You can find the Sixth Circuit’s order and dissent at this link.
The AG is already off to SCOTUS.
Category Archives: direct democracy
“Constitutional Limits On Legislative Overrides Of Statutory Initiatives In Ohio”
Derek Clinger has posted this draft on SSRN (forthcoming, Case Western Law Review). Here is the abstract:
After Ohioans overwhelmingly approved an initiated statute in 2023 legalizing adult-use marijuana and establishing a regulatory framework for the new commercial industry, state lawmakers swiftly moved to amend—and even repeal—key provisions. While no changes have passed yet, growing momentum in the Ohio General Assembly raises a fundamental question: Does the Ohio Constitution allow legislators to override the will of the people?
A common assumption is that Ohio lawmakers have complete discretion to alter voter-approved laws because, unlike some other state constitutions, Ohio’s lacks an explicit prohibition. But Ohio courts have never ruled on the issue, leaving the question unresolved and creating uncertainty not only for the marijuana law but also for the future viability of Ohio’s century-old statutory initiative power.
This Essay challenges the prevailing view that statutory initiatives in Ohio lack constitutional protection, offering the first in-depth analysis of the issue. After surveying how other state constitutions address legislative alterations of initiated statutes, it argues that the most faithful reading of Ohio’s constitutional text, structure, and history is one that significantly limits—but does not entirely prohibit—legislative overrides of initiated laws. More specifically, it argues that the constitution allows lawmakers to amend voter-approved initiated statutes only if their changes “facilitate” the initiative without in any way limiting or restricting it. The Essay then considers how this framework would apply to the most recent statutory initiatives Ohioans have approved: the 2023 marijuana legalization law and a 2006 indoor smoking ban.
“Ohio AG Must Approve Qualified Immunity Measure Summary”
Ohio’s attorney general must approve a desired summary of a ballot measure that would make it easier to sue police and government officials, a federal judge ruled Friday.
The enforcement by Attorney General Dave Yost (R) enforcement of a law that says summaries of proposed constitutional amendments must be “fair and truthful” likely violated the Ohio Coalition to End Qualified Immunity’s free-speech rights, Senior Judge James L. Graham of the US District Court for the Southern District of Ohio said.
The judge’s preliminary injunction ordered Yost to immediately submit the disputed summary to the Ohio Ballot Board for review, the next step before the group can collect the signatures necessary to place its measure on this year’s ballot. The burdens imposed Yost’s enforcement of the law, which includes eight summary rejections, don’t justify the imposition on the group’s free-speech rights, Graham said.
“As applied, the Attorney General’s denials of plaintiffs’ summaries reached a level of hypercorrectness which went beyond ensuring that citizens could ascertain what they were being asked to support,” Graham wrote, adding that Yost “has played the role of an antagonistic copyeditor, striking plaintiffs’ work on technical grounds.”…
“REPORT: ERN’s Groundbreaking Report Identifies Partisan Abuses of Ballot Initiatives and Proposes Nonpartisan Solutions”
A groundbreaking new report from the Election Reformers Network (ERN) shows how state legislatures and elected officials have manipulated the ballot initiative process to stymie the will of voters in many states across the country. The report, Partisan Control of Ballot Measures: How to Stop Manipulation of Citizen Initiatives, was released February 3, 2025.
From 2010 to 2023, state legislatures amended or repealed more than 20% of voter-approved initiatives. In addition, partisan officials, such as secretaries of state and attorneys general, have used their control of ballot language, fiscal assessments, and signature verification to mislead voters or block measures from reaching voters. And, the report finds, the controversial actions are growing increasingly blatant.
“The problem is clear. States that have given voters the right to advance ballot initiatives need to protect that right against abuses by elected officials,” said ERN Executive Director Kevin Johnson. “The will of the majority has been thwarted many times in many states. For voters, these abuses seem to prove system is rigged against them. For politicians and political parties, win-at-all-costs is the new and dangerous imperative.”
Abuses have occurred in blue states and red. One of the most egregious examples occurred this year in Ohio, where Issue 1 proposed an independent redistricting commission. when Secretary of State Frank LaRose used his control of the state ballot board to write a title and summary that completely misled voters. For a measure intended to “ban partisan gerrymandering,” LaRose’s approved language described. a commission “required to gerrymander.”
“Election Day has long passed. In some states, legislatures are working to undermine the results.”
The AP notes a variety of ways in which legislatures may push back.
“Why Voters Rejected Election Reform”
Russell Berman digs in to the reform measures on the 2024 ballot, in The Atlantic.
“The new question ballot-measure pollsters have to ask”
Politico highlights something California voters saw for the first time this year: 5 supporters and 5 opponents for each ballot measure, right on the ballot.
6th Circuit Issues Decision in Brown v. Yost
The Sixth Circuit (with one concurrence) has ended the appeal of the district court’s denial of a preliminary injunction on grounds of mootness.
Background from the opinion, “This appeal arises from a ballot proposal initiated by Cynthia Brown. In February 2023, she sought to amend the Ohio Constitution to eliminate governmental immunities or defenses in certain state-law causes of action. That month, she submitted her proposed amendment and summary to the Attorney General. He rejected the summary as not ‘fair and truthful.’ In total, she has tried and failed eight times to obtain his approval.
[After unsuccessful efforts in the state courts,] Brown turned to federal court for relief. She sued the Attorney General in district court, alleging that Ohio’s initiative procedures violate the First Amendment facially and as applied” and applied for a preliminary injunction. The district court denied that motion and she appeal.
“Arizonans Defeat Three GOP Measures That Would Have Restricted Their Voting Power”
Republican lawmakers in Arizona placed a slew of constitutional amendments on the ballot this fall to limit the recourse available to voters to hold politicians and courts accountable and to take matters into their own hands. Arizonans on Tuesday rejected those proposals.
