Ohio’s ballot initiative procedures debated before full Sixth Circuit

CINCINNATI (CN) — The inability of Ohio voters to promptly contest their attorney general’s denial of ballot initiatives violates their First Amendment rights, according to arguments made Wednesday before an en banc Sixth Circuit.

Ohio voters Cynthia Brown, Carlos Buford and Jenny Sue Rowe sought to amend the state constitution via ballot initiative nearly two years ago, but have been unable to secure placement of the initiative on the 2024 ballot following a series of rejections by Republican Attorney General Dave Yost.

The voters claim Yost “has offered a series of shifting rationales” in each of his rejections of their amendment, titled “Protecting Ohioans’ Constitutional Rights,” and stymied their efforts to place the initiative on this year’s ballot.

If approved by Ohio voters, the amendment would repeal immunity defenses for government actors sued for violations of constitutional or civil rights.

Denied expedited review by the Ohio Supreme Court in March 2024, the voters filed a federal lawsuit but were similarly denied injunctive relief after U.S. District Court Judge James Graham, a Ronald Reagan appointee, ruled they were unlikely to establish standing or prevail on their claims, which were based on a decision made by the state supreme court, not Yost.

“Defendant Yost was not responsible for that discretionary decision, nor is he in any way responsible for setting the rules governing the timetable under which the Ohio Supreme Court decides cases,” Graham concluded.

The voters had more luck before a panel of the Sixth Circuit, however, which reversed Graham in May 2024 and found their harm was traceable to Yost.

Nevertheless, in June, the appeals court granted Yost’s request for a rehearing in front of the full court, which required the voters to submit an updated version of their initiative before a statutory deadline. The attorney general rejected that submission as well.

In a supplemental brief to the appeals court before Wednesday’s en banc arguments, the voters disputed Graham’s assessment of their claims as being related to the Ohio Supreme Court docket and not Yost’s regulatory authority.

“Yost’s exercise of his unilateral statutory authority to reject plaintiffs’ summary restricts their core political speech by preventing them from describing their proposed amendment during the circulation process in the manner they would prefer,” the voters said in the brief.

In his supplemental brief, Yost argued sovereign immunity barred the voters’ lawsuit because they seek retroactive relief to alter a decision made “months ago.”

Arguing for the voters Wednesday, attorney Kelsi Corkran from the Washington-based Institute for Constitutional Advocacy and Protection focused on First Amendment concerns raised by the attorney general’s function rather than the Ohio Supreme Court’s role in the matter.

“The process creates a ‘ministry of truth’ for the government,” she said. “This is the stuff of nightmares for the founders that goes far beyond anything narrowly tailored to prevent fraud.”

Chief U.S. Circuit Judge Jeffrey Sutton, a George W. Bush appointee, expressed doubts about the ripeness of the appeal, given the initial preliminary injunction request covered only the November 2024 election cycle.

“I’m trying to figure out why it’s not moot,” he said. “We have to take the preliminary injunction motion as presented.”

Corkran told the court she would understand dismissal of the case on mootness grounds, but emphasized that decision would require her clients to return to federal court to litigate future election cycles.

U.S. Circuit Judge Karen Moore, a Bill Clinton appointee, didn’t mince words in her response to the attorney’s comments.

“If you have to go back to square one, doesn’t this show the futility of the process and that perhaps this is a merits-based disagreement with the attorney general about the substance of the proposal?” she asked. “Over a two-year period, the attorney general has been rejecting this petition for one picayune reason or another.”

Ohio Solicitor General Elliot Gaiser argued on behalf of Yost and attempted to minimize Yost’s role in the process.

“The attorney general’s role is modest,” he said. “This is part of the legislative process, it’s not like a change.org petition or someone with a clipboard.”

U.S. Circuit Judge Raymond Kethledge, a George W. Bush appointee, disputed the attorney’s point and said the ballot initiative process is more like “citizens talking to citizens.”

“Ballot access is not at issue here. This is a direct restraint on voters’ ability to share a particular political message that looks more like government regulation of speech than government speech,” he said.

“The people are the legislature here,” Gaiser responded.

In her rebuttal, Corkran described the circular process her clients have endured as a “Kafkaesque loop” lasting more than three years and involving relatively minute changes upon each subsequent rejection by Yost.

No timetable has been set for the court’s decision, but at the close of arguments Sutton again advocated for dismissal of the case as moot, which he said would allow the plaintiffs to file a new preliminary injunction request for future election cycles and, if necessary, allow the Sixth Circuit to reconvene another en banc court next year.

U.S. Circuit Judges Eric Clay, a Clinton appointee, Richard Griffin, a George W. Bush appointee, Jane Stranch, an Obama appointee, Trump appointees Amul Thapar, John Bush, Joan Larsen, John Nalbandian, Chad Readler and Eric Murphy, and Stephanie Davis, Andre Mathis, Rachel Bloomekatz, and Kevin Ritz, all Biden appointees, rounded out the panel.

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