The following article was originally published in the Ohio Capital Journal and published on News5Cleveland.com under a content-sharing agreement.
Last week, Ohio Attorney General Dave Yost allowed a state constitutional amendment to go forward after previously rejecting it.
His approval was a formality — the Ohio Supreme Court recently ruled he could not reject the Ohio Voters Bill of Rights simply because of its title — but it could open to door to another amendment Yost has repeatedly blocked.
In Ohio’s ballot initiative process the Attorney General plays a crucial gatekeeping role. After a committee has drafted its amendment and collected an initial 1,000 signatures, the AG gets to decide if what they’ve got down on paper represents a “fair and truthful” statement of what their proposal would actually do.
It gives the AG significant power over whether a petition eventually winds up on the ballot.
His approval, under court order, of the Ohio Voters Bill of Rights came after two previous rejections. A different measure to end qualified immunity received rejection letters seven times. But following the recent decision, the AG and the committee pushing to restrict legal protections for public employees like police officers are asking the state Supreme Court how its ruling impacts their proposal.
The Ohio Voters Bill of Rights
The amendment covers all the basics — voting is a fundamental right for anyone 18 years and older who is citizen of the U.S. and Ohio — and enshrines them in the state constitution. By establishing those rights in the state charter, procedures like early voting or absentee voting couldn’t be rolled back by a simple act of the General Assembly; those rights would become the floor rather than the ceiling.
However, the bill of rights goes a few steps further to make voter registration and casting a ballot far easier. The amendment would establish an automatic voter registration process which would update or register eligible voters anytime they interact with the Ohio Bureau of Motor Vehicles. In addition, the proposal would establish same-day voter registration and grant counties the ability to open up additional ballot drop boxes or early voting sites.
Although Republican Secretary of State Frank LaRose previously supported the idea of automatic voter registration, he derided the proposed amendment late last year.
“Let me be clear: there will be nothing secure and fair about the way we vote in this state if this amendment is passed,” he said in a press release. “It’s a direct assault on the integrity of our voting process and the safeguards we’ve put in place to hold that process accountable.”
Yost objected to the use of “bill of rights” to describe a series of provisions related to voting administration rather than “an articulation of specific, discrete rights that may be enforced by individuals against the government.” The Supreme Court wasn’t buying it, and noted in 2014 then-AG Mike DeWine advanced a proposal with the exact same name.
But Yost didn’t give his approval without a parting shot. In his letter to the committee, he insisted, “the fact that the recent decision of the Supreme Court of Ohio concludes the relevant statute does not grant me authority to review the title does not change my determination that it is misleading.”
“The Court did not reach a decision on the merits of that determination,” he went on. “I stand by it. I urge you to consider a more accurate and less misleading title.”
The amendment formerly known as…
Qualified immunity is a judicial doctrine holding that public officials should have protection from personal liability for their official conduct. Essentially, if an official is operating in good faith in murky legal waters they should be given the benefit of the doubt. The idea has been around since the late-1960s, but in recent years it has been used to shield police officers in excessive force cases.
The Ohio Coalition to End Qualified Immunity has been working to get an amendment on the ballot, and in the last two years the state attorney general has rejected seven iterations of their amendment. The most recent proposal, submitted last July, has no title at all after Yost criticized the “Protecting Ohioans’ Constitutional Rights” name they’d given the earlier proposal.
Yost rejected the untitled amendment, too — insisting the title “is an indispensable piece to determining whether the summary of it is fair and truthful.”
But following the Ohio Supreme Court ruling that Yost couldn’t reject the Ohio Voters Bill of Rights based solely on the title, the AG and the committee backing the qualified immunity rollback are asking the court how the decision impacts their case.
Last week both parties filed a joint motion with court to set aside the existing fight over the title and order the attorney general to go forward with his “fair and truthful” review of the underlying amendment summary.
Last Wednesday, the court put briefing on hold for that underlying case, while it decides whether to order Yost go forward with his review.
