The lawsuit against the Ohio Ballot Board over its alleged attempt to confuse voters about Issue 1, a proposed constitutional amendment intended to end gerrymandering, is proceeding quickly at the Ohio Supreme Court. Here is a recap and some updates.
In August, the Ohio Ballot Board rejected ballot language — the description of the amendment that appears on paper ballots — submitted by Issue 1’s backers, Citizens Not Politicians (CNP). Instead, the Ballot Board voted 3-2 to adopt a description prepared by the office of the board’s chairperson, Secretary of State Frank LaRose. He and the other two members who voted for that ballot language are Republicans.
CNP sued in the Ohio Supreme Court, calling the ballot language “biased and deceptive.” The Ballot Board Republicans denied that through their attorney, Ohio Attorney General Dave Yost.
On Aug. 28, the two Democrats on the Ballot Board, state Sen. Paula Hicks-Hudson and state Rep. Terrence Upchurch, filed a brief in which they denounced the board’s decision on the ballot language and stated that no one from Yost’s office had spoken to them before responding to CNP’s lawsuit or replied to their request for their own attorneys. (They filed the brief themselves.)
Here are some updates from last week and Monday.
Dueling briefs over the Democratic Ballot Board members’ request
Yost asked the court to strike (or ignore) Upchurch and Hicks-Hudson’s brief. He argued that allowing state officials who were on the losing side of a vote to challenge that vote in court “would subvert the democratic system.”
Two days later, Hicks-Hudson and Upchurch asked to withdraw their filing. But Yost opposed that too and asked the court to make a decision on the brief, which he called “unlawful.” He asked the court to set a precedent that the “non-prevailing” (losing) side of any voting body, such as the Ballot Board, can’t then take the fight to court.
“It has happened before in high-profile cases,” Yost wrote, referring to the seven Ohio Board of Education members who sued Gov. Mike DeWine last year. “And it will likely continue to happen until this Court puts a decisive end to these unlawful efforts to subvert our democratic structure.”
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Justice Brunner will remain on the case
On Monday, the court announced that Justice Jennifer Brunner would not recuse herself from the case, as Yost’s office had requested.
In November 2023, Brunner sued Yost, LaRose and other state officials in federal court over a 2021 state law that requires “judges and candidates running for the Ohio Supreme Court and appellate courts to put a party label next to their name on the ballot,” according to WOSU. “Brunner argues the law makes judges seem more partisan when the code of conduct places restrictions on such conduct and can penalize those who break it.”
That case is still pending. Yost argued, in a Sept. 6 letter to the court, that Brunner’s “impartiality to decide the claims against the Secretary of State in this [Issue 1] proceeding might reasonably be questioned.”
In her response, Brunner cited Yost’s own argument against Upchurch and Hicks-Hudson’s brief.
“In that motion, General Yost argues that the Ohio Ballot Board is a multi-member board that speaks ‘through decisions reached by majority votes of their members,’ and not through members individually,” Brunner wrote. In other words, LaRose isn’t part of the Issue 1 case as an individual, but as a member of the Ballot Board. Brunner also pointed out that her own case involving LaRose has nothing to do with the Ballot Board but rather with his role as the state’s top elections official.