When is a win a win?

COLUMBUS

Two recent Ohio Supreme Court cases merit a second glance, only because they prompt the question: Were the victors really the victors?

In one, fracking-related issues were kept off the ballots in three Ohio counties, contrary to plaintiffs’ request for legal remedy. In the other, justices ordered the state Ballot Board to reconvene and reword November’s Issue 3, ResponsibleOhio’s marijuana legalization proposal.

Republican Secretary of State Jon Husted and the folks that sued him can claim measures of victory in both decisions.

In the fracking cases, Husted was vocal in his position about the secretary of state’s authority to block three charter amendments from the ballot.

The Ohio Supreme Court, he said, had already ruled that such fracking-related decisions rested in the hands of the Ohio Department of Natural Resources, and placing the charter issues before voters now would be a waste of taxpayers’ time and money.

The Supreme Court agreed with Husted’s ultimate position – that he acted within his authority on the issue – but only because the charter issues did not meet the “form of government” requirements outlined in the state constitution and code.

But justices smacked down any assertion that Husted could preemptively decide the constitutionality or legality of citizen-driven ballot efforts.

According to the majority decision, “Husted urges us to defer to his broader interpretation [of state law], which would effectively give him discretion to prejudge the legality or constitutionality of the substance of a petition. We decline to do so because his interpretation is not reasonable. ... Husted’s construction of the statute would lead to absurd results... [and] permit him to disqualify ballot initiatives before they are submitted to the electorate based on his legal opinion of their constitutionality.”

Affirmation

And with that, though the plaintiffs ultimately were blocked from this year’s ballot, they walked away with an affirmation of their position and the potential for a future vote.

“Athens, Medina and Fulton Counties have triumphed against a government official claiming ‘unfettered authority’ to rule on the content of the people’s initiatives – a dangerous threat to democracy,” Tish O’Dell, a community organizer with the Community Environmental Legal Defense Fund, said in a released statement. “The Ohio Supreme Court has ruled on behalf of the people, safeguarding their inalienable right to advance and vote on their own initiatives.”

In the ResponsibleOhio case, justices ordered the Ballot Board to change the wording in four sections of the ballot language it earlier approved, noting inaccuracies or misleading content.

But the state’s high court let stand the title Husted chose for Issue 3, which notes that the proposed amendment “grants a monopoly for the commercial production and sale of marijuana for recreational and medicinal purposes.”

Justices ruled that that wording was “‘not inaccurate, incorrect or illegal,’ ‘confusing, misleading or argumentative’ or persuasive in nature.”

While Responsible-Ohio effectively forced the Ballot Board to reconvene, it couldn’t prompt a change in the wording of the first thing voters will see when deciding the issue.

Husted can claim victory on that.

Marc Kovac is The Vindicator’s Statehouse correspondent.