Brown v. Yost

103 F.4th 420

Cynthia BROWN; Carlos Buford; Jenny Sue Rowe, Plaintiffs-Appellants, v. David YOST, in his official capacity as Ohio Attorney General, Defendant-Appellee.

No. 24-3354

United States Court of Appeals, Sixth Circuit

Decided and Filed: May 29, 2024

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 2:24-cv-01401—James L. Graham, District Judge.

ON BRIEF: Mark R. Brown, CAPITAL UNIVERSITY, Columbus, Ohio, Oliver Hall, CENTER FOR COMPETITIVE DEMOCRACY, Washington, D.C., for Appellants. T. Elliot Gaiser, Katie Rose Talley, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Before: MOORE, BUSH, and MATHIS, Circuit Judges.

MOORE, J., delivered the opinion of the court in which MATHIS, J., joined. BUSH, J. (pp. 446-57) delivered a separate dissenting opinion.

OPINION

KAREN NELSON MOORE, Circuit Judge.

To get a proposed constitutional amendment on the Ohio ballot, petitioners must submit their amendment, a summary of their amendment, and one thousand qualified supporting signatures to the Ohio Attorney General. The Ohio Attorney General must then determine if the summary is a fair and truthful statement of the proposed amendment and, if so, certify the summary. Only once the Attorney General certifies the summary may petitioners begin collecting the approximately 400,000 signatures necessary to put the proposed amendment on the ballot.

Plaintiffs-Appellants ("Plaintiffs") are Ohio voters who, together, seek to amend the Ohio Constitution through a ballot initiative. Pursuant to Ohio law, Plaintiffs drafted their amendment and summary, collected their one thousand qualified supporting signatures, and filed it with the Ohio Attorney General, David Yost. On at least six occasions, Yost declined to certify Plaintiffs' summary. After Yost's most recent decision denying certification, Plaintiffs turned to the Supreme Court of Ohio for review. When the state supreme court declined to grant expedited review, Plaintiffs filed a complaint in federal district court seeking injunctive relief. In their complaint, Plaintiffs alleged that Yost's enforcement of Ohio Revised Code § 3519.01 functions as an unconstitutional obstacle to their ballot access and their ability to speak about and advocate for their proposed amendment as they wish, in violation of the First and Fourteenth Amendments. The district court denied Plaintiffs' motion for preliminary injunctive relief. For the reasons that follow, we REVERSE the district court's order and GRANT Plaintiffs' motion for preliminary injunctive relief. We also DENY as moot Plaintiffs' motion for an injunction pending appeal.

I. BACKGROUND

A. Ohio's Ballot Access Scheme

The Constitution of the State of Ohio reserves to the people the power "to propose amendments to the constitution and to adopt or reject [such amendments] at the polls." Ohio Const. art. II, § 1. The Ohio General Assembly may pass laws "to facilitate [the] operation" of citizen-initiated constitutional amendments, but the General Assembly may not "limit[ ] or restrict[ ]" the power reserved to the people. Id. art. II, § 1g. To facilitate the operation of citizen-initiated constitutional amendments—and to administer the right to have those amendments "adopt[ed] or reject[ed] . . . at the polls," id. art. II, § 1, the Ohio General Assembly developed an amendment-initiative process, see Ohio Rev. Code § 3519.01.

Ohio law requires that citizens take several steps before they can place a proposed constitutional amendment on the ballot. The individuals proposing the amendment ("petitioners") must first form a committee to "represent them in all matters relating to [their] petitions." Id. § 3519.02. Petitioners must then submit the proposed amendment, a summary of the amendment, and 1,000 supporting signatures to the Ohio Attorney General for review. Id. § 3519.01(A). "Within ten days after the receipt of the written petition and the summary of it, the attorney general shall conduct an examination of the summary." Id. The Attorney General must determine if "the summary is a fair and truthful statement of the proposed . . . constitutional amendment." Id. "This factual determination is the extent of the role and authority of the Attorney General." State ex rel. Barren v. Brown, 51 Ohio St.2d 169, 365 N.E.2d 887, 888 (1977). If the summary is fair and truthful, the Attorney General "shall so certify," and then forward the petition to the Ohio ballot board for approval. Ohio Rev. Code § 3519.01(A). Following the board's review and approval, see id. § 3505.062(A), the proposed amendment again returns to the Attorney General who "shall then file with the secretary of state a verified copy of the proposed . . . constitutional amendment together with its summary and the attorney general's certification," id. § 3519.01(A).

