Pot issue adds controversy to fall ballot
Dueling initatives latest exercise in citizen democracy in Ohio.
for more than 100 years, ohio voters have had the power to write laws they want and veto laws they hate in an exercise of citizen democracy that has dramatically changed the way we live, work and play.
it’s looking like there will be more opportunities to do that again this fall.
voters are likely to see at least three constitutional amendments on the november ballot, including one that would legalize marijuana for medical and recreational use, and another by the ohio general assembly to head that measure off at the pass.
in addition, issue 1, the only measure that has already qualified for the ballot, would make an attempt at changing the way legislative districts are drawn every 10 years.
Ohio voters have considered 225 amendments to the state constitution since they first got the right to do so in 1913, and have approved slightly more than half.
At first, state voters seemed skeptical of their new powers, approving only one of every three proposals during the first 30 years of ballot measures. Among the rejected issues were those giving women the right of women to vote in 1914 and 1917, and one authorizing a poll tax in 1921.
Prohibition in Ohio was voted down in 1914, 1915 and 1917, before it finally passed in 1918.
In all, voters approved 17 constitutional amendments and rejected 34 between 1913 and 1943. Then, the pattern changed.
Between 1950 and 2014, 58 percent of the 166 amendments that made the ballot were approved by voters, and in recent years such issues have drawn intense interest — and money.
Nearly $60 million was spent by interests for and against the 2009 ballot issue that brought casinos to four cities in Ohio.
Greg Lawson, policy analyst for the conservative-leaning Buckeye Institute, said the ballot initiative process has been “huge” in Ohio politics in recent years.
In 2004, voters added a ban on same-sex marriage to the Ohio constitution. In 2006, smoking was banned in workplaces and public places, and the minimum wage was increased. Payday lending regulations were approved in 2008, and in 2011 voters gave a firm no to limits on collective bargaining for public employees that were approved in the legislature and signed by Gov. John Kasich.
“There have been a wide range of different issues that this has addressed,” Lawson said. “It’s certainly been important.”
Daniel Tokaji, a law professor at Ohio State University who specializes in election law, said ballot initiatives historically have been much more prevalent in western states, such as California, Oregon, Washington and Colorado.
In the last presidential election, for example, California had 11 initiatives on the ballot, five of which passed.
Still, the popularity of ballot initiatives here is probably on the rise, said Tokaji, who was on the losing end of an initiative to change the state’s redistricting process in 2011. “And it’s especially an important tool for the party that’s out of power.
“If one party is out of power and knows that it’s going to be out of power for some time to come, as the Democratic Party does in the current environment, then that’s an important way around the legislature on things that a majority of people might support but the dominant party won’t,” Tokaji said.
“Like, for example, marijuana.”
Brittany Clingen, who has studied and tracked ballot initiatives and referenda nationwide for Ballotpedia.com, said outside of the Western states, Ohio is interesting to watch.
“Citizens can refer both state statutes and constitution amendments to the ballot,” said Clingen a senior writer for the site that calls itself the online encyclopedia of American politics. “There’s the opportunity for veto referendums and legislative referrals.
“So Ohio is one of the states further east that is actually pretty friendly for direct democracy.”
Pitched fight possible
In Ohio, constitutional amendments can be initiated by citizen campaigns or referred to a public vote by the General Assembly.
The success rate often depends on where they come from.
Voters have approved two of every three issues referred by the General Assembly, while rejecting three of every four of those initiated by citizen signature campaigns.
That is also true nationwide, Clingen said. Since 2009, 75 percent of legislatively referred initiatives have been approved by voters in states across the country, while only 48 percent of citizen-initiated issues have been approved.
This sets up a possible pitched fight over ResponsibleOhio’s proposed constitutional amendment this year to legalize and regulate medical and recreational marijuana in the state.
ResponsibleOhio’s legalization amendment is citizen-initiated, which means the proponents have to collect enough signatures to equal 10 percent of the votes cast in the last gubernatorial election. They also have to have qualified for the ballot in at least 44 counties.
The group pledges to have about 700,000 signatures — close to twice the required amount — by the July 1 deadline.
Meanwhile, a group of legislators is proposing a counter ballot issue, a joint resolution that would ban initiatives creating a monopoly written into the Ohio constitution.
If such a ban had been in place in 2009, the casino vote may have been nullified. And opponents of ResponsibleOhio’s measure accuse that group of attempting to write a monopoly into the Ohio constitution.
