A unanimous Ohio Supreme Court yesterday ruled that the attempt of the legislature to add an appropriation to the congressional reapportionment bill, HB 319, did not remove the bill from Ohio’s constitutional right of a referendum.  Earlier this week, Secretary of State Jon Husted and State Attorney General Mike DeWine refused to accept the initial petition of the Ohio Democratic Party and other groups seeking to place the maps on a referendum ballot on the grounds that HB 319 contained an appropriation, and thus was not subject to a referendum.

The Ohio Constitution allows a referendum on all but certain types of laws:

Laws providing for tax levies, appropriations for the current expenses of the state government and state institutions, and emergency laws necessary for the immediate preservation of the public peace, health or safety, shall go into immediate effect. Such emergency laws upon a yea and nay vote must receive the vote of two-thirds of all the members elected to each branch of the general assembly, and the reasons for such necessity shall be set forth in one section of the law, which section shall be passed only upon a yea and nay vote, upon a separate roll call thereon. The laws mentioned in this section shall not be subject to the referendum. — Art. II, Sec. 1d.

The Republicans in the General Assembly tried to initially pass HB 319 as an emergency measure to avoid a referendum, but as the Ohio Constitution states, it takes a supermajority of the General Assembly to declare a bill an emergency measure.  The House Democratic Caucus said, “Hmm,  you want our vote for a map that has been blasted statewide as creating only two arguably competitive districts, with ridiculous maps that give Republicans an almost guarantee to hold ten of the sixteen congressional district in Ohio, despite the fact that there are millions more registered Democrats than Republicans in the State?”  Yeah, no thanks.  

So the Senate Republicans had to add an appropriation in order to make HB 319 constitutionally exempt from a referendum.

The Ohio Supreme Court didn’t buy that simply adding an appropriation to a bill exempts it from a referendum as it has recognized that such appropriations are sometimes added to a bill for no other reason that the legislature wants to frustrate the voters’ ability to check their legislative power with the constitutional right of a referendum.

The Ohio Supreme Court issued a writ of mandamus compelling Secretary of State Jon Husted “treat Sections 1 and 2 of Sub. H.B. 319 as being subject to the constitutional right of referendum” and to accept the Ohio Democratic Party’s petition summary.  Here’s the full text of the Court’s opinion, including Justice Lanzinger’s interesting concurrence.   Sections 1 and 2 of the bill is the map.

What does this mean?  Well, it means the Republican legislature’s attempt to avoid a voter referendum failed and was declared unconstitutional.  It’s means that the Ohio Democratic Party must get enough signatures within 90 days of Sept. 26, 2011 (i.e. Christmas) to place the bill on the November 2012 ballot.  So for Ohio Democrats, Christmas comes early this year.  At stake?  The possibility of a  more competitive Congressional map in the battleground State of Ohio.

But will voters actually ever vote on HB 319?  Most likely not.  The repeal of HB 319 would result in mass chaos.  Ohio must have a congressional map in place for the November 2012 elections that is not going to be repealed in that election since the number of Congressional seats are changing and the districts must be established.  ODP Chairman Chris Redfern is using the threat of a referendum to force the Republican-controlled legislature back to the drawing board to draw a fair enough map that the Democrats will agree to pass as an emergency measure.

The Republicans, Husted in particular, said that they would change how maps were drawn to be more competitive next time, so they may get their chance to prove it before the 2020 reapportionment cycle.  The only hopes the Republicans have is that either a) ODP doesn’t get a sufficient number of signatures in time, or b) they take their chances with a referendum election and hope they can convince voters that the mass chaos a repeal would cause outweighs the incredible partisan self-serving the map they drawn harms the political environment.   That’s probably too risky for their blood. [UPDATE:]  I should never write a post while watching Saturday Disney cartoons with my son (curse you, Perry the platapus!).  Of course, the second the petition is submitted with enough valid signatures the map is invalid for the 2012 election.  That means the Republican General Assembly has to, at a minimum, pass a new map.  The old map can’t stay in place because the number of districts have changed.  So they’ll have to get it passed as an emergency measure, which will require the two-thirds supermajority.  The question then is, would the GOP push for a supermajority for a “temporary” map that would only exist for the 2012 and be automatically voided if the referendum fails or not.  And will the Democrats go along with only a temporary map.  So, pretty much the only hope the GOP has for keep that map alive is that the Democrats don’t get enough signatures on the petition, even though every Democrat and independent should know that whether there will or won’t be a referendum, a signature on the petition is essentially a vote for a less gerrymandered congressional map in the first place.  And no, this does not impact the state legislative districts.

So, it’s fair to say that the GOP reapportionment map that would almost guarantee the GOP ten out of the sixteen districts in Ohio is on life support, and if in the midst of the Issue 2 campaign, Thanksgiving, and the approaching Christmas season the Democrats can get mobilized enough to get the signatures necessary, the GOP is going to be forced into a bipartisan compromise on the congressional re-apportionment map. 

As Vice-President Joe Biden would say, “This is a BFD.”