of care.

However, abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient’s treating physician it is necessary to protect the pregnant patient’s life or health.

C. As used in this Section:

1. “Fetal viability” means “the point in a pregnancy when, in the professional judgment of the pregnant patient’s treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case- by-case basis.”

2. “State” includes any governmental entity and any political subdivision.

D. This Section is self-executing.

In this case, the Ohio ballot board determined that the petition contained only one proposed amendment. Subsequently, relators, registered Ohio voters, filed a mandamus action with the Ohio Supreme Court seeking a writ of mandamus compelling “Secretary of State Frank LaRose to convene a meeting of the ballot board and to compel the board to vacate its decision and instead determine that the petition contains more than one proposed amendment.”[6] Relators also requested a writ ordering “the ballot board to divide the petition into multiple petitions that each contain only one proposed amendment and to certify the approval of each of the petitions to the attorney general as multiple single-amendment proposals.”[7] In addition to the secretary of state, the suit also named members of the committee who proposed the constitutional amendment as respondents.[8]

The court first noted that the standard for a ballot case not alleging fraud or corruption is “whether the board abused its discretion or clearly disregarded applicable law in determining that the proposed initiative petition contains a single constitutional amendment.”[9] Next, the court explained that in Ohio Liberty Council, the court determined that a proposal “contained only one amendment because all the sections bore ‘some reasonable relationship to [a] single general purpose * * *.’”[10]

Based on this test, the court went on to reject two arguments raised by relators. First, relators argue that the initiative petition at issue here includes multiple constitutional amendments because it groups a right to abortion “under the rubric of ‘one’s own reproduction decisions’ and on par with ‘contraception,’ ‘fertility treatment,’ and ‘miscarriage care’ (and whatever other rights are being established).” Abortion cannot be grouped with other reproductive rights, argue relators, because abortion is “a unique act” that is “inherently different” from all other intimate personal decisions. Relators quote language from the United States Supreme Court’s abortion jurisprudence as support for this proposition.[11]

The court rejected this first argument because the test is not “whether individual provisions of a proposed amendment relate to one another; rather, the inquiry is whether an amendment’s provisions relate to a single general purpose.”[12] The court reasoned that the proposed amendment in this case “meets that standard because each provision relates to the single general purpose of protecting a person’s reproductive rights.”[13]

The court next rejected relators’ argument that “the initiative contains multiple amendments because it encompasses both (1) broad and general language encompassing a new constitutional right and (2) specific details in the nature of a legislative enactment * * * .”[14] The court noted that relators identify “no authority in the Ohio Constitution (or [the court’s] jurisprudence interpreting it) that limits a proposed amendment to so-called ‘broad and general’ principles, as opposed to” specific details.[15] The court further noted that “the Ohio Constitution contains several provisions that contain specific details that arguably go beyond broad and general principles.”[16]

Because relators failed to show that the proposed amendment contains more than one constitutional amendment under the court’s test, the court denied the requested writs.

Chief Justice Kennedy concurred in the judgment only, with an opinion joined by Justices R. Patrick DeWine and Joseph Deters. According to Chief Justice Kennedy, the text of the Ohio Constitution “provides that one amendment may be submitted on one petition and that each amendment is a separate ballot issue, but it does not limit a proposed amendment to a single subject, purpose, or object.”[17] Chief Justice Kennedy wrote separately to express her view that the court’s precedent—which the per curiam opinion relied on—“improperly grafted a ‘single-subject rule’ onto the people’s power to propose amendments to the Ohio Constitution.”[18]

Chief Justice Kennedy noted that the court’s precedent improperly “layered language from the single-subject rule of Article II, Section 15(D),” which limits bills to one subject, “onto the separate-vote requirement of Article XVI, Section 1,” which applies to constitutional amendments proposed by the legislature, “and then used both to burden the people’s right to propose amendments to the Constitution.”[19] She said that, contrary to this erroneous precedent, the constitution does not in fact limit ballot proposals to a single subject.[20] Because Chief Justice Kennedy agreed that “[t]he proposed amendment at issue in this case is one stand-alone amendment,” as “[i]t would create a wholly new provision in the Ohio Constitution * * *,” she concurred with the court’s judgment.

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[1] E.g., Ohio Const. art. II, § 1a.

[2] State ex rel. DeBlase v. Ohio Ballot Bd., No. 2023-0388 (Ohio June 1, 2023), available at  https://www.supremecourt.ohio.gov/rod/docs/pdf/0/2023/2023-Ohio-1823.pdf.

[3] Id. at ¶ 5 (citing Ohio Rev. Code. 3519.01(A), 3505.062(A)).

[4] Id. (quoting Ohio Rev. Code. 3505.062(A)).

[5] Id. at ¶ 1­–3. Justices Donnelly, Steward, and Bruner concurred with the per curiam opinion. Justice Fischer concurred in the judgment only.

[6] Id. at ¶ 2.

[7] Id.

[8] Id. at ¶ 14. As an initial matter, the court denied the writ as to the committee members as “relators actually seek relief only from the ballot board and its members.” Id.

[9] Id. at ¶ 15.

[10] Id. at ¶ 19 (quoting State ex rel. Ohio Liberty Council v. Brunner, 928 N.E.2d 410, 417 (Ohio 2010)).

[11] Id. at ¶ 20.

[12] Id. at ¶ 21.

[13] Id.

[14] Id. at ¶ 23.

[15] Id. at ¶ 24.

[16] Id. (citing, e.g., Ohio Const. art. I, § 9 (“establishing the general principle of the right to bail but also specifying detailed considerations for determining the amount”); Ohio Const. art. I, § 10a (“providing basic rights for victims of crime but also detailing specific procedures”)).

[17] Id. at ¶ 30 (Kennedy, C.J., concurring in the judgment) (citing Ohio Const. art. II, § 1g).

[18] Id. at ¶ 29 (Kennedy, C.J., concurring in the judgment).

[19] Id. at ¶ 35–36 (Kennedy, C.J., concurring in the judgment) (quoting State ex rel. Ohioans for Secure & Fair Elections v. LaRose, 152 N.E.3d 267, 287 (Ohio 2020) (Kennedy, J., concurring in judgment)).

[20] Id.

 

 

 

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