The US Court of Appeals for the Sixth Circuit granted an en banc rehearing on Monday for a case concerning the procedures Ohio citizens must follow to propose constitutional amendments through ballot initiatives. Such a process includes submitting the proposed amendment, a summary, and one thousand qualified supporting signatures to the Ohio Attorney General. The Attorney General assesses whether the summary is a fair and truthful representation of the proposed amendment before allowing the collection of approximately 400,000 signatures needed for ballot inclusion. More details are available in the court’s opinion.
Appellants in the case assert that Ohio Attorney General David Yost’s repeated refusal to certify their summary — on at least six occasions — constitutes an unconstitutional barrier to advocacy and ballot access as protected by the First and Fourteenth Amendments. Following their lack of success in state courts, the appellants turned to the federal district court, where their request for injunctive relief was denied. They subsequently appealed to the Sixth Circuit.
The appellate court identified the enforcement of the Ohio statute as excessively burdensome on political speech since it mandates petitioners alter their summary without review of the Attorney General’s decisions. The requirement makes it significantly challenging to gather the necessary signatures, thereby inhibiting statewide discourse on the proposed amendments. However, the court acknowledged the need to balance these burdens against Ohio’s interests in voter education, fraud deterrence, and election integrity, contemplating less restrictive alternatives, such as postponing the Attorney General’s summary approval to after meeting the signature requirement. The full text of the appealed decision can be found here.
The decision reverses the district court’s ruling, grants injunctive relief against the enforcement of the statute, and compels the Attorney General to proceed with the plaintiffs’ proposed amendment to the ballot board. Pursuant to the en banc rehearing order, both parties must file notice regarding their stance on additional briefing and oral argument by June 18, 2024. This en banc process entails all judges of the appeals court participating, as outlined under federal law.