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.