State ex rel. Ohioans for Reproductive Rights v. Ohio Ballot Bd. , 2023 Ohio 3325 ( 2023 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
ex rel. Ohioans United for Reproductive Rights v. Ohio Ballot Bd., Slip Opinion No. 2023-Ohio-
3325.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2023-OHIO-3325THE STATE EX REL . OHIOANS UNITED FOR REPRODUCTIVE RIGHTS ET AL. v.
OHIO BALLOT BOARD ET AL.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State ex rel. Ohioans United for Reproductive Rights v. Ohio
Ballot Bd., Slip Opinion No. 2023-Ohio-3325.]
Mandamus—Elections—Initiative—Proposed constitutional amendment—Ballot
language—Ohio Constitution, Article XVI, Section 1—Writ sought to
compel Ohio Ballot Board to adopt new ballot language for proposed
amendment to Ohio Constitution—Writ granted in part and denied in part.
(No. 2023-1088—Submitted September 14, 2023—Decided September 19, 2023.)
IN MANDAMUS.
__________________
Per Curiam Opinion announcing the judgment of the court.
{¶ 1} On November 7, 2023, Ohio voters will vote on Issue 1, a constitutional
amendment proposed by initiative petition titled “The Right to Reproductive
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Freedom with Protections for Health and Safety.” This case involves the ballot
language adopted by respondent Ohio Ballot Board.
{¶ 2} Relator Ohioans United for Reproductive Rights is a coalition of
statewide reproductive health, rights, and justice organizations advocating passage of
Issue 1. Relators David Hackney, Nancy Kramer, Jennifer McNally, Ebony Speakes-
Hall, and Aziza Wahby (collectively, “the committee”) are individual members of
the committee that circulated the initiative petition to propose Issue 1. Relators
contend that the ballot language is misleading, contains material omissions, and is
improperly argumentative against the amendment. Relators seek a writ of mandamus
compelling respondent Secretary of State Frank LaRose to reconvene the Ohio Ballot
Board1 and directing the ballot board to either (1) adopt the full text of the proposed
amendment as the ballot language or (2) prescribe lawful ballot language.
{¶ 3} We agree with relators that the term “citizens of the State” in the ballot
language is misleading. We therefore grant a limited writ of mandamus ordering
the secretary to reconvene the ballot board forthwith and ordering the board to adopt
ballot language that accurately describes that the proposed amendment regulates
actions of the “State.” The writ is denied in all other respects.
I. FACTUAL AND PROCEDURAL BACKGROUND
{¶ 4} The committee submitted the proposed constitutional amendment to
Attorney General Dave Yost pursuant to R.C. 3519.01(A). And the committee
submitted the petition to the secretary of state’s office with sufficient signatures to
qualify for the November ballot. The proposed amendment’s qualification for the
ballot triggered the ballot board’s duty under Article II, Section 1g of the Ohio
Constitution to prescribe the language that voters will see on the ballot.
1. The individual members of the ballot board are respondents Secretary of State Frank LaRose (also
the chair of the board), Senator Theresa Gavarone, Senator Paula Hicks-Hudson, William Morgan,
and Representative Elliot Forhan.
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{¶ 5} Under Article II, Section 1g, the ballot board shall prescribe the ballot
language “in the same manner, and subject to the same terms and conditions, as
apply to issues submitted by the general assembly pursuant to Section 1 of Article
XVI of [the Ohio] constitution.” In turn, Article XVI, Section 1 provides:
The ballot language for such proposed amendments shall be
prescribed by a majority of the Ohio ballot board, consisting of the
secretary of state and four other members, who shall be designated
in a manner prescribed by law and not more than two of whom shall
be members of the same political party. The ballot language shall
properly identify the substance of the proposal to be voted upon.
The ballot need not contain the full text nor a condensed text of the
proposal. The board shall also prepare an explanation of the
proposal, which may include its purpose and effects, and shall
certify the ballot language and the explanation to the secretary of
state not later than seventy-five days before the election. The ballot
language and the explanation shall be available for public inspection
in the office of the secretary of state.
