The Ohio Supreme Court Ruling That Allowed August 8 Special Election to Amend the Ohio Constitution to proceed

In State ex rel. One Person One Vote v. LaRose, the Ohio Supreme Court was asked to determine whether a joint resolution to amend the Ohio Constitution may be placed on the ballot at a special August election when the Ohio Revised Code (R.C.) prescribes a different date.[1]

The proposed constitutional amendment at the center of this case, Amended Substitute Senate Joint Resolution No. 2 (S.J.R. 2), asked the voters whether the Ohio Constitution should be amended to require a 60% supermajority vote to adopt future constitutional amendments rather than the current simple majority requirement. It also asked the voters whether citizen referendum petitions and initiative petitions proposing a new law should require signatures from five percent of electors from all 88 Ohio counties.[2] S.J.R. 2 was adopted by the legislature on May 10, 2023, and it called for a special election to be held on August 8, 2023.[3]

The plaintiffs in this case sought to prevent a vote on S.J.R. 2 at the special election. They argued that the General Assembly was prohibited by the state constitution and by state law from placing S.J.R. 2 on the ballot on August 8.

Plaintiffs cited two laws as support for their argument, one which had recently been enacted and one which had recently been amended by the General Assembly. In January of 2023, the General Assembly had modified R.C. 3501.01(D) to provide that special elections could be held only on certain days, none of which were in August.[4] That same month, the General Assembly also enacted R.C. 3501.022, which “specifies the types of special elections that can be held in August”; that portion of the law applies to special elections by a political subdivision or taxing authority and does not authorize an August special election for a “statewide office, question, or issue.”[5]

The General Assembly did not amend R.C. 3501.02(E), which regulates special elections for a statewide question or issue.[6] R.C. 3501.02(E) provides:

Proposed constitutional amendments submitted by the general assembly to the voters of the state at large may be submitted at a special election occurring on the day in any year specified by division (E) of section 3501.01 of the Revised Code for the holding of a primary election, when a special election on that date is designated by the general assembly in the resolution adopting the proposed constitutional amendment.

In turn, R.C. 3501.01(E) provides that primary elections should be held in May in non-presidential-election years and in March in presidential-election years.

In One Person One Vote, the Ohio Supreme Court, in a per curiam opinion, rejected the proposition that the Revised Code limited the General Assembly’s authority to determine the date of the special election because “Article XVI, Section 1, of the Ohio Constitution controls the matter . . . .”[7]

According to the lead opinion, Article XVI, Section 1 “authorizes the General Assembly to submit the issue ‘at either a special or a general election as the General Assembly may prescribe.’”[8] To the majority, “the use of the word ‘prescribe’ . . . leaves to the General Assembly the details—like the date of the special election—to be established in pursuance of its authority to call for a vote of citizens on the amendment.”[9] Unlike other constitutional provisions requiring the General Assembly to take action “‘by law’ (i.e., pursuant to a statute),” Article XVI, Section 1 does not require the General Assembly to take action by law.[10] As such, the majority found that the General Assembly had the constitutional power to specify the date of the special election in a joint resolution.[11] The lead opinion also supported its argument by contrasting the constitutional provisions specifying dates for general elections and the lack of such specification for special elections.[12] Because the majority found that the General Assembly acted within its constitutional authority, it held that “the Ohio Constitution overrides any election statute that would otherwise prohibit the special election called for in” S.J.R. 2.[13]

The lead opinion applied this same logic to the question of whether the Revised Code limited the secretary of state’s ability to conduct the special election. It recognized that under the code, “no public official shall cause an election to be conducted other than in the time, place, and manner prescribed by the Revised Code.”[14] However, because the lead opinion found that the General Assembly has the constitutional authority to determine the date of the special election, “when the General Assembly has submitted to the secretary a joint resolution proposing a constitutional amendment, Article XVI, Section 1 contemplates that the secretary place the proposed amendment on the ballot.”[15] As such, the majority found that, notwithstanding the Revised Code, the General Assembly’s demands were constitutional, and that the secretary of state was required to act in accordance with them.

Thus, the court denied the plaintiffs’ request that it strike the ballot question and prevent the August 8 special election.

Justice Michael Donnelly wrote a dissent criticizing the lead opinion’s interpretation of the Ohio Constitution’s text. Justice Donnelly argued that “applying standard rules of grammar to Article XVI, Section 1 reveals that the thing the General Assembly prescribes is the secretary’s submission of the ballot at one of two possible settings: a special election or a general election.”[16] Because other constitutional provisions “categorically forbid[]” the General Assembly “from prescribing, either by law or by joint resolution, that a general election take place on any date it chooses,” Justice Donnelly went on, “it is clear that the word ‘prescribe,’ when referring to a ‘special or a general election’ in Article XVI, Section 1” can only mean that the General Assembly has the authority to choose between placing the ballot question at either a special or general election, and not to select a date for such election.[17]

Justice Jennifer Brunner also wrote a dissent “to make clear for the members of the majority and the public the long reach of the ramifications” of the court’s judgment.[18] Justice Brunner’s dissent largely echoed Justice Donnelly’s dissent. Justice Melody Stewart joined both dissenting opinions.

On August 8, Ohio voters rejected the proposed amendment.[19]

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