Ohio high court mostly sides with GOP changes to reproductive rights vote ballot language
Backers of the amendment to protect abortion rights proposed a summary that Republican leaders changed. Also: Law Dork joins the 5-4 podcast to talk SCOTUS.
The Ohio Supreme Court more or less allowed Ohio Republican leaders to put an anti-abortion thumb on the scale in an attempt to hurt the chances a proposed reproductive rights constitutional amendment will have for passage on the November ballot.
Republican Secretary of State Frank LaRose is the head of the Ohio Ballot Board. Between his office and the Republican majority on the board, the summary language describing the proposal was changed last month. The changes were challenged in the state’s 4-3 Republican-majority high court and, on Tuesday, the court mostly acquiesced to the Republicans leaders’ changes.
The only question now is whether the voters will, yet again, see past the schemes.
Law Dork covers litigation surrounding the post-Roe landscape in depth. Subscribe today.
In an August vote, Republicans had tried to raise the threshold that the reproductive rights proposal — and all similar voter-led constitutional initiatives — would have had to reach to pass. They failed.
Then, LaRose and team tried their next move: They changed the ballot summary language — the description that will appear on the ballot — to try to tilt the scales in their favor yet again. Republican Attorney General Dave Yost had already approved the proponents’ submitted summary as “fair and truthful” in March. Nonetheless, as Law Dork covered previously, LaRose’s office proposed the changes and the Ballot Board OK’ed them.
Notably, the language approved by the board uses “unborn child” instead of “fetus” and focuses on abortion, while the amendment and proponents’ summary addresses reproductive rights more broadly.
The challenge followed. When the Ohio Supreme Court released its decision Tuesday, the court issued it as a “per curiam” decision — meaning, “by the court” — despite the fact that only two of the seven justices — Justice Patrick Fischer, a Republican, and Justice Michael Donnelly, a Democrat — apparently agreed with the whole decision.
The decision, ultimately, was to change one small aspect of the summary language. The court only ordered the Ballot Board to meet and change language in the summary stating that the proposed provision limits “the citizens of the State of Ohio” to “the State.” The change was ordered because, as the per curiam opinion put it:
Instead of describing a proposed amendment that would establish a right to carry out reproductive decisions free from government intrusion, the ballot language’s use of the term “citizens of the State” would mislead voters by suggesting that the amendment would limit the rights of individual citizens to oppose abortion.
The court rejected every other sought change, holding that the other challenged language “is not misleading” or “does not mislead voters.”
Although I’ve published them previously, I just want to show people both the proponents’ original summary language:
And the Ballot Board’s changed summary language:
In a separate opinion concurring with the court’s decision, Donnelly wrote, “It’s unfortunate that advocacy seems to have infiltrated a process that is meant to be objective and neutral. … Nevertheless, I am confident that the voters will be fully informed about the proposed amendment when they enter the voting booth.”
A shifting majority of the other five justices agreed with different parts of the court’s decision such that the per curiam opinion always was representing a majority of the court, just not the same majority.
Justices Melody Stewart and Jennifer Brunner, the two other Democrats on the court, joined Fischer and Donnelly to create a majority supporting the one change that was ordered. Both Stewart and Brunner wrote opinions dissenting in part, however, to state that they would have gone further to address the Ballot Board’s changes.
Stewart wrote a one-paragraph statement, noting that the board “crafted partisan ballot language designed to do any number of things, but not simply designed to do its job — that is, inform voters of the substance of the proposed amendment.“
Brunner wrote a more detailed, 17-page opinion, explaining exactly what she saw happened here and where she believed the court should have gone. (Donnelly, in fact, cited to her opinion in his concurrence to explain his statement that “advocacy seems to have infiltrated” the process.)
“The evidence in the record makes clear that it was their intent to use their positions on the board to influence the outcome of the election with the ballot language the board certified for the proposed amendment,” Brunner wrote. The former Ohio secretary of state wrote that the board adopted “ballot language that is different from the language in the proposed amendment, that is not condensed, that is wordier than the actual text of the proposed amendment, and that does not properly represent the substance of the proposal.” As such, she concluded, it “was an abuse of discretion and contrary to law” and the court should have ordered the board to fix it.
But, the court did not.
What’s more, Justice Joe Deters — a former prosecutor named to the bench by Republican Gov. Mike DeWine last year — dissented in part in a three-page opinion to explain that, in his view, even the one small change the court ordered was going too far.
“The majority concludes that the term is misleading. It is not,” Deters wrote. “Nothing in the ballot language would lead the average voter to understand that the proposed amendment would curb his or her individual right to object to abortion.“
Chief Justice Sharon Kennedy, who won election to the top spot last year (in a race against Brunner) but has been on the court for more than a decade, and Justice Pat DeWine, the governor’s son, joined Deters in his partial dissent.
“The Ohio Ballot Board’s language does not mislead, deceive, or defraud voters,” Deters wrote for the trio of Republicans, who joined Fischer and Donnelly to create a majority rejecting all of the other challenges to the Ballot Board’s language.
The vote on the proposed amendment is Nov. 7, less than seven weeks now. The deadline to register to vote in Ohio, however, is Oct. 10 — and early in-person voting and absentee mail voting both begin the next day, Oct. 11. Finally: Military and overseas absentee voting begins Friday.
The U.S. Supreme Court is coming back …
… and I got to talk with Rhiannon, Michael, and Peter about it (as I mentioned last week). So, that’s at least one good thing to come from this year’s Supreme Court term.
Seriously, it’s a great episode about the upcoming term, and they were such gracious hosts.
And get ready.
Law Dork with Chris Geidner brings you independent, reader-supported legal and political journalism that seeks to hold government and other public officials accountable. Support this reporting by becoming a paid or free subscriber today.