{¶ 6} The ballot board met to prescribe and certify the ballot language for
the proposed amendment. At the meeting, Secretary of State Frank LaRose, chair
of the board, proposed the ballot language, which was opposed by two members of
the ballot board. Ballot-board member Senator Paula Hicks-Hudson made a motion
for the board to “amend” the secretary’s proposed language and instead use the full
text of the proposed amendment, as proposed by the committee in a letter submitted
to the board. Board member Representative Elliot Forhan joined the motion and
spoke against the secretary’s proposed language, arguing that it was “rife with
misleading and defective language” and identifying several problems he saw with
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the proposed language. However, Senator Hicks-Hudson’s motion failed by a
three-to-two vote.
{¶ 7} Following the failure of her motion to use the amendment text as the
ballot language, Senator Hicks-Hudson made another motion, this time proposing
changes to the secretary’s proposed ballot language. She proposed three
amendments to the secretary’s proposed language: (1) substitute the phrase
“reproductive medical decisions” for “reproductive medical treatment”; (2) change
the phrase “the citizens of the State of Ohio” to just “the State of Ohio”; and (3)
replace the phrase “unborn child” with “unborn fetus.” Senator Hicks-Hudson’s
motion failed by a three-to-two vote.
{¶ 8} The secretary then moved for the ballot board to approve the ballot
language he had proposed. The board approved the secretary’s language by a three-
to-two vote.
{¶ 9} Relators filed this original action against the ballot board and its
members, seeking a writ of mandamus compelling the secretary to reconvene the
board. Relators also seek an order compelling the board either to (1) prescribe the
amendment’s full text as the ballot language or (2) direct the board to prescribe
lawful ballot language. With respect to the request for “lawful ballot language,”
relators identify ten features that the ballot language should either include or omit.
The parties have submitted evidence and merit briefs in accordance with the
expedited-election-case schedule in S.Ct.Prac.R. 12.08.
II. ANALYSIS
A. The Applicable Legal Standard
{¶ 10} To be entitled to a writ of mandamus against the ballot board,
relators must establish a clear legal right to the requested relief, a corresponding
clear legal duty on the part of the board to provide it, and the lack of an adequate
remedy in the ordinary course of the law. State ex rel. Voters First v. Ohio Ballot
Bd., 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 22. Relators must
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prove their case by clear and convincing evidence. State ex rel. Waters v. Spaeth,
131 Ohio St.3d 55, 2012-Ohio-69, 960 N.E.2d 452, ¶ 13.
{¶ 11} Relators lack an adequate remedy in the ordinary course of the law
because the November 7 election is less than 60 days away. See State ex rel. West
v. LaRose, 161 Ohio St.3d 192, 2020-Ohio-4380, 161 N.E.3d 631, ¶ 15. The
remaining mandamus requirements ask this court to determine whether the ballot
board engaged in fraud or corruption, abused its discretion, or clearly disregarded
applicable law. Id. at ¶ 16. Relators do not allege fraud or corruption here. Thus,
the dispositive issue before us is whether the ballot board abused its discretion or
clearly disregarded applicable law in adopting the ballot language, see Voters First
at ¶ 23.
{¶ 12} Article XVI, Section 1 of the Ohio Constitution requires that the ballot
language “properly identify the substance of the proposal to be voted upon.” This
court “shall not” hold that ballot language is invalid “unless it is such as to mislead,
deceive, or defraud the voters.” Id. Applying these constitutional requirements, we
examine whether the language tells voters what they are being asked to vote on and
whether the language is impermissibly argumentative, either in favor of or against
the issue. State ex rel. One Person One Vote v. Ohio Ballot Bd., __ Ohio St.3d __,
2023-Ohio-1928, __ N.E.3d __, ¶ 8, citing State ex rel. Bailey v. Celebrezze, 67
Ohio St.2d 516, 519, 426 N.E.2d 493 (1981). “If there are defects in ballot
language, we examine the defects as a whole and determine whether their
cumulative effect violates the constitutional standard.” Id.; see also Voters First at
¶ 26.
