Issue 2 is a proposed amendment to the Ohio Constitution that will appear on the ballot in the November 2015 general election. Initiated by the Ohio General Assembly, the stated intent of Issue 2 is to thwart passage of the “Marijuana Legalization Amendment” sponsored by the Responsible Ohio PAC, due to its approach toward marijuana cultivation (allowing only 10 growing sites in Ohio). Issue 2 has far-reaching consequences. It could forever change the ability of “We the People” to engage in direct democracy, especially when our legislators cannot or will not.
It is important to oppose Issue 2 for the following reasons:
Rushed legislation. Formerly known as House Joint Resolution 4 (HJR4), Issue 2 was rushed through and passed at the very last minute by the Ohio legislature. From introduction to adoption, HJR4 took a mere two weeks to move through both chambers.
Misplaced priorities. Ohio’s sick, dying and disabled have waited 18 years and counting for passage of a medical marijuana bill. Of the six bills that have been introduced during that time frame, none moved out of committee, even though over 80% of Ohioans support safe legal access to cannabis as medicine. The legislature will not act; Issue 2 takes away constitutional alternatives to inaction.
The legislature had its chance. Legislation like Issue 2 has been floated for years. The Responsible Ohio plan was announced in July 2014. The campaign launched in December 2014. The Marijuana Legalization Amendment was certified for statewide signature gathering in March of 2015. HJR4 passed the very last day of June 2015.
Passed after the fact. Not only did Ohio lawmakers approve Issue 2 at literally the 11th hour on June 30, 2015, they passed it five hours after the Responsible Ohio PAC followed the law and submitted almost 700,000 signatures to qualify for the ballot.
Poorly drafted and confusing. Because of its hasty drafting and passage, Issue 2 is poorly written and confusing. It has sparked a rigorous debate over its interpretation based on the placement of commas. Do “similarly situated persons” apply only to a commercial interest, or to monopolies and tax rates as well? Something the Ohio Supreme Court would determine through a time consuming and costly legal process.
A fatal blow. In drafting the ballot language, the legislature wanted to make sure that Issue 2 would strike a fatal blow at the Marijuana Legalization Amendment, and by extension marijuana legalization in general, through inclusion of the words, “use of any federal Schedule I controlled substance,” a direct reference to marijuana.
Passed by the party in power. The Issue 2’s passage divided almost strictly along party lines. The Senate split aligned perfectly by party: 20 Republicans, ‘yes’ and 9 Democrats, ‘no.’ While Republicans overwhelmingly comprised the 72 ‘yes’ votes in the House, all 15 ‘no’ votes belonged to Democrats. The Ballot Board, which wrote Issue 2’s ballot description, split 3-2 – Republican.
Just 3 political appointees. Ballot issue campaigns must go through an arduous, time consuming and expensive process to place an initiative before voters. Under Issue 2, after (not before) spending all of this time and money, just three political appointees (majority of the five-member Ballot Board) would have the sole authority to determine if an initiative is a “violation”.
Violation! Under Issue 2, once the politically appointed five-member Ballot Board determines that an initiative contains a monopoly, tax rate or commercial interest, the measure must be split into two questions. The first would ask “Shall the petitioner in violation….” and the second would describe the proposed amendment. The word “violation” alone will prejudice voters and thereby decrease likelihood of passing even the most worthy issue.
The only winners. If a campaign dislikes the Ballot Board’s determination, it can appeal the decision to the Ohio Supreme Court, which like all other branches of government in Ohio is controlled by Republicans. The appeal process is time consuming and costly because the prime participants are highly-paid lawyers. Attorneys with specialties in election law often command fees as high as $1,000 or more per hour. Under Issue 2, this exorbitant cost would be borne by the campaign and by extension the State of Ohio.
Tough enough already. The process of fielding a citizen-led ballot initiative in Ohio is already far more costly, complicated and cumbersome than it is in other states, where initial filings and committee procedures are easier or the required number of signatures and geographic regions are smaller. Issue 2 would make this process even more complex. The end result would silence the voice of “We the People” in favor of the legislature.
Only the wealthy. The additional steps to the ballot initiative process proposed by Issue 2 would increase the uncertainty of passing even the most worthy measure, thereby adding a level of risk to an already cumbersome process. The increased uncertainty combined with a heighted risk of failure would inflate the costs of the process for both the campaign and the State. Issue 2 would diminish the likelihood of anyone, except the wealthiest, participating in the process.
