Wednesday, April 25, 2018
By David Skolnick
The Ohio Supreme Court ruled in a 5-2 decision that the Mahoning County Board of Elections exceeded its authority by rejecting an anti-fracking ballot initiative in Youngstown.
The court ruled late Tuesday that the board must place the proposal back on the ballot. The proposal, if approved, would ban fracking and anything related to the extraction of fossil fuels in the city. City voters have rejected similar ballot measures six times – twice in both 2013 and 2014, and once each in 2015 and 2016.
The latest decision comes about six months after the court ruled 4-3 on a largely similar proposal that the board made the right decision not to put that initiative on the November 2017 ballot.
However, the court decided that one difference between the two proposals made the new one valid.
The initiative rejected by the court in October would have authorized “private citizens to enforce their rights through nonviolent direct action or by filing suit as a private attorney general.”
The court wrote of the previous decision: “We agreed with the board’s determination that a municipality lacks legislative power to authorize Youngstown residents to file suit as a ‘private attorney general’ because a municipality cannot create a new cause of action.”
But in the new initiative, the court wrote, “the offending provision” is “not included in the proposed charter amendment now before us, and the board offers no clear support for its conclusion that relators’ current proposal is beyond the scope of the city’s legislative power.”
The court also wrote that “there was no creation of a private right of action – an ‘individual’s right to sue in a personal capacity to enforce a legal claim” – in this case.
It added: “Although the proposed amendment would not necessarily be constitutional or legally enforceable if enacted, the board abused its discretion in finding that the measure exceeds Youngstown’s legislative power.”
David Betras, the board of elections’ vice chairman, said, “I honestly don’t know what I’m supposed to do. You need to be a rocket scientist to figure out the differences. One time they say it’s OK; one time they say it’s not OK. It leaves me confused as to what the law is, and I’m an attorney. They need to rule on this issue one way or the other. It’s very confusing for the general public.”
The board had voted March 13 to keep the proposal off the ballot pointing to House Bill 463, which requires election boards to invalidate local initiative petitions if they determine part of the petition falls outside a local government’s authority to enact them.
State law gives jurisdiction over fracking to the Ohio Department of Natural Resources.
Early voting started April 10, so the board plans, starting as soon as today, to send supplemental ballots to the 1,085 people in Youngstown who have already voted, said Mark Munroe, board chairman. Also, starting today, all absentee ballots for Youngstown voters will include the anti-fracking charter initiative, he said.
When asked about the decision, Munroe said: “It’s obvious the court has struggled with this issue. It’s clearly been a difficult issue for the court to make.”
Susie Beiersdorfer, a member of the Committee for the Youngstown Water Protection Bill of Rights and among the four people who appealed the board’s decision, said she was “pleased it’s a win at the Supreme Court.” But she has questions about the supplemental ballots.
Terry J. Lodge, a Toledo attorney who represents the committee, said, “We’re certainly happy they restored the measure to the ballot, but we’re pretty disappointed with the reasoning. We were trying to get [the court] to affirm a decision to strike down House Bill 463.”
While appreciative that the board will work to get ballots to those in Youngstown who have already voted, Lodge said the primary is only two weeks away and there isn’t time for voters to properly debate the issue. Lodge said he may ask the court to either set a special election or allow the committee to put the measure on the November general election ballot.