Two Democrats on the Ohio Ballot Board have called on the state attorney general to speak on their behalf in a lawsuit over language on the ballot for a proposed redistricting amendment. They have written their own court document acknowledging that the language violates the Constitution.
The board is being sued by the amendment’s authors for approving language that Citizens Not Politicians attorneys say is deceitful and will mislead voters who see the language on the ballot in the November general election. The language was written by Ohio Secretary of State Frank LaRose and his staff, LaRose told the board and attendees at the August board meeting where the language was approved.
“I wrote it,” LaRose said, “with the help of my team and based on feedback from those for and those against.”
The amendment’s sponsors took issue with nearly every bit of LaRose’s language, including the title of Section 1: “Creating an appointed redistricting board not elected by, and not removable from, the voters of the state.”
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.
Opponents of LaRose’s drafting of the brief have filed complaints with the Ohio Supreme Court, asking the court to force the board to change the wording, citing constitutional provisions that dictate the wording included on the ballot.
The approved language includes a change introduced during the meeting by state Sen. Theresa Gavarone, R-Bowling Green, that states the redistricting amendment would require a 15-member citizens’ commission to “organize the boundaries of the electoral districts of state legislative and congressional bodies.”
LaRose agreed with the change because he argued the word “gerrymandering” was already included in the amendment in another way.
“Then it can’t be a taboo word if it’s proposed by petitioners,” LaRose said at the meeting.
State Sen. Paula Hicks-Hudson, D-Toledo, and Rep. Terrence Upchurch, D-Cleveland, both voted against the language, with Hicks-Hudson telling the board at the time that changing the summary language was a “dangerous proposal that threatens the integrity of the vote on Matter 1.”
During the discussion, LaRose asked Hicks-Hudson if she was considering supporting the change, to which she replied, “Of course not.”
Before LaRose’s language was finally approved, Hicks-Hudson made a motion to adopt a summary written by Citizens Not Politicians, which was defeated by a vote of 3-2. In a final attempt, she also made a motion to replace all of LaRose’s language in the summary with Citizens Not Politicians language before the approval vote. That motion was also defeated by a vote of 3-2.
Hicks-Hudson and Upchurch were therefore unhappy when they were named as parties on whose behalf the Ohio Attorney General’s Office acted in a legal “response” to the lawsuit. Document is a typical first approach to the allegations raised in the lawsuit, with no significant form of dialogue beyond a uncomplicated denial of a crime and an affirmation of the legal arguments.
In an op-ed filed Monday, Assistant Attorney General Julie M. Pfeiffer said the proposed amendment and ballot language “speak for themselves.”
In the first paragraph, however, Pfeiffer lists Hicks-Hudson and Upchurch “in their official roles as members of the Ohio Ballot Board,” meaning that the arguments in the document constitute legal commentary by the two Democrats who voted against the bill, just as they could have been by LaRose, Gavarone, and board member William Morgan, who supported it.
Upchurch and Hicks-Hudson issued a statement saying the document was filed “without warning or legal consultation” and that it “ignores (their) position on ending gerrymandering in Ohio and their vote against the fraudulent and misleading ‘Citizens, Not Politicians’ ballot language.”
“It is absurd that as a member of the Ohio Ballot Board, my voice and the voice of the people continue to be ignored and trampled upon when it comes to safeguarding the dignity of the Citizens, Not Politicians amendment,” Upchurch said in a statement.
They have since filed their own response to the complaint, representing themselves.
IN document submitted on Wednesday evening In the state Supreme Court, Hicks-Hudson and Upchurch identified themselves as the only voters against the initiative and presented their own complaints about the process initiated by the attorney general’s office.
“We have real concerns about the process for adopting this provision and about the Secretary of State’s honesty and integrity in giving fair and just consideration to the provision proposed by the Voting Board. We believe our input and responses are relevant to this dispute,” the pair wrote in court papers.
Democrats also used their own documents to “acknowledge that the Election Commission as a whole has breached its constitutional duties” and “further acknowledged that the selected ballot title is inaccurate, biased, contentious, and misrepresents the procedures for the proposed amendment regarding the removal of commissioners who fail to discharge their duties.”
“The undersigned Respondents explain that they did not personally act in ‘blatant disregard of applicable law and their legal duties,’ unlike the actions of other members of the Election Commission,” Hicks-Hudson and Upchurch wrote.
Outside legal counsel
House and Senate Minority Leaders Allison Russo and Nickie Antonio sided with their colleagues and sent a letter to Ohio Attorney General Dave Yost on Tuesday “detailing his blatant disregard for the legal rights of minority members on the Ohio Ballot Board.”
The letter indicates that on Aug. 23, Russo and Antonio sent another letter to the attorney general’s office requesting the appointment of outside counsel.
The minority leaders are no strangers to speaking out on their own in a lawsuit filed against a group they were a part of. They filed their own joint document after the redistricting maps adopted by the Ohio Redistricting Commission were challenged in court.
On Aug. 26, the same day the attorney general’s office filed a response to the election commission’s lawsuit, outside counsel Shawn Busken called attorneys for the minority caucuses in the House and Senate “in response to a letter sent to the attorney general regarding the election commission,” according to a letter released Tuesday.
“When the call was returned and the House Minority Legal Counsel spoke with Mr. Busken, he reported that your office’s position was that the Election Commission was speaking Just through the Chairman, Secretary of State Frank LaRose and that Just “The Secretary of State has been consulted on this matter and the course of action,” the leaders said in an Aug. 27 letter to Yost.
The minority leaders said Busken confirmed that “no one, other than the chairman, not even the majority members of the Senate and the majority members of the House of Representatives, was consulted or asked if they had any information or comments on the response.”
The Attorney General’s Office also denied a request for outside counsel, according to Russo and Antonio.
The letter cited the Ohio Rules of Professional Conduct, saying the court document “expressly prohibits this type of deliberate and explicit politically motivated conduct.” The ORPC is the governing document for attorneys in the state.
Democrats paid particular attention to provisions regarding “scope of representation and the division of authority between client and attorney,” client-to-client communications and conflict of interest situations.
Russo and Antonio argued that when a conflict of interest arises, ORPC requires lawyers to obtain waivers from clients “recognizing and accepting the representation, notwithstanding the conflict of interest,” which they were not asked to do.
“Our interests are fundamentally different from the interests of the majority members of the electoral commission,” we read in the letter.
Minority leaders say the first Democrats saw the attorney general’s response to the lawsuit was when Pfeiffer sent it to caucus lawyers the day it was filed.
Antonio and Russo said they will again seek the appointment of outside counsel and if one is not appointed, “we will pursue all legal avenues available to us.”
Hicks-Hudson and Upchurch made the same argument in their response to the lawsuit, calling the actions by the attorney general’s office a “deliberate political maneuver” and stating that they “categorically disagree with many of the answers provided in the response filed by the Office of the Attorney General.”
“We are individually listed as Respondents in this case and will continue to file our own pleadings, regardless of the Attorney General’s improper actions, unless the Court issues other instructions,” the document stated.
The Attorney General’s Office told OCJ that the Election Commission “is the same as any other commission in Ohio.”
“AGO represents the entire council and defends the council’s vote,” spokesman Steve Irwin said in a statement. “No council member has the right to counsel. That’s not unusual. That’s how the law works.”