Only after the Attorney General files the proposed amendment, summary, and certification with the Secretary of State may petitioners create an "Initiative Petition" and begin collecting signatures in support of the petition. See id. § 3519.05; see also D. 19 (Appellee Br. at 9). For a proposed amendment to qualify for placement on the ballot, petitioners must collect signatures equaling at least ten percent of the total number of votes cast for governor in the last gubernatorial election. See State ex rel. DeBlase v. Ohio Ballot Bd., 173 Ohio St.3d 191, 229 N.E.3d 13, 16 (2023) (citing Ohio Const. art. II, §§ 1a, 1g). The supporting signatures, moreover, most come from at least forty-four of Ohio's eighty-eight counties. See id. Plaintiffs-Appellants allege that this signature requirement—a requirement that they cannot begin working towards until after the Defendant-Appellee Attorney General Yost certifies their summary and amendment—amounts to "more than 400,000 signatures." See D. 18 (Appellant Br. at 13).

Once petitioners collect the requisite signatures, they must file those signatures with the Secretary of State. Ohio Const. art. II, § 1a. The Secretary of State must verify the signatures and pass the petition on to the Ohio ballot board; the Ohio ballot board then certifies the ballot language for the proposed constitutional amendment. Ohio Rev. Code § 3505.062(D).

At that point, the Secretary of State will include the proposed amendment on the ballot at the next general election occurring "subsequent to one hundred twenty-five days after the filing of such petition." Ohio Const. art. II, § 1a. Stated otherwise, petitioners must file their petition with the proposed amendment and requisite signatures—plausibly 400,000 signatures here—at least 125 days before the election to get on the ballot.¹ Because the upcoming election is November 5, 2024, Plaintiffs face a July 3, 2024 deadline.

B. Judicial Review of the Attorney General's Certification Decision

Under Ohio Revised Code § 3519.01(C), aggrieved parties "may challenge the certification or failure to certify of the attorney general in the [Ohio] supreme court, which shall have exclusive, original jurisdiction in all challenges of those certification decisions." Accordingly, if the Attorney General fails to certify a summary—meaning, that a petitioner's proposed amendment fails at the first step of the ballot-access process—the petitioner can seek judicial review in the Supreme Court of Ohio. Id. Section 3519.01(C), however, fails to specify a time period for judicial review. Accordingly, the Supreme Court of Ohio's rules of practice govern.

The Supreme Court of Ohio's rules of practice recognize "the necessity of a prompt disposition of an original action relating to a pending election." Ohio S. Ct. R. Prac. 12.08(A)(1). On that basis, the rules of practice provide for expedited review of election cases "if the action is filed within ninety days prior to the election." Id. As the complaint in this case correctly notes, however, "[n]othing in the Ohio Supreme Court's rules of practice require expedited proceedings of election challenges that are filed more than 90 days before election day." R. 1 (Compl. ¶ 31) (Page ID #8). Whether to expedite proceedings outside of that ninety-day period is left to the discretion of the state supreme court. See id. (Compl. ¶ 32) (Page ID #8).

As explained above, to get a citizen-initiated constitutional amendment on an Ohio ballot, petitioners must (1) form a committee, (2) draft an amendment and summary of the amendment, and collect one thousand supporting signatures. Once the amendment and summary are drafted and a thousand signatures are collected, petitioners must have (3) their summary certified by the Attorney General, (4) their amendment approved by the Ohio ballot board, and (5) their summary and amendment sent by the Attorney General to the Secretary of State. See supra Part I, Section A. Only after accomplishing those first five steps may petitioners begin (6) collecting signatures from at least ten percent of voters in prior gubernatorial elections. If petitioners collect the requisite signatures, they must (7) file the petition and signatures with the Secretary of State. The Secretary of State then (8) passes the petition to the Ohio ballot board for approval before, the Secretary of State, finally, (9) shall place the proposed amendment on the ballot at the next general election occurring at least 125 days after receiving the petition and signatures.

Petitioners must necessarily complete the petitioning process—the first seven steps listed above—by 125 days before an election to get their proposed amendment on the ballot. See Ohio Const. art. II, § 1a. Accordingly, any challenges to the Attorney General's "failure to certify" a proposed amendment's summary at step three will take place at least 125 days before an election. Ohio Rev. Code § 3519.01(C). The Supreme Court of Ohio's expedited review of election cases "filed within ninety days prior to the election," will thus never apply to challenges to the Attorney General's failure to certify the...