For the third time, the Ohio Supreme Court will decide whether an initiative to ban fracking in Youngstown will be in front of city voters.
Attorneys representing four city residents, who back the charter amendment, filed a writ of mandamus with the state’s high court against the Mahoning County Board of Elections and its four members. The legal filing seeks to overturn the board’s March 13 decision to keep the proposal off the city’s May 8 primary election ballot.
Back in September 2015, the court ruled against the board in a 7-0 decision.
They wrote the board of elections did “not have the authority to sit as arbiters of the legality or constitutionality of a ballot measure’s substantive terms. An unconstitutional amendment may be a proper item for referendum or initiative. Such an amendment becomes void and unenforceable only when declared unconstitutional by a court of competent jurisdiction.”
The decision came after the city of Youngstown filed an objection to the board of elections not putting the issue on the ballot even though members of the administration didn’t support the proposal. They just wanted voters to have a choice.
The charter amendment was rejected by voters in the November 2015 election – just as they did twice in both 2013 and 2014.
It was also turned down by city voters in the November 2016 election. That’s six times for those keeping score at home.
Then those backing the amendment submitted petitions to the board of elections in September 2017 seeking to put it on the ballot for a seventh time.
The board rejected the request leaning heavily on what was then a new state law, House Bill 463, which requires boards of elections to invalidate local initiative petitions if they determine any part of the petition falls outside a local government’s constitutional authority to enact them. The bill’s sponsor wrote the legislation with the Youngstown anti-fracking charter amendment specifically in mind.
In a 4-3 decision in October 2017, the Supreme Court agreed with the board to not certify the charter amendment proposal. But not for the reason given by the board.
The court relied on case law, primarily “Sensible Norwood.”
In that 2016 case, which seems to contradict the 2015 Youngstown decision, the court agreed with the Hamilton County Board of Elections, which refused to certify to the city of Norwood ballot a proposal to decriminalize marijuana.
“This court held that a county board of elections may properly refuse to certify a proposed municipal ordinance to the ballot when the ordinance encompasses a matter beyond the scope of the municipality’s authority to enact,” the October 2017 decision reads, citing Sensible Norwood.
Since then, the court ruled in another case – Espen v. Wood County Board of Elections – that a board of elections has “no authority to invalidate [a] charter petition based on a substantive evaluation of its legality.”
So the court seems to be all over the place when it comes to these charter amendments.
David Betras, Mahoning elections board vice chairman and the county’s Democratic Party chairman, said before the board unanimously voted last week to reject the amendment: “This is not a consideration of the constitutionality, legality or merits of this proposal, but rather the power sought to be exercised is beyond the scope of the city’s authority.”
State law gives jurisdiction over fracking to the Ohio Department of Natural Resources.
In an appeal to the Supreme Court, Terry J. Lodge, a Toledo attorney, and Jensen Silvis, an Akron attorney – who represent the four Youngstown residents – wrote the board of elections “and its members are barred by Espen and relevant constitutional principles from peremptorily invalidating the Water Protection BOR [Bill of Rights] on the ground of the proposal’s substantive content; or because the initiative purportedly is beyond the power of the city of Youngstown to enact; or because it is cheaper to just deny a vote on a measure that, in the subjective views of [board of elections] members, would be later invalidated by the courts anyway.”
‘Abuse of authority’
They added that the board’s “formal vote to deny placement of the charter amendment on the ballot was unconstitutional, arbitrary, illegal, and an abuse of their legal authority.”
It will be interesting to see what the Ohio Supreme Court decides this time around and its legal justification.
And what would happen if city voters finally approve the charter amendment? It’s not enforceable, so it would head back to the court system to sort out that mess.