Comm. to Impose Term Limits on the Ohio Supreme Court v. Ohio Ballot Bd.
Comm. to Impose Term Limits on the Ohio Supreme Court v. Ohio Ballot Bd.
Opinion
The Plaintiffs-Appellants in this case submitted a ballot initiative petition proposing to amend the Ohio Constitution in *445 two ways: imposing term limits on the justices of the Ohio Supreme Court and requiring that all laws "that apply to the people of the State of Ohio ... apply equally to the members and employees of the General Assembly." But because Ohio law contains a single-subject rule which allows initiative petitions to contain only "one proposed law or constitutional amendment," the Ohio Ballot Board split Plaintiffs' initiative into two initiatives, each containing only one proposed constitutional amendment. Plaintiffs brought this action challenging the Ohio initiative process, arguing that it violates their First Amendment rights. The district court dismissed the action, and we AFFIRM .
I.
Plaintiffs-Appellants are the Committee to Impose Term Limits on the Ohio Supreme Court and to Preclude Special Legal Status for Members and Employees of the Ohio General Assembly ("the Committee"), the three individual members of the Committee, and an individual who signed the Committee's preliminary initiative petition (collectively "Plaintiffs"). Defendants-Appellees are the Ohio Ballot Board ("the Board"), its five individual members, and Ohio Attorney General Mike DeWine (collectively "Defendants").
The people of the State of Ohio vested the state's legislative power in the Ohio General Assembly, but reserved to themselves the power to "propose amendments to the constitution and to adopt or reject the same at the polls." OHIO CONST. art. II, § 1. Persons wishing to amend the Ohio Constitution must gather one thousand signatures and submit those to the Attorney General along with both the full text and a summary of the proposed constitutional amendment. See Ohio Rev. Code § 3519.01(A). The Attorney General determines whether the summary is fair and truthful, and then sends the proposed amendment to the Board to determine whether it contains only one amendment. See id. If it contains only one amendment, the Board certifies its approval to the Attorney General, who then files a verified copy of the amendment with the Ohio Secretary of State. See id. But if it contains more than one amendment, the Board "shall divide the initiative petition into individual petitions containing only one proposed ... constitutional amendment so as to enable voters to vote on each proposal separately." Ohio Rev. Code § 3505.062(A). The Board then certifies its approval of the separated amendments to the Attorney General, who then files verified copies with the Secretary of State. See Ohio Rev. Code § 3519.01(A).
The Committee sought to amend the Ohio Constitution as follows:
Article IV, Section 6.
(D) No person shall be elected or appointed as a judge of the Supreme Court if said person, at the time of said election or appointment, has served nine or more consecutive years as a judge of the Supreme Court regardless of whether as chief justice, a justice, or a combination of the two.
Article II, Section 43.
All laws that apply to the people of the State of Ohio and its political subdivisions shall apply equally to the members and employees of the General Assembly.
The Committee submitted its petition to the Attorney General on October 26, 2016, along with the full text and a summary of the amendment and 1,573 signatures. The same day, Plaintiffs filed a lawsuit in the Southern District of Ohio seeking a temporary restraining order preventing the Board from enforcing the single-subject rule, which the district court denied.
*446 The process continued, and the Attorney General approved Plaintiffs' summary and certified the signatures. The Attorney General then submitted the proposed constitutional amendment to the Board, which announced on November 10, 2016, that it would meet to discuss the petition on November 14, 2016. At that meeting, the Board determined that the petition contained more than one proposed constitutional amendment and divided it into two individual initiatives, each containing only one proposed amendment.
Plaintiffs then brought three challenges to the Ohio initiative process. Defendants moved to dismiss these claims, and the district court granted their motion to dismiss. On appeal, Plaintiffs primarily argue that Ohio Revised Code § 3505.062(A) and the actions of the Board pursuant to that statute violate the First Amendment. Specifically, the Plaintiffs argue that the Ohio initiative process is a content-based regulation of core political speech, and that it is subject to strict scrutiny, which they argue the Ohio initiative process cannot survive.
II.
We review de novo a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6).
Marie v. Am. Red Cross
,
The Supreme Court has emphasized that "States allowing ballot initiatives have considerable leeway to protect the integrity and reliability of the initiative process."
Buckley v. Am. Constitutional Law Found.
,
The Ohio Supreme Court has also rejected an essentially identical First Amendment challenge, brought by essentially identical plaintiffs, to the Ohio initiative process. Earlier in 2016, the three individual members of the Committee brought a mandamus action in the Ohio Supreme Court challenging the constitutionality of Ohio Revised Code § 3519.01(A), which contains Ohio's single-subject rule, and Ohio Revised Code § 3505.062, which prescribes the duties of the Board and which Plaintiffs challenge here.
See
State ex rel. Ethics First-You Decide Ohio PAC v. DeWine
,
We agree with this overwhelming weight of authority that Ohio's single-subject rule is not content based. "Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed."
Reed v. Town of Gilbert
, --- U.S. ----,
Despite all this, Plaintiffs insist that Ohio's single-subject rule is indeed content based. In support of that assertion, they rely on a single line from
McCullen v. Coakley
, --- U.S. ----,
Because Ohio's single-subject rule is content neutral, we apply the more flexible
Anderson-Burdick
framework which requires us to weigh the competing interests of Plaintiffs and Defendants.
See
Ohio Democratic Party v. Husted
,
Plaintiffs' final argument that the district court erred by applying the
Anderson-Burdick
test at the motion-to-dismiss stage is meritless. Although the
Anderson-Burdick
test can at times be fact intensive, we have before affirmed dismissals of First Amendment challenges to election rules where the plaintiffs' arguments failed as a matter of law.
See, e.g.
,
Lawrence v. Blackwell
,
III.
For the foregoing reasons, we AFFIRM the judgment of the district court.
We note that ordinarily the doctrine of issue preclusion prevents losing litigants from receiving such a "second bite at the apple."
See
Scherer v. Wiles
,
Reference
- Full Case Name
- COMMITTEE TO IMPOSE TERM LIMITS ON the OHIO SUPREME COURT AND TO PRECLUDE SPECIAL LEGAL STATUS FOR MEMBERS AND EMPLOYEES OF the OHIO GENERAL ASSEMBLY, Et Al., Plaintiffs-Appellants, v. OHIO BALLOT BOARD, Et Al., Defendants-Appellees.
- Cited By
- 15 cases
- Status
- Published