The real reason. HJR4 was sponsored by Ryan Smith (R-93) and Mike Curtin (D-17) and included a large number of bi-partisan co-sponsors. Legislatures have always had a tenuous relationship with citizen-led ballot initiatives because these efforts usurp legislative power and often bring out unique voting populations in critical election years. Such will be the case in 2016. Republicans may want to dampen the millennial turnout, a generation with liberal leanings that overwhelming votes in favor of marijuana. Democrats painfully remember the Definition of Marriage Amendment in 2004. Neither party wants the outcome of 2016 presidential election in a key swing state to hinge on ballot initiatives; both parties will make sure they fail. That in a nutshell is the point of Issue 2.
In summary, Issue 2 is about far more than thwarting monopolies. Its real purpose is to quash the citizen-led ballot initiative process that has been part of the Ohio Constitution since 1912. It can be argued that these measures have been instrumental to gaining public acceptance of controversial issues like same-sex marriage, collective bargaining and marijuana. Issue 2 will change these long standing procedures, while politicizing the process clearly to favor the political party in power. It would require campaigns for even the most worthy issues to undergo the arduous, time consuming and multi-million dollar ballot placement process only to have three politically appointed members of the partisan Ohio Ballot Board tank the effort in the very end based solely on their interpretation of what a monopoly, tax or commercial interest is. Today, every issue contains at least one of these. Issue 2 is aimed at muzzling lawmakers’ real opposition –
We the People.
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Others Who Have Spoken Out About Issue 2
Marijuana Policy Project on 9/16/15: “We urge a “no” vote on Issue 2 — a legislatively referred measure intended to invalidate Issue 3, which could also complicate efforts to pass any future ballot measure with a specific tax, such as any future measure to legalize and tax marijuana."
Doug Berman, Ohio State University law professor on 9/8/15: “Any piece of economic legislation, whether it’s about the minimum wage, whether it’s about unions, you name it, there's at least a risk, not a guarantee, but a risk, that it will run afoul of an interpretation of Issue 2.” (NBC 10 TV)
Jacob Wagner, attorney for Ohioans to End Prohibition on 9/4/15: “… what the language really does will likely be decided in court. It's not written in the best way possible … To be frank, it's a run-on sentence." (Northwest Media Group)
Ohio Senator Mike Skindell (D-Lakewood) on 9/4/15: “That language in the resolution was overly broad … applying a common sense legal rule, the last clause only applies to the phrase immediately preceding it. In that case, any proposed constitutional amendment setting or changing a tax rate would be affected and have to appear as two issues on the ballot.” (Northwest Media Group)
Dan Tokaji, Ohio State University law professor and elections law expert on 9/4/15: Issue 2 “makes an unfair process much worse by allowing the Ballot Board to simply declare something a monopoly in their own discretion and if they do that, then it will require subsequent ballot measures to go through two hoops that are practically insurmountable." (Northwest Media Group)
Ohio Rights Group on 9/3/15: “The ORG board of directors at its most recent meeting voted unanimously to urge Ohioans to vote no on this thinly veiled attempt by the Ohio General Assembly to further handicap participation by “We the People” in the democratic process. If passed, Issue 2 will make it nearly impossible for future citizen-led campaigns to successfully place even the most worthy measure before voters.” (Press release)
Joe Schiavoni (D-Boardman), Ohio Senate Minority Leader on 7/1/15: "It seems like this isn't so much about monopolies anymore but it's about marijuana … We're basically telling voters that they are not able and capable of making a decision after reading an amendment that is on the ballot for them to vote on." (Crescent-News)
Keary McCarthy, President of Innovation Ohio on 6/24/15: “This language is so unbelievably broad that this resolution could weaken legitimate citizen initiatives instead of truly protecting against corporate monopolies. Changing the constitutional rules with such broad language in the last legislative minute, makes this well-intentioned idea a very bad one.”
Chris Stock, attorney for Responsible Ohio on 6/23/15: “… from a checks-and-balances perspective, HJR4 – whether the drafters intended it or not – dramatically shifts the power of the ballot initiative away from the people, and gives the General Assembly unprecedented control over the Constitution. This is not what our founders intended. The Ohio Constitution was designed to provide its citizens with a direct avenue to bypass the Ohio General Assembly should it refuse to act on an issue of great general or public importance.” (Testimony before the Ohio House on HJR4)
