Supporters of an anti-gerrymandering amendment in Ohio that aims to shift politicians away from drawing maps and instead put a citizen commission in charge say the state elections board should be forced to re-draft the November proposal summary.
The proposed amendment would prohibit partisan gerrymandering “by establishing rigorous criteria for redistricting to ensure fair maps, selection standards to ensure the impartiality and accountability of the new commission, and transparency measures to ensure public information and participation,” according to a brief filed Thursday.
But they argue that a summary written by Ohio Secretary of State Frank LaRose and adopted by a majority of the Ohio Ballot Board on Aug. 16 “would lead voters to believe the exact opposite.”
The summary is part of a lawsuit filed by Citizens Not Politicians, a group that led the effort to overhaul the redistricting law. The lawsuit asks the state’s highest court to order changes to the summary language made by the Election Commission, which LaRose chairs.
The proposed amendment, signed by more than 535,000 verified Ohio voters, would replace the current Ohio Redistricting Commission, made up of seven politicians including LaRose, with a 15-member citizens’ commission made up of Republicans, Democrats and independents.
Citizens Not Politicians legal counsel Don McTigue highlighted a change made by state Sen. Theresa Gavarone, R-Bowling Green, during an Elections Committee hearing in which she changed the word “gerrymandering” to “gerrymandering” when describing methods for redrawing congressional and state district boundaries in the amendment.
“Earlier this year, Attorney General Dave Yost certified the amendment’s summary as ‘fair and true,’” McTigue wrote. “That summary stated, consistent with the amendment’s plain text, that the amendment would ‘prohibit partisan gerrymandering.’”
The letter emphasizes the contention made in the original complaint filed on August 19, namely that the judgment on whether the proposed amendment “offers better policy than the current system” should be left to voters in November.
“The task of the electoral commission is to provide voters with information on facts that will enable them to form their own opinion,” we read in the letter.
This language should be consistent with constitutional principles defining language and title, which Citizens Not Politicians argues LaRose’s language does not do.
The Ohio State Constitution states that voting language “adequately state the substance of the proposition on which we are voting” and the wording “shall not be considered invalid unless it misleads, deceives or defrauds the voters.”
This Ohio Revised Code says that the secretary of state or board of elections is required to “present a true and impartial statement of the measure in such a manner that the title of the ballot may not be such as to create prejudice for or against the measure.”
The title of the redistricting amendment approved by a majority of the board is “establishing an appointed redistricting commission which shall not be elected by, nor subject to recall by, the voters of the state.”
“The Board of Elections’ attempt to vote against the amendment is an attempt to deny voting to Ohioans who expect their representatives on the Board to impartially discharge their mandatory duties,” McTigue wrote.
The Ohio Attorney General has filed a response to the complaint, but the filing has already drawn criticism from Democratic members of the Board of Elections who say they were not consulted on the legal document or provided with outside legal counsel to speak on their behalf, despite the fact that two Democrats, State Senator Paula Hicks-Hudson and State Representative Terrence Upchurch, voted against the Board of Elections language.
Hicks-Hudson and Upchurch ultimately filed their own brief Wednesday evening, in which they did not object to arguments that the Election Commission “as a whole has breached its constitutional duties” and instead stated that “the selected ballot title is inaccurate, biased, fraught with arguments, and misrepresents the procedures for the proposed amendment regarding the removal of commissioners who fail to discharge their duties.”
McTigue said the court “has never hesitated to strictly enforce the legal requirements for text that appears on the ballot, recognizing the century-old right of Ohioans to change their Constitution and laws through direct democracy.”
“The court should do the same in this case, ordering the (election commission) to start over and adopt ballot language and title that are consistent with their clear legal obligations.”
Just a year ago, the Ohio Supreme Court was asked to amend an election-approved summary judgment, in this case involving a reproductive rights constitutional amendment that ultimately passed with 57% of the vote.
The coalition that filed the lawsuit challenged language in the ballot measure that used the phrases “unborn child” and “reproductive medical treatment,” as well as the phrase “citizens of the State of Ohio” instead of simply “the State of Ohio” when referring to prohibitions that “indirectly burden, punish, or prohibit abortion.”
Like the authors of the redistricting amendment, LaRose’s wording could mislead voters about the intent of the proposed amendment, lawsuit against reproductive rights amendment summary stated that the amendment may mislead voters about the rights created by the amendment, the limitations contained therein, the discretion available to the state regarding fetal viability, and the legal regulation of the amendment.
The Ohio Supreme Court said it agreed “that the ballot language approved by the Election Commission misleads the average voter as to whose actions the amendment restricts.”
“However, the ballot wording is not defective in any other respect,” the court wrote.
The court asked the electoral commission to only to change the phrase “citizens of the State of Ohio” to “State of Ohio” and approve the rest.
Judge Michael O’Donnelly wrote in his accompanying opinion that “unfortunately, the legal defense appears to have infiltrated a process that is supposed to be objective and neutral.”
