SCOTUS Has A Chance To Stop Dishonest Ballot Measures

The careful wording of ballot questions can make a world of difference in how voters respond to an issue.

Imagine an election at a cafeteria where the cooks disagree about how to word a ballot question. One suggests, “Should we cut the cost of lunch in half?” The other recommends, “Should we serve exclusively Ramen noodles every day to save cost and pass the savings on to you?”

Both questions mean the same thing; one is more honest. It is not hard to predict the vote outcome when you manipulate the words. Elle Purnell, elections editor at The Federalist, described dishonest wording as “another way Democrats rig elections.”

In Ohio, the process of choosing the words for a ballot question is under debate. State Attorney General Dave Yost has recently asked the U.S. Supreme Court to settle a dispute between his office and activist group the Ohio Coalition to End Qualified Immunity. The group has been trying to amend the Ohio Constitution since 2023 to get a question on the state ballot that would make it easier to personally sue individual police officers and other public employees.

The Process

Getting a question on a statewide ballot is a complicated process with different rules depending on where you live. Some states, like Pennsylvania, require state legislature involvement to put forth a ballot question. Other states, like Ohio, allow “ballot initiatives” where citizens start the process of making changes to the state Constitution.

In an Ohio ballot initiative, citizens must form a committee, collect signatures of 1,000 registered voters in support of the proposal, and then submit their proposed constitutional amendment and a summary of the proposal to the Ohio attorney general.

The summary should be brief and sum up the measure, so people understand what they are signing.

The law says the Ohio attorney general has 10 days to decide if the summary “is a fair and truthful statement of the proposed amendment.” If the attorney general and the ballot board clear the summary, the petitioner circulates the petition with the approved wording and must collect the signatures of at least 10 percent of the total votes cast in the last gubernatorial election to get it on the ballot. This must be done at least 125 days before an election.

The coalition has submitted its proposed amendment to Yost in various forms, seven times, according to court papers.

“Each time, the Attorney General was unable to certify the plaintiffs’ summary,” Yost said in the filing. “One submission did not include enough signatures. For the other submissions, including the plaintiffs’ most recent submission, the Attorney General concluded that the plaintiffs’ summaries were not fair representations of their proposed amendment.”

Last week the U.S. Court of Appeals for the Sixth Circuit agreed, in a split decision, with a lower court. It required Yost to accept the coalition’s wording and allow them to move forward in the process.

In a decision for the majority, Judge Karen Moore wrote that, “Plaintiffs’ First Amendment [free speech] rights were likely violated here.”

A dissenting decision from Judge John Bush said, “First Amendment does not bar the State from regulating the content of a certified initiative summary. The summary is a legislative action that, at most, constitutes government, not private, speech. But even if it were private speech, the Attorney General’s regulation of its content would still be permissible because the summary would constitute speech that occurs within a discretionary government benefit program, which the Supreme Court has held may be subject to content-based regulation.”

Justice Brett Kavanaugh put a stay on the case last week, pausing the order to print the petition.

Tool for Liberal Activists

In recent days, several briefs have been filed by others eager to see the Supreme Court settle this important question on ballot initiatives.

The election integrity group Restoring Integrity and Trust in Elections (RITE) has filed a brief supporting Ohio’s law requiring voters to receive fair and truthful summaries of proposed ballot initiatives.

“This case provides the Court with a long-awaited opportunity to decide whether the First Amendment limits the States’ sovereign authority to regulate initiative processes. The circuits are hopelessly split on this question,” RITE says in its brief.

 “Liberal activists frequently use deceptive summaries and titles to try and trick the public about the true effect of ballot initiatives, including those that weaken election integrity,” RITE spokesman Tim Murtaugh said in a statement. “States have a strong interest in regulating legislation enacted through ballot initiatives. The Supreme Court should act to preserve Ohio’s commonsense protections and uphold public trust.”

Idaho State Attorney General Raúl Labrador also filed a terse amicus brief for this case, saying his state has had similar challenges that moved through the Ninth Circuit court. “The States — not the federal Constitution — decide whether to permit ballot initiatives, and the States — not the federal courts — should choose the procedures by which initiatives qualify for their ballots. But that is not how it works in the Sixth and Ninth Circuits; in those circuits, federal judges may strike down any procedures that they deem significantly inhibit initiative sponsors’ ability to win ballot access.”

Beth Brelje is an elections correspondent for The Federalist. She is an award-winning investigative journalist with decades of media experience.