2023 Ohio 3325
Ohio2023Background:
- A citizen-initiated constitutional amendment titled “The Right to Reproductive Freedom with Protections for Health and Safety” (Issue 1) qualified for Ohio’s November 7, 2023 ballot.
- The Ohio Ballot Board (chaired by the Secretary of State) met and, by 3–2 vote, adopted ballot language that paraphrased the amendment rather than printing the amendment’s full text; notable substitutions included “reproductive medical treatment” for “reproductive decisions,” and “citizens of the State of Ohio” for the amendment’s defined term “the State.”
- Relators (the initiative sponsors and individual committee members) filed an original mandamus action seeking to compel the Secretary to reconvene the board and either place the amendment’s full text on the ballot or adopt lawful (non-misleading) ballot language.
- The court applied the mandamus standard for expedited-election cases (clear legal right, corresponding duty, no adequate remedy; proof by clear and convincing evidence) and Article XVI, §1’s requirement that ballot language “properly identify the substance” and not mislead voters.
- The Supreme Court of Ohio held that most challenges to the board’s language failed, but that the phrase “citizens of the State of Ohio” was misleading because it could cause voters to think the amendment restricts private citizens rather than government actors; the court granted a limited writ ordering the board to reconvene and replace that phrase with language making clear the amendment regulates the State as defined in the amendment.
- The writ was denied in all other respects; the Court declined to order the board to place the full text on the ballot.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the board’s substitution “reproductive medical treatment” misstates the right (vs “reproductive decisions”) | Substitution misleads by implying a right to state-provided medical care and narrows the scope of protected decisions | Phrase accurately conveys right to obtain medical treatment to carry out reproductive decisions; omission of other categories not material | Not misleading; language acceptable as an imprecise but accurate summary |
| Whether phrase “citizens of the State of Ohio” misidentifies the actor the amendment restricts (vs “the State”) | Phrase misleads voters into thinking amendment limits private citizens’ actions rather than government action | “Citizens” and “the State” are conceptually linked (gov’t power derives from people); language signals that initiatives/statutes cannot override the amendment | Misleading; court orders reconvening to adopt language making clear the amendment limits the State’s authority |
| Whether ballot language suggests physicians can override a patient’s decision to continue pregnancy | Language implies physician may force abortion contrary to patient wishes | Language simply permits abortion when physician determines necessary; does not compel abortion | Not misleading; does not imply forced abortion |
| Whether omission of the amendment’s definition of “fetal viability” misleads about physician discretion | Omission suggests unfettered physician discretion; definition and ‘‘professional judgment’’ requirement constrain discretion | Summary accurately states physician determines viability on a case-by-case basis; voters understand physicians exercise professional judgment | Not misleading; omission of the precise definition is not material |
| Whether ballot language misstates the scope of state regulation by failing to specify what the “least restrictive means” must advance | Omission obscures that least restrictive means must advance pregnant individual’s health in accordance with evidence-based standards | Ordinary reading ties ‘‘least restrictive means’’ to minimizing burden on the pregnant woman; full detail unnecessary for summary | Not misleading; absence of explicit object does not deceive voters |
| Whether use of terms like “unborn child,” or absolute words (“only,” “always”), renders the language argumentative | Terms and emphatics inject moral/persuasive framing and overstate limits on state authority | Terms are factually accurate and reflect matters addressed in the amendment; accuracy defeats charge of improper argument | Not argumentative; factual accuracy means phrasing is permissible |
Key Cases Cited
- State ex rel. Voters First v. Ohio Ballot Bd., 133 Ohio St.3d 257 (2012) (ballot language invalid only if it misleads, and review examines fraud, abuse of discretion, or clear disregard of law)
- State ex rel. Waters v. Spaeth, 131 Ohio St.3d 55 (2012) (mandamus proof in election cases requires clear and convincing evidence)
- State ex rel. Bailey v. Celebrezze, 67 Ohio St.2d 516 (1981) (ballot language must fairly and accurately present the issue and not be argumentative)
- Markus v. Trumbull Cty. Bd. of Elections, 22 Ohio St.2d 197 (1971) (ballot language must enable informed vote by the average citizen)
- State ex rel. Cincinnati for Pension Reform v. Hamilton Cty. Bd. of Elections, 137 Ohio St.3d 45 (2013) (condensed text may omit nonmaterial items but must not omit essential parts)
- State ex rel. Hodges v. Taft, 64 Ohio St.3d 1 (1992) (initiative and referendum powers construed liberally to effectuate reserved rights)
- Schnoerr v. Miller, 2 Ohio St.2d 121 (1965) (full text on the ballot is the clearest way to identify the substance of a proposed amendment)
- Jurcisin v. Cuyahoga Cty. Bd. of Elections, 35 Ohio St.3d 137 (1988) (board must avoid persuasive argument in ballot language)
- Beck v. Cincinnati, 162 Ohio St. 473 (1955) (persuasive or argumentative ballot language is impermissible)
- Milhoof v. Bd. of Edn., 76 Ohio St. 297 (1907) (principle that government acts through representatives of the people)