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Fracking issue in Youngstown could ignite fight in the courts
On the side
The Youngstown/Warren Regional Chamber’s board of directors voted to oppose a November state ballot issue that seeks to reduce prescription drug prices.
Issue 2 proposes to prohibit the state from entering into contracts in which the net cost of a prescription drug purchased by the state is more than the lowest price paid by the U.S. Department of Veterans Affairs.
“If the state government has to pay less for medicine, private insurance would have to pay more to make up the difference,” said Guy Coviello, the chamber’s vice president of government affairs. “An alternative would be for pharmaceutical companies to charge the V.A. more to raise the state prices.”
Pharmaceuticals could pull out of their state agreements or not offer certain drugs for state plans to avoid the price control, Coviello said.
A vote from the Mahoning County Board of Elections to keep a Youngstown anti-fracking charter amendment off the Nov. 7 ballot isn’t going to happen for a few more weeks.
And the board won’t even begin discussing it until Tuesday at the earliest.
But it appears the board will decide to not put the proposal on the ballot for a seventh time.
A bill signed by Gov. John Kasich in January that took effect in April on revising foreclosure laws included a number of amendments.
One requires a board of elections or the secretary of state to invalidate a local initiative petition if either determines any part of the petition falls outside the local government’s constitutional authority to enact it.
If the board of elections rejects the proposal, it can be appealed to the secretary of state, under the state law. After the secretary renders a decision, it would head to court.
When that amendment was included, a state legislator said it was done largely to stop the anti-fracking proposal in Youngstown from getting on the ballot again.
The citizens initiative, backed by the Youngstown Community Bill of Rights Committee, bans fracking in the city as well as anything remotely related to it including the storage or transportation of fracking waste-water.
State law gives control over fracking to the Ohio Department of Natural Resources and not municipalities.
Opponents of the proposal have long said that the requested ban isn’t enforceable because of that state law. Supporters say that would be determined after the proposal is passed and challenged in court.
Uncertainty
We’ve been uncertain about this since the first anti-fracking charter amendment was rejected by city voters in May 2013. It also lost in November of that year, twice in 2014, and once each in 2015 and 2016.
If the board does reject the charter amendment, supporters of the proposal say they will take the matter all the way to court.
Don’t dismiss their chances.
The Ohio Legislative Service Commission – the nonpartisan agency that provides the General Assembly with research, budget and fiscal analysis – told legislators that a court might find that the bill places an unconstitutional burden on the people’s right of initiative.
The commission added: “While it is not clear precisely how a reviewing court would interpret the act’s language, it appears that the act would, for example, prevent an initiated city ordinance from appearing on the ballot if the board of elections determined that the proposed ordinance would be unenforceable because of a conflict with state law. Or, the act might prevent a county charter proposal from appearing on the ballot if the board determined that the substance of the proposed charter would be unconstitutional.”
There are those who complain that the anti-fracking proposal has been on the ballot – and rejected – six times already and enough is enough.
But there isn’t a state law that restricts the number of times a charter amendment, or any issue such as a tax levy, can appear on a ballot.
This new law leads to another interesting local angle as the same committee submitted a proposal to change how elections are run in Youngstown.
The proposal would restrict political contributions to only $100 per ballot measure and candidate with those funds coming from only registered city voters.
The proposal would ban corporations, labor unions, political action committee, political parties and other campaign funding entities from giving campaign contributions.
That contribution restriction could conflict with free-speech issues and campaign-contribution decisions made by the U.S. Supreme Court, Mayor John A. McNally told me in June.
If the board of elections agrees, it could reject that proposal from being on the ballot.
As I mentioned, the board can discuss these issues at its Tuesday meeting, but cannot take any action.
That’s because Youngstown City Council has to first vote to accept the petitions before the board of elections can act. City council is expected to accept the petitions at its next meeting, Aug. 23.