B. Does the Ballot Language Mislead the Voters?
{¶ 13} Relators argue that the board-approved ballot language is defective
in several ways. They contend that the ballot language misleads voters about (1)
the right the amendment would create, (2) whom the amendment would restrict, (3)
whether the amendment would protect an individual’s right to continue a
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pregnancy, (4) the scope of a treating physician’s discretion to determine “fetal
viability,” and (5) how the amendment would limit regulation by the state. For the
reasons explained below, we agree with relators that the ballot language approved
by the ballot board misleads the average voter about whose actions the amendment
restricts. But the ballot language is not defective in any other respect.
1. The right the amendment would create
{¶ 14} First, relators argue that the ballot language approved by the ballot
board improperly misleads voters about what right the proposed amendment would
create if approved. This issue relates to the following portions of the proposed
amendment and ballot language:
Proposed A. Every individual has a right to make and carry out one’s
Amendment own reproductive decisions, including but not limited to
decisions on:
1. contraception;
2. fertility treatment;
3. continuing one’s own pregnancy;
4. miscarriage care; and
5. abortion.
B. The State shall not, directly or indirectly, burden, penalize,
prohibit, interfere with, or discriminate against either:
1. An individual’s voluntary exercise of this right or
2. A person or entity that assists an individual
exercising this right[.]
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Ballot The proposed amendment would:
Language
• Establish in the Constitution of the State of Ohio an
individual right to one’s own reproductive medical
treatment, including but not limited to abortion;
• Create legal protections for any person or entity that
assists a person with receiving reproductive medical
treatment, including but not limited to abortion;
{¶ 15} Relators take issue with the ballot language’s substitution of
“reproductive medical treatment” for “reproductive decisions.” They argue that the
ballot board’s phraseology is misleading in that a “decision” is not the same as
“treatment.” According to relators, a reproductive decision connotes an
individual’s “considered determination about any matter related to producing
offspring” while the term “treatment” is the action or way of treating a patient
medically or surgically. Relators argue that the ballot language’s use of
“reproductive medical treatment” suggests that the proposed amendment would
grant a right to medical care, which significantly changes the amendment’s
meaning. Relators say that the phrase “reproductive medical treatment,” when read
in context, connotes “an affirmative right to government-provided ‘reproductive
medical treatment’ of any sort.” (Emphasis sic.)
{¶ 16} Relators’ argument focuses on the proposed amendment’s grant of a
right to make decisions involving reproduction. The amendment’s text states that
every individual has a right “to make and carry out one’s own reproductive
decisions.” (Emphasis added.) While relators emphasize the individual right to
“make” a decision, they ignore that the phrase “carry out” is at the heart of the
amendment’s grant of rights. If the amendment provided only a protection of the
individual’s right to “make” a decision, it would be a shell of a right; as respondents
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correctly note, “a person’s internal determinations lay well outside the State’s
regulatory authority,” and “[i]nforming voters that they continue to be free to make
their own decisions in their minds does not tell them what effect the amendment
would have in practice.” The amendment is not designed to protect just an
individual’s right to make a decision; it grants to the individual a right to “carry
out” that decision without state interference, which is the crux of the amendment’s
substance.
{¶ 17} The relevant question is whether the term “medical treatment” is
misleading in its description of an individual’s right to “carry out” a decision
involving reproduction. In our view, the ballot board’s use of the term
“reproductive medical treatment” is imprecise at worst. This imprecision, however,
does not render the ballot language misleading. The ballot language accurately tells
voters that the proposed amendment, if passed, would protect an individual’s right
to carry out such decisions by obtaining medical treatment free from government
interference. And although some decisions involving reproduction do not require
medical treatment, some do. The ballot language expresses the amendment’s intent
to prevent government interference with an individual’s pursuit of medical
treatment to carry out those decisions.
