Six of eight contested provisions in the ballot language for a proposed state constitutional amendment to alter the drawing of legislative and congressional districts can remain as is, while two must be revised, the Supreme Court of Ohio ruled today.
In a 4-3 per curiam opinion, the Supreme Court found that most of the Ohio Ballot Board’s language describing proposed Issue 1 for the Nov. 5 general election ballot is consistent with the measure's full text. Citizens Not Politicians, a group that proposed the issue, contested eight of the 10 summary points appearing on the ballot language and the title of the ballot language itself, both of which will appear before voters.
The opinion noted that the Court can only invalidate the board’s language if it finds the wording would “mislead, deceive, or defraud the voters.” The Court majority found that most of the ballot board’s amendment’s summary and title were not misleading and did not need to be revised.
The opinion stated that Citizens Not Politicians describes itself as “a coalition of people and organizations that seeks to end gerrymandering in Ohio by removing politicians from the redistricting process, with the hope of achieving fair and impartial state legislative and congressional districts through an open and independent process.” Among other features, Issue 1 proposes to create a 15-member redistricting commission responsible for adopting redistricting plans.
In a 3-2 vote in August, the five-member ballot board approved the language that will appear on the ballot. The Ohio Constitution requires the ballot language to “properly identify the substance of the proposal to be voted upon” but “need not contain the full text nor a condensed text of the proposal.”
The board approved a summary of the ballot language, which contains 10 sections describing the issue. Citizens Not Politicians sought a writ of mandamus from the Supreme Court, asking it to direct the ballot board to rewrite eight sections.
Today, the Court directed revisions in section 5 to explain when a lawsuit may be filed to challenge a redistricting plan. It also required changes to section 8 regarding public input on map-making.
Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, and Joseph T. Deters joined in majority opinion.
In a separate concurring opinion, Justice Fischer discussed section 2 of ballot language stating that new commission is “required to gerrymander boundaries…to favor either of two largest political parties….” He noted majority relied on a 1986 U.S. Supreme Court ruling where Justice Sandra Day O’Connor described “bipartisan gerrymander.” Justice Fischer wrote use of “gerrymander” is accurate because amendment requires commission create districts ensuring certain partisan outcomes impacting independent and third-party voters.
In dissenting opinion, Justice Michael P. Donnelly wrote ballot board forbidden from using persuasive language supporting or opposing amendment. He added board can approve separate argument against proposed amendment.
Referencing recent decision about injury lawsuit from swallowing chicken bone within "boneless" wing, Justice Donnelly stated: “Given that four members in majority today apparently think ‘boneless’ means ‘you should expect bones,’ … I’m sure it comes as no great surprise they think constitutional amendment to ‘ban partisan gerrymandering’ means ‘require[] gerrymander[ing].’”
He wrote majority extracts terms like “gerrymandering” and “partisan political outcomes,” divorcing them from context allowing misleading ballot language contrary to letter/spirit proposed amendment.
In separate dissenting opinion, Justice Jennifer Brunner wrote board chose persuasive rather than neutral explanatory language about amendment provisions.
“What board has done here is tantamount performing virtual chewing food before voters taste decide like or not,” she wrote.
Justice Brunner also wrote stating amendment would “require gerrymandering” is “misleading deceitful fraud upon voters.” She proposed rewriting most ballot language calling for nearly complete redrafting what perhaps most stunningly stilted ever seen by Ohio voters.
Justice Donnelly joined Justice Brunner’s opinion; Justice Melody Stewart joined both opinions by Justices Donnelly/Brunner.
2024-1200 State ex rel Citizens Not Politicians v Ohio Ballot Bd Slip Opinion No 2024-Ohio-4547
Please note: Opinion summaries are prepared by Office Public Information for general public/news media; not prepared every opinion but noteworthy cases only; not considered official headnotes/syllabi court opinions; full text available online.