FOR IMMEDIATE RELEASE
Community Environmental Legal Defense Fund
Oral arguments presented in civil rights appeal in the critical case for direct democracy arising from suppression of Rights of Nature and local democracy petitioning.
Cincinnati, OH: Oral arguments took place last week in Beiersdorfer v. LaRose, et al. (No. 20-3557), a case that begs fundamental questions about the relationship between people and their government.
The Community Environmental Legal Defense Fund’s Terry Lodge presented the arguments in support of the plaintiffs. Full remarks can be heard on the federal Sixth Circuit Court of Appeals YouTube page (beginning at 1:56:45): https://www.youtube.com/watch?v=5mj1NcrFeCQ
Historically, in Ohio, the state constitution has treated ballot initiatives the same as legislation proposed and passed by the legislature. If the legislature passes an unconstitutional law, and it is challenged, the judiciary steps in to remove the unconstitutional provisions of the law. Likewise, if voters adopt an unconstitutional ballot measure, and it is challenged, the courts step in to remove the unconstitutional provisions.
However, courts do not control what bills the legislature can vote on. They can only rule on laws once they become law (not before they are voted on). This principle has also existed for ballot measures in Ohio for over a hundred years; as long as petitioners collect enough signatures and fill out forms properly, their measure is supposed to be placed on the ballot and put to a vote.
Meddling in the Democratic Process
In 2012, Rights of Nature and local lawmaking that challenged core corporate private property doctrines started popping up across Ohio. Corporate lobbies like the American Petroleum Institute, Ohio Chamber of Commerce and Ohio Oil and Gas Association started to oppose these measures. (The Chamber eventually drafted an anti-Rights of Nature law that was snuck into a budget bill and passed without any debate or public comment in the Ohio Legislature to try to hinder the grassroots movement.)
Corporations argued the local measures were unconstitutional and should not be allowed on the ballot. These arguments had varied success in obstructing measures and tying them up in court; the Ohio Supreme Court sometimes ruled against them, because they flew in the face of established precedent and protections for initiative by the people.
Then, in 2016, the Ohio Legislature secretly passed a lame-duck foreclosure bill (HB 463) that included a few paragraphs up-ending the initiative petitioning process, and ultimately the people’s fundamental and constitutional relationship to their government.
This bill granted the Ohio Secretary of State and appointed local county boards of election the novel power to strike proposed ballot measures from the ballot if they perceived an initiative to be illegal or unconstitutional. The tiniest real or imagined illegality, according to this new law, which invites a free-floating inquiry, can be used to rule a measure off the ballot.
This not only granted judicial powers to the executive branch, it degraded the status of “the people” as equals to the Ohio General Assembly in the creation and passage of new laws. Direct democracy proposals could now be denied a vote through this process, something that has never been true for bills enacted by the legislature; power was removed from “the people,” acting as lawmakers, and consolidated in the executive, in the form of a veto of any inconvenient or politically oppositional idea.
Below are quotes from the oral arguments:
“The problem with the Ohio scheme is that in a very dramatic change after a century of over two dozen state supreme court decisions that repeatedly held and consistently held without exception that you may not, that election officials, may not question the substance of [a proposed] initiative.”
“They are trying to make procedural, that which is substantive; allowing the state to decide which initiatives go onto the ballot and which ones don’t completely uproots the purpose of the initiative. It lets the fox guard the henhouse. The people themselves get to decide which initiatives go on the ballot [by signing petitions]….the initiative power is dead if the government gets to decide.”
An Unconstitutional Bill?
“Substantive Due Process is violated when appointed, and not necessarily legally trained, elections officials act on their own subjective perception as to whether something is unconstitutional.” [This point was accompanied by a discussion of how the scheme from HB 463 removes access to “severability” for proposed ballot measures. Typically, if one part of a law is unconstitutional, that portion can be removed — severed — by the court, while the rest remains. The unilateral deletion of proposed ballot measures from a ballot denies people access to severability. There is another issue of due process in the fact that rules seem to change from one county to the next, or one year to the next.]
Separation of Powers?
HB 463 “transferred power away from the judiciary to the executive branch, elevating the executive branch role to more than simply making sure there are enough signatures, that the forms are filled out correctly, and that the matter could be certified for the ballot. It actually gave local elections officials, who are unaccountable [to the people] and not elected, the power to strike things from the ballot based on their subjective perception of whether or not it would be lawful if passed….HB 463 must be stricken.”
Creating Privileged Access to Ballot for Constitutional Measures
If measures are clearly constitutional, HB 463 allows unelected political appointees the power to force any grassroots group to appeal through the courts any decision to remove constitutional measures from the ballot. These plaintiffs are lucky to have a nonprofit law firm like CELDF to offer pro-bono and cheap representation, others are not, and our democracy should not rely on nonprofits to function correctly! This issue arises for blatantly constitutional measures.
Stakes for Rights of Nature and New Ideas Emerging Through Democracy
Plaintiffs from seven Ohio counties, representing Rights of Nature laws and other measures protecting local water, ecosystems and human health from corporate activities, filed this appeal. The measures would have outlawed practices such as hydraulic fracturing, fracked gas pipelines, frack waste injection wells, and infused community control over harmful corporate practices. One proposal aimed to control corporate campaign contributions in local elections.
The opposition argues that this is not a federal issue. They argue that if state officials systematically violate state law to push people out of the democratic process, there’s nothing federal courts can do. They argue the plaintiffs “failed to identify a fundamental right deeply rooted in our nation’s history.”
A basic tenet of democratic social contract theory on which this country was supposedly founded is that all lawmaking power supposedly flows from the consent of the People, whether through legislatures or to the People themselves in the form of initiative.