A bill that started out as bipartisan election security bill took a turn this week as it went through the fast tracked legislative process during lame duck.
House Bill 74 is now heading back toward the House, after Senate Republicans added a provision Democrats opposed. The bill addresses some popular cybersecurity changes for elections and had passed the House unanimously last year. But a Senate committee added a controversial proposal that could make it harder for citizens to put forward ballot issues in the future.
That proposal would give the attorney general more authority by allowing him to refuse to approve titles of petitions and summaries for citizen-led referendums. And that could allow for longer delays in the process of putting issues before voters. This comes after the Ohio Supreme Court ordered Republican AG Dave Yost to reconsider two potential ballot issues, which he rejected based on their titles.
Senate Minority Leader Nickie Antonio (D-Lakewood) said she opposes it because citizens bring ballot proposals to voters because they disagree with how majority lawmakers are handling an issue.
“I do not believe it’s appropriate then to have one of our state offices, the attorney general, be able to make some kind of arbitrary decision about what he thinks about the title," Antonio said.
But Senate President Matt Huffman (R-Lima), who has been critical of recent citizen-led efforts on reproductive rights and redistricting, said the AG should have the power to make sure a ballot issue has a proper title.
“This makes this clear in law. I think the attorney general already would give an opinion about that but he doesn’t have the final word," Huffman said.
Huffman, who is on track to be House speaker next year, noted courts could have the final rule. And in fact, that's been the case recently.
The Ohio Supreme Court ruled earlier this fall that Yost had to reconsider two different citizen-led petitions because he didn’t have the authority to reject them on their titles. After he reconsidered, he approved both issues - one to end qualified immunity for government employees including law enforcement and another to repeal and make changes in some elections laws.
HB 74 passed the Senate along party lines, 24-7.
But do lawmakers have the authority to expand the AG’s power when it comes to ballot issues, especially since the process for referendums is prescribed in the constitution?
Steven Steinglass, Dean Emeritus of the College of Law of Cleveland State University, said the Ohio Constitutional Modernization Commission looked at the role of the AG in the referendum process. He was a member of that commission, which was established in 2011 to study Ohio's constitution and make recommendations for changes. It ended its work in 2017.
“There is a major unanswered question as to whether the review of the attorney general is consistent with the Ohio Constitution," said Steinglass.
Steinglass said because the role of the AG is unclear from the 1912 document, it would be up to the Ohio Supreme Court to decide. And after this November’s election, that court is made up of all Republicans but one.
The House still has to approve the changes made to HB 74 by the Senate.