State Rep. Dan Curtin, D-Marble Cliff, said he and state Rep. Ryan Smith, R-Bidwell, are sponsoring the anti-monopoly measure to counter the subversion of the initiative process by big money interests.
Curtin said voters should have the choice to put a “guard rail” around the initiative process and block someone from using the constitution to create “special economic benefits.”
“To me, this is an historic moment for Ohio, where special interest greed knows no bounds,” he said. “I think the initiative was founded to protect the many against the few special interests. Now the few special interests have turned it on its head, to find a way to take advantage of it.”
Ian James, executive director of ResponsibleOhio, scoffs at Curtin’s characterization of the proposed joint resolution.
“Representative Curtin’s very action defies his comment,” James said. “What it (the joint resolution) in fact does is it requires that you be the rich and the powerful with influence and connections within the Statehouse in order to change the constitution.”
James said ResponsibleOhio polls 300 Ohioans every week, and those polls tell him that more than 80 percent are in favor of medical marijuana legalization and 60 percent are in favor of recreational use.
The legislature, James said, has been refusing to deal with marijuana legalization for 18 years. Now, he said, it’s time for the citizens to act.
“The voters are way ahead of the politicians on this,” he said.
“It’s as clear as when they can’t beat us, they try to cheat us,” he said of the legislative effort. “And that’s what they’re trying to do right now.”
Monopoly questions
Sandy Theis, director of the left-leaning Progress Ohio, has some qualms about recent developments in the initiative process but says state legislators share the blame.
“I think what we’ve seen is when the voters want something that the legislators don’t have the political will to do, like legalize casinos or marijuana, then private interests step forward and they do it in a way that benefits them,” Theis said. “I think the lawmakers are responsible for what we’re seeing in Ohio, because they don’t have the political will to do what the people want.”
Theis, whose board of directors supports the ResponsibleOhio measure, disagrees that it would create a monopoly. The amendment would create 10 marijuana growing sites that would compete with each other, she said.
“It’s not a monopoly and a cartel,” she said “In order for it to be either one of those things, there has to be no competition. And there is competition.”
Theis also said a newly created Marijuana Control Commission would have the authority to add or subtract growing licenses to meet demand, which could result in additional competition.
But Lawson, whose Buckeye Institute favors free markets, said limiting the number of growing sites creates problems.
“Yes, there is going to be some competition among those groups, but there is going to be a lot more competition at 20 or 30,” he said. “Ten is an arbitrary limit. And whenever you have arbitrary limits on things, you create restrictions that create
higher costs.”
Cluttered constitution
Lawson also objects to ResponsibleOhio trying to put drug policy in the constitution, arguing that the constitution shouldn’t be used to advance parochial policy interests.
But OSU’s Tokaji said that horse is out of the barn.
“We’re long past the point of our state constitution becoming too cluttered,” Tokaji said. “That’s just the reality. And that’s true not only in Ohio but in lots of other states.”
Tokaji also is skeptical about Curtin’s claim that big money is taking over the initiative process.
It’s true, he said, that if you have enough money, you can get anything on the ballot. But that doesn’t mean you can get it passed.
“When voters are confused, they tend to vote no, even if you spend a lot of money to convince people otherwise,” he said. “So with something that’s really complicated, a lot of times people will vote no if they don’t understand it.”
Legal battle likely
If a pot and counter-pot proposal both end up on the ballot this year, voter confusion is almost a guarantee.
And if both pass, a legal battle is just as certain.
ResponsibleOhio’s James said the measure with the most votes will prevail, and he is threatening to run a dual campaign — one for his group’s measure and one against the General Assembly’s.
Secretary of State Jon Husted Friday issued a statement that said an amendment issued by the General Assembly would take effect sooner than a citizen-initiated measure, and would therefore “prevent ResponsibleOhio’s provision from taking a place in the state’s constitution.”
He all but said any votes on the ResponsibleOhio measure would be moot.
But Doug Berman, an OSU law professor who teaches a course on marijuana law and public policy, said a prolonged court battle will almost certainly follow if both amendments pass.
There is Ohio precedent that when two conflicting amendments pass, the one with the most vote wins, he said.
And Berman questioned whether voter passage of the General Assembly’s joint resolution could void the ResponsibleOhio amendment.
“This will end up in the courts,” he said. “Any interpretation that we get now, any prediction from Husted or anybody else, is just an effort to spin and create confidence about how this would work.
“It is not obviously a representation from anybody in the judiciary or anything even close to a guarantee how it would play out once the votes are counted.”