Lawmakers change constitutional amendment resolution amid looming deadline

COLUMBUS, Ohio — House lawmakers have amended the proposal to make it more difficult to amend the Ohio constitution. They have made it more vague.

The amendment's language states that instead of a specific Aug. 8 deadline, the special or general election must happen on or after 90 days from when the resolution is submitted to the Secretary of State. If the proposal passes on Wednesday, Aug. 8 would be 90 days later.

Fast Facts

Senate Joint Resolution 2 would make it harder to amend the Ohio constitution. It would require constitutional amendment initiative petitions to receive a 60% supermajority vote to pass, instead of the simple 50% +1.

Lawmakers also put forward S.B. 92 to reinstate August special elections, hoping to get their resolution on a ballot ahead of November, when an initiative codifying legal abortion in the Ohio constitution is expected to go to a vote. The legislators just voted a few months ago to get rid of August special elections because they cost the state $20 million and have low voter turnout. This bill is pretty much dead in committee.

Representatives in the Ohio House are now trying to streamline the constitutional supermajority resolution to be voted on in an August special election regardless, with lawmakers on both sides of the aisle confirming this effort is ultimately meant to stop abortion from becoming legal, even if a majority of Ohioans vote in favor of it in November.

News 5 Statehouse reporter Morgan Trau has been covering this piece of legislation from the beginning. She spoke with nonpartisan legal experts, advocates and lawmakers on each side about the possibilities of what could happen now.

Outcomes

This is confusing, so stay with us.

This vague language may allow representatives who are on the fence to vote for the S.J.R. 2. News 5 explained Tuesday that many GOP lawmakers were not in support of creating a special election just for this resolution.

Now that the bill doesn't explicitly say August, some may feel more comfortable voting for it.

"We have a lot of our members in the Republican caucus who are concerned about the August election," Speaker Jason Stephens (R-Kitts Hill) said.

That reluctance has been part of the dialogue, he added.

"I think it maybe makes a few members in the majority feel good," Minority Leader Allison Russo (D-Upper Arlington) said about the ambiguous addition.

If it passes, GOP lawmakers may use the vague language to hold an election in August anyway, since it will meet the deadline if it passes and is submitted Wednesday.

Another possibility— the bill will be re-amended on the floor to revert to the original language citing an August election. If that happens, it could fail if the bloc of lawmakers who amended it in the first place vote against it, lawmakers on each side said.

Amended or not, it's still not clear whether the bill has the votes needed to pass on the floor.

"We'll see what happens tomorrow," Stephens said.

And there's always the chance the bill passes but, for one reason or another, doesn't get submitted in time to set up a special election in August. That deadline is 11:59 p.m. on Wednesday.

If the amended bill does pass, but not in time for an Aug. 8 special election, could the lawmakers choose a random date in August to hold a special election after that date?

According to the election laws: "A special election may be held only... on the first Tuesday after the first Monday in August."

This doesn't mean that lawmakers can't change state law to allow for other dates, legal experts argue.

The ACLU's legal team claims that none of this matters because the resolution itself can't change laws. The lawmakers technically need to pass actual legislation, an actual statute, to have an August special election, the League of Women Voters said.

“A plain reading of the Ohio Revised Code says no public official shall conduct an election other than the time, place, and manner prescribed in state law," ACLU's Collin Marozzi said. "The law is definitive that an August special election can only be held if a local taxing jurisdiction is in fiscal emergency. No other election or issue can be placed on an August special election ballot without a change in state law, and simply adding language to a joint resolution does not change this fact."

That view would need to be litigated, which could take time, Case Western Reserve University law professor Jonathan Entin said. A lawsuit could effectively stop the chance of an August special election, he added.

"There wouldn't be time to get organized," Entin said.

Of course, if all other attempts to add an August special election provision fail in the legislature or pass too late, lawmakers could add such a provision into another bill that is set to pass, Entin said. However, he noted that the bills should be semi-related.

Basically, every possibility has a legal ramification that is unknown, Entin said.

What is next?

The next House session will take place at 3 p.m. Wednesday. If the Republicans want this resolution to be on the ballot, they need to get everything passed by midnight.

The Senate will need to concur on any changes made by the House to the bill, as well.

It is likely advocacy groups would challenge the legitimacy, constitutionality and/or legality of the resolution in court if it is passed as written, Entin said.

Stephens' dilemma

As mentioned in many previous News 5 article, Speaker Jason Stephens is facing backlash from his detractors for not being a fan of the resolution or the bill to reinstate August special elections after just getting rid of them a couple of months ago.

He has since unenthusiastically conceded.

Stephens has been pinned (metaphorically) against a wall by the Senate and by his detractors within the House GOP. House Democrats, who helped him win speakership, are on the other side — urging him to stay true to their deal from January.

In an exclusive TV interview, Minority Leader Allison Russo (D-Upper Arlington) explained that the Democrats chose Stephens to be speaker due to agreements, compromises and known Democratic wants. Killing the proposal to make it harder to amend the Ohio constitution was one of the pieces of legislation Stephens and his colleagues across the aisle seemed to have an understanding of, she said.

Russo was asked by reporters about her relationship with Stephens and her thoughts on him possibly going back on his word.

"I think that this isn't about reneging on Democrats, it's about reneging on the people of Ohio and taking away a right that they have had for over a century," Russo said.

She did acknowledge that her caucus would be meeting that night to discuss everything going on.

Trau asked Stephens if he was worried the Democrats, who propelled him to power, would turn against him if he pushes this legislation forward. The speaker walked away from Trau without answering.

For previous in-depth reporting by Morgan Trau on this issue, see below:

• Taft among former Ohio governors who say Ohioans should get to decide on abortion
• Vote on proposal to make it harder to amend OH constitution delayed as some House GOP members express concern
• Answering viewer questions about the Ohio proposal meant to stop abortion from becoming legal
• Amid mass bipartisan protest, Ohio Senate passes resolution to make it harder to amend constitution
• Special interest groups seek to protect constitution from special interest groups, special interest groups say
• With abortion possibly on Nov. ballot, Ohio GOP revives measures to make it harder to amend Constitution

Follow WEWS statehouse reporter Morgan Trau on Twitter and Facebook.