I almost feel sorry for poor little Senate Bill 5, a victim of grotesque political scientific experiments by its own creator. First, they considered cloning parts of Senate Bill 5 into the State budget bill. Now, the Columbus Dispatch reports that Governor Kasich and other SB 5 supporters are putting pressure on Secretary of State Jon Husted and other members of the Ohio Ballot Board to divide the SB 5 referendum into multiple issues, as opposed to a straight up or down vote on Senate Bill 5. The hope is that some provisions of the bill would survive referenda this way.
The other reason is to create massive confusion and complicate We Are Ohio’s campaign. Instead of having to wage one issue campaign, it’ll be forced to wage multiple ones.
The Dispatch notes the 2005 Reform Ohio Now (RON) constitutional amendments as a precedent. That’s pretty weak tea. The RON issues were constitutional amendments, and the issue was subdivided because the Board felt it contained two separate issues that needed to be divided to AVOID voter confusion. The RON Amendments sought to create new law. The We Are Ohio campaign is seeking to repeal a legislative act, not pieces of it.
And therein lies the material difference. A referendum such as the one the We Are Ohio campaign is undergoing seeks to place a legislative act to voter review. A sort of “instant replay” of legislating. The express intent of the referendum, in language that has already been certified by the Secretary of State and the Ohio Attorney General is a referendum of the whole, not parts.
Art. II, Sec. 1c of the Ohio Constitution concerning referenda states as follows:
The second aforestated power reserved by the people is designated the referendum, and the signatures of six per centum of the electors shall be required upon a petition to order the submission to the electors of the state for their approval or rejection, of any law, section of any law or any item in any law appropriating money passed by the general assembly.
While this provision does create the alternative of a referndum on just “part of the law” the choice of whether a legislative act is submitted in whole or in part to a referendum is clearly left to “the people,” not the political figures at the Ohio Ballot Board. “The people” in this instance refers to the organizers of the referendum effort and the signatories to their petition. Given that it is widely expected that the We Are Ohio campaign will turn in over a million signatures in a pomp and circumstance parade next Wednesday in Columbus, the Ohio Ballot Board should consider whether dividing SB 5 into multiple issues frustrates the intent of those signatories who believed that they were signing a petition to put the whole on the ballot on an up or down vote, not referendum by piecemeal. Jon Husted needs to carefully weigh the wisdom of spitting in the face of over 1 million Ohio petition signers.
The reason Ohio has given the people the power of the repeal of legislation by referendum is to serve as a check and balance on the elected legislature before the next election. Subdividing SB 5 into pieces frustrates that intent because it gives the voters of Ohio a luxury that the legislature didn’t give itself. SB 5 was passed, we are told, because Ohio needed a comprehensive set of collective bargaining reforms. When it was passed, it was passed on an up and down vote. Neither house of the General Assembly allowed the vote to make SB 5 law be done piecemeal, it was yes or no on the total package. How can a referendum be an effective check on the legislature if the Ohio Ballot Board can intervene and muddle the ability of the voters to give a clear verdict?
Now we’re told that the Governor is willing to sacrifice some components of it. Which ones, and why then did he do something about these provisions at the time?
Given that members of the legislature decided to pass SB 5 on an up and down vote, then why shouldn’t a referendum on that decision be any less comprehensive? If the Governor believes SB 5 is severable, then why did he insist it all pass now, pass immediately, and pass together?
The Ohio Ballot Board must tread lightly and remember its mandate (and not exceed it.) The organizers of the We Are Ohio campaign have made the decision that they wish to take the political risk of an all or nothing referendum on Senate Bill 5. The signatories of their petitions, by law, were given a petition that read that signing this put the entire bill to an up or down vote. Nothing in that petition suggested voters would be given repeal by piecemeal instead.
The Ohio Ballot Board should remember that the Ohio Constitution gives the people, not the Ohio Ballot Board the power to choose the potential scope of a referendum, and tell the Governor no.
[UPDATE:] Apparently, the attorneys at the Ohio Secretary of State’s office agrees with my interpretation of the law and that there is a material distinction between a constitutional amendment and a referendum. According to the Columbus Dispatch, Secretary of State Jon Husted uneqivocally stated this morning that the Ohio Ballot Board CANNOT split the SB 5 referendum into multiple issues.
“The Ballot Board cannot divide a referendum up into multiple issues,” Husted’s spokesman Matt McClellan said in an e-mail. “Only initiated petitions, such as Citizen-proposed Statutes or Citizen-proposed Constitutional Amendments may be divided up by the Ballot Board.”
Secretary of State Husted made the proper (and only legal) call. Still, he is to be commended for so quickly putting to rest any question about this issue, rather than letting resentment over this plan build unnecessarily.
So, that’s that, then…right?