They voted down Prop 137, which would have largely ended judicial elections in the state and frozen in place the state supreme court’s current conservative majority. They also rejected Prop 134 and 136, which would have severely limited direct democracy by making it far tougher to qualify a measure for the ballot.
All three measures lost handily, with Prop 137 going down by the largest margin. With some ballots remaining to be counted, it trails 77 to 23 percent as of publication.
Arizonans on the same day approved an initiative to protect abortion in the state, overturning a 15-week ban GOP lawmakers adopted in 2022. This measure was placed on the ballot through a citizen-led effort, precisely the sort of organizing that would have become prohibitively difficult in the future if Prop 134 and 136 had passed.
“Anti-Gerrymandering Groups Warn That Ohio’s Ballot Language Is Misleading Voters”
New at Bolts.
Federal District Court Issues TRO Barring the State of Florida from Threatening TV Stations That Air Advertising Supporting Abortion Rights Amendment
By threatening criminal proceedings for broadcasting a “political advertisement claiming that current Florida law does not allow physicians to perform abortions necessary to preserve the lives and health of pregnant women,” ECF No. 1-1 at 2, Defendant has engaged in viewpoint discrimination. The letter sent by the Department of Health to broadcasters claimed that Plaintiff’s ad violated Florida’s sanitary nuisance statute because, “if believed, [it] would likely have a detrimental effect on the lives and health of pregnant women in Florida.” Id. at 3. Defendant would not be able to conclude that the ad may have a detrimental effect on the lives and health of pregnant women in Florida without reference to the particular view taken by the speaker—namely, that “Florida has now banned abortion even in cases like mine.” Id. at 2, n.1.
Even if the Department of Health’s actions here did not amount to viewpoint discrimination, where a government uses the “threat of invoking legal sanctions and other means of coercion . . . to achieve the suppression” of disfavored speech, it functionally creates “a system of prior administrative restraints” that bears “a heavy presumption against its constitutional validity.” Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, 70 (1963). A government official “cannot do indirectly what [he] is barred from doing directly: . . . coerce a private party to punish or suppress disfavored speech on [his] behalf.” Nat’l Rifle Ass’n v. Vullo, 602 U.S. 175 (2024). The present case bears all the hallmarks of unconstitutional coercion that the Supreme Court identified in Bantam Books and Vullo.
“Missouri High Court Restores Abortion Measure to Ballot”
The Missouri Supreme Court on Tuesday rejected a bid to strike a question on the November ballot that will ask voters whether to establish a right to abortion in the State Constitution.
The seven-member court handed down its one-page ruling less than three hours before the state’s deadline for printing ballots for absentee voters. The ruling capped a furious few days of legal maneuvers, as anti-abortion groups and state Republicans made a last-ditch effort to stop the ballot amendment.
“Today’s decision is a victory for both direct democracy and reproductive freedom in Missouri,” Rachel Sweet, the campaign manager for the coalition backing the measure, Missourians for Constitutional Freedom. “This fight was not just about this amendment, it was about defending the integrity of the initiative petition process and ensuring that Missourians can shape their future directly.”
The four anti-abortion advocates who tried to strike the measure said in a statement that the court had “turned a blind eye” to their arguments that abortion-rights groups did not follow constitutional procedures when they circulated petitions to sponsor the amendment.
“Police are questioning Florida voters about signing an abortion rights ballot petition”
State police are showing up at Florida voters’ homes to question them about signing a petition to get an abortion rights amendment on the ballot in November, and a state health care agency has launched a website targeting the ballot initiative with politically charged language.
Critics say they’re the latest efforts by Florida’s Republican elected officials to leverage state resources to try to block the abortion rights measure, moves which some Democratic officials argue could violate state laws against voter intimidation.
“Ron (DeSantis) has repeatedly used state power to interfere with a citizen-led process to get reproductive freedom on the ballot,” Florida Democratic Party Chair Nikki Fried told reporters on Monday. “This is their latest desperate attempt before Election Day.”
The ballot initiative known as Amendment 4 would enshrine abortion rights in Florida law. If approved by 60% of voters, the procedure would remain legal until the fetus is viable, as determined by the patient’s health care provider….
Isaac Menasche, one of nearly a million people who signed the petition to get the measure on the ballot, said a law enforcement officer knocked on his door last week in Lee County in southwest Florida to ask him about signing it.
The officer said the questioning was part of an investigation into alleged petition fraud, the Tampa Bay Times reported.
“I’m not a person who is going out there protesting for abortion,” Menasche told the newspaper. “I just felt strongly, and I took the opportunity when the person asked me to say, ‘Yeah, I’ll sign that petition.’”
“They didn’t submit a photocopy that wasn’t required; Why abortion won’t be on the Arkansas ballot in November”
I missed this from Adam Unikowsky back on Aug. 25:
On August 22, 2024, the Arkansas Supreme Court held, by a 4-3 vote, that an abortion-rights ballot initiative would not appear on the 2024 ballot. Why? It’s a confusing decision, but boiled down, it’s because when the ballot initiative sponsor submitted its petition on the due date, it failed to staple a photocopy of a document it had already submitted a week earlier. The court reached this conclusion even though (a) nothing in Arkansas law requires this photocopy to be stapled; and (b) even if this requirement existed, Arkansas law is clear that the failure to staple this photocopy is curable, and the sponsor immediately cured the asserted defect.
The Arkansas Supreme Court’s decision is wrong. Moreover, the proceedings in this case make clear that Arkansas state officials are unapologetically engaging in viewpoint discrimination, interpreting the law in one way for ballot initiatives sponsored by conservative groups and in the opposite way for ballot initiatives sponsored by progressive groups….