House Bill 6: Ohio Supreme Court will hear referendum case

A failed referendum campaign to repeal House Bill 6 – called by its critics a bailout of two financially-strapped nuclear power plants – may be revived with the Ohio Supreme Court agreeing to rule on questions posed by a federal court.
In an Oct. 23 ruling, U.S. District Court Judge Edmund Sargus determined that Ohioans Against Corporate Bailouts couldn’t be granted additional days by federal court for the group’s petition drive to place the referendum on the November 2020 ballot for voters to decide.
But Judge Sargus submitted five questions on state law related to the case to the Ohio Supreme Court, which last week agreed to answer.
Ohioans Against Corporate Bailouts had asked Judge Sargus to grant the group an additional 38 days to gather signatures. The group filed a complaint against Frank LaRose, Ohio Secretary of State, contending state law and the petition review process didn’t provide for the full 90-day period allowed for collecting signatures and submitting them for the ballot.
In addition, the group – which was required to collect 265,774 valid voter signatures - argued it missed the Oct. 21 filing deadline because opponents of the petition drive were harassing petition circulators.
House Bill 6 went into effect Oct. 22 but a provision in the bill that enacts a monthly surcharge to raise about $1 billion over seven years for nuclear plants operated by FirstEnergy Solutions won’t go into effect until 2021. Coal-powered plants also benefit from the bill and opponents also say the state’s renewable energy program is weakened by it.
In a filing with the state supreme court, attorneys for OACB say the first question is paramount to the case. It reads: “Whether the right to referendum set forth in the Ohio Constitution guarantees those circulating petitions in support of a referendum a full ninety days solely for the purpose of circulating petitions?”
A memorandum filed with the court by OACB attorneys says; “Upon the certified questions tendered by the district court, this court should accept for consideration Question 1 as that question alone involves a pure matter of law of constitutional significance.”
The other questions submitted to the court ask if the statutes covering the petition review process violate the state constitution by shortening a full 90 days solely to accommodate a fair review. Also, if the state constitution guarantees a petitioner 90 days to circulate petitions, are the number of days attributable to a petitioner’s own errors in submitting a referendum petition ‘credited’ to the petitioner, or deducted from the 90 days.”
Secretary of State LaRose in a recent filing argues the court – if it does accept any of the questions – should “answer the first question in the negative, which would dispose of the remaining four.”
“Viewed in context, the 90-day period simply ensures that any referendum petition is filed before the underlying law takes effect. Nothing in the text designates those 90 days as reserved for signature gathering, and this court should not read such a requirement into the text,” it says.
Justices Maureen O’Connor, Sharon Kennedy, Michael Donnelly and Melody Stewart voted to answer the questions. Justices Judith French, Patrick Fischer and R. Patrick DeWine recused themselves from the case, citing their campaign consultants also were involved in the referendum campaign.