These petitioners for a local Community Bill of Rights in Ohio have been thwarted by pre-election lawsuits and administrative wrangling by Ohio Secretary of State Jon Husted. (Photos: Simon Davis-Cohen)

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Ohioans are not nearly as conservative as their gerrymandered state legislature might have one think. To fight back, many progressive Ohioans are going local to make gains on issues like the minimum wage and fracking. For this reason, the local ballot initiative process — by which citizens write, petition for and vote on legislation — has taken on increased significance. But after years of local battles, the future of this basic mode of resistance is in jeopardy.

This September, county-level “community bills of rights” in Medina, Portage, Athens and Meigs were removed from these Ohio counties’ respective ballots, despite all four gathering enough signatures to qualify for the ballot. The bills of rights would have banned fracking-related projects, established enforceable rights for ecosystems and carved out powers for localities to improve state protections for health, safety and welfare. Some, like Medina’s, would have halted construction on the fiercely contested NEXUS fracked-gas pipeline.

But as a result of the removal of these measures from local ballots, no votes will be cast. They were removed by county boards of elections working closely with the Secretary of State to apply stringent pre-election requirements.

It is a virtual repeat of 2015, when the Ohio Supreme Court sided with Secretary of State and gubernatorial hopeful Jon Husted in a decision that effectively pulled four county-wide initiatives — in Medina, Fulton, Meigs and Athens counties — from their ballots, ahead of the November 2015 elections.

The 2015 court battle came after Husted claimed “unfettered authority” to determine the legality of local initiatives before they go to a vote. It was a baseless legal argument that flew in the face of established legal precedent that defines a secretary of state’s role in the ballot process as procedural, and which protects petitions from legal or constitutional challenges before citizens get a chance to vote. The court struck down Husted’s proclamation but sided with him on a technicality — and the initiatives were removed.

Decisions, such as this, which sidestep the democratic process, maintain predictable “investment climates” for the oil and gas industry, and perpetuate the illusion of consensus and the notion that somehow issues regarding the oil and gas industry are democracy-immune. The industry — wary of a domino effect — does not want the thought that oil and gas extraction can be governed by citizen-crafted law to spread, for fear that if it does, it will do so rapidly. The very concept of putting fracking to a vote is dangerous to the oil and gas companies’ agenda. It is why they worked so hard to squelch attempts at 2016 statewide anti-fracking ballot measures in Colorado and Michigan.

Legal Technicalities

In 2015, the court agreed with Husted that the measures failed to define a new “form of government,” a requirement for new county charters, which all the initiatives proposed.

But little information was given on how future petitions might satisfy the “form of government” requirement. As I reported in an August article for DeSmogBlog, Ohio’s county boards of elections and secretary of state give little guidance on how petitioners can satisfy this “form of government” standard, as set out in the Ohio Constitution. When queried by DeSmog, the secretary of state’s office gave no comment on this.

This is not the first fracking-related standoff in recent Ohio history. Since 2012, Ohioans working with the Community Environmental Legal Defense Fund have passed community bills of rights in Yellow Springs, Broadview Heights, Oberlin and Athens, and proposed over a dozen more that either failed at the ballot or were removed from the ballot before votes could take place.

Heading into 2016, activists, seemingly undeterred by the 2015 setback, crafted new initiatives with painstaking attention to detail on the “form of government” requirement. Some went so far as to explain how county coroners would be compensated under the new charters.

But their efforts were not enough to satisfy Husted or the local county boards of elections. Ultimately, all four county measures were removed from the ballot for not delineating every single specific responsibility of all county officials.

Husted appoints all the county boards of elections. In one county, he tapped Ohio Gas Association President Jimmy Stewart. And this spring, Husted organized a fundraiser with the Ohio Oil and Gas Association. Husted has also earned infamy for his attacks on early voting and trimming of the state’s voter registration rolls.

Taking the Fight to the Ohio Supreme Court

After Husted broke a 2-2 tie on the Medina County Board of Elections in favor of removing the anti-fracking county ballot measure, petitioners appealed. (The other three county boards of elections each voted 4-0 to strike their measures from the ballot.) In a brief to the Ohio Supreme Court, the petitioners’ attorney pointed to the 2015 decision that read, “election officials serve as gatekeepers” and argued that the gatekeeper function “does not authorize examining the substance of the petition’s subject for constitutional or other legal validity.”

The “form of government” requirement may sound like an administrative, procedural issue within the secretary of state’s pre-election authority, but it is in fact a matter of constitutionality — it comes from Article X of the Ohio Constitution.

The petitioners’ attorney has argued that removing the petitions would violate “decades of precedent which prohibit pre-election inquiries into the substance of an initiated ballot proposal.” Established law clearly explains that, “the proper time for an aggrieved party to challenge the constitutionality of (a proposed) charter amendment is after the voters approve the measure, assuming they do so.”

In other words, when in doubt, let the democratic process take place.

But in its slip decision, the court wrote, in reference to the 2015 ruling: “We have previously determined that it is within the secretary of state’s discretion to determine whether a proposed county charter is invalid on the ground that it does not set forth the form of government.”

The court appears to be using a form of doublespeak. On the one hand, the court implicitly supports the long-held precedent that protects petitions from pre-election constitutional challenges. On the other hand it leaves to the secretary of state the power to rule on whether petitions satisfy the “form of government” requirement, pre-election, even though doing so requires interpreting the Ohio Constitution, a task typically reserved for judges.

Nonetheless, the court has spoken, and no votes will be cast.

“Friend of the court” briefs were filed in favor of avoiding the democratic process by local, regional and state chambers of commerce, an economic development corporation, the Affiliated Construction Trades Ohio Foundation and the American Petroleum Institute.

In response, the petitioner’s attorney wrote that the state and the industry “must accept the reality that citizens are fed up with having Ohio politics dominated by the oil and gas industry. People are feeling powerless within a paralyzed system and realize that they must act on their own behalves to change county government as they see fit, and as is their right to do.”

In interviews, petitioners appear undeterred, and frankly unsurprised by Husted, the boards of elections and the court’s actions. They tell me that they are regrouping. In the meantime, city-level community bills of rights in Youngstown and Waterville, which were not affected by the legal proceedings, will be put to a vote this November 8. Cleveland will vote on a minimum wage hike in May 2017.

Even if these laws were allowed on the ballot and passed by voters, they would likely be struck down by the state supreme court. In Ohio, the state government has claimed total authority over fracking and preempted local governments from passing laws affecting the issue. (A 2016 written opinion by the state attorney general suggests the same is true for minimum wage.) So why are citizens spending thousands of hours to fight back with their local governments?

For one thing, local measures are one of the few dwindling democratic outlets still available, but more strategically, even if the laws were struck down, they would make political waves. They would force a confrontation between democracy and the legal structures that privilege industry.

To avoid the indignation that comes when an industry and state government override democratic votes, and the snowballing of civic-lawmaking, pre-election lawsuits and administrative wrangling to pre-empt voting altogether are becoming the norm.