{¶ 18} Relators also argue that the term “medical treatment” is misleading
in that it gives the impression that passage of the proposed amendment would grant
an individual right to state-provided medical treatment. But the ballot language
says nothing about state-provided medical treatment. It states that the amendment
establishes “an individual right to one’s own reproductive medical treatment.”
(Emphasis added.) This describes an individual right with which the state cannot
interfere, not a benefit provided by the state.
{¶ 19} Relators also argue that the ballot language referring to “medical
treatment” is misleading because of omissions that “obscure the nature of the right
that the Amendment would create.” Specifically, relators emphasize that the ballot
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language mentions only one category of the proposed amendment’s listed
decisions—abortion—while the amendment covers at least five. Failing to mention
the four other categories is misleading, say relators, because it “falsely suggests
ambiguity about what categories of decision the overarching right ‘to make and
carry out one’s own reproductive decisions’ covers.” Relators argue that the ballot
language’s emphasis on abortion to the exclusion of other decisions reinforces the
impression that the amendment creates a right to state-provided abortions.
{¶ 20} Relators have not shown that the ballot language is misleading in this
respect. Any omission in ballot language “must not be material, i.e., its absence
must not affect the fairness or accuracy of the text.” Voters First, 133 Ohio St.3d
257, 2012-Ohio-4149, 978 N.E.2d 119, at ¶ 30. Nor may ballot language “omit any
‘essential part’ of the proposed amendment.” State ex rel. Cincinnati for Pension
Reform v. Hamilton Cty. Bd. of Elections, 137 Ohio St.3d 45, 2013-Ohio-4489, 997
N.E.2d 509, ¶ 58, quoting State ex rel. Minus v. Brown, 30 Ohio St.2d 75, 81, 283
N.E.2d 131 (1972). Here, while the ballot language might have been more
comprehensive if it included references to the other decisions listed in the proposed
amendment, the omission is not material when considering the amendment as a
whole.
{¶ 21} The proposed amendment’s grant of rights is expressly
nonexhaustive; it says that the individual right conferred by the amendment applies
to “one’s own reproductive decisions, including but not limited to” five specific
kinds of decisions, including abortion. (Emphasis added.) The ballot language
approved by the ballot board tracks the “including but not limited to” language that
is in the amendment. The fact that the ballot language enumerates only abortion
does not render it misleading when considering that an additional paragraph of the
amendment’s text addresses abortion specifically. While the amendment’s text
enumerates five types of decisions, it provides specific detail relating to only one
of them—namely, abortion. Indeed, the amendment describes the circumstances
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when abortion may be prohibited and defines “fetal viability”—a term that the
amendment uses only in its provision concerning abortion. Given that the
amendment largely concerns when an abortion may or may not be prohibited, the
board-approved ballot language’s focus on that aspect of the amendment is not
misleading.
2. Whom the proposed amendment would restrict
{¶ 22} Second, relators contend that the ballot language approved by the
ballot board “grossly misleads” voters about “the actor to which the Amendment’s
restrictions would apply.” This issue relates to the following portions of the
proposed amendment and ballot language:
Proposed B. The State shall not, directly or indirectly, burden, penalize,
Amendment prohibit, interfere with, or discriminate against either:
1. An individual’s voluntary exercise of this right or
2. A person or entity that assists an individual
exercising this right,
unless the State demonstrates that it is using the least
restrictive means to advance the pregnant individual’s health
in accordance with widely accepted and evidence-based
standards of care.
***
C. As used in this Section:
***
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2. “State” includes any governmental entity and any political
subdivision.
Ballot The proposed amendment would:
Language
***
• Prohibit the citizens of the State of Ohio from directly
or indirectly burdening, penalizing, or prohibiting
abortion before an unborn child is determined to be
viable, unless the State demonstrates that it is using
the least restrictive means.
***
• Only allow the citizens of the State of Ohio to prohibit
an abortion after an unborn child is determined by a
pregnant woman’s treating physician to be viable and
only if the physician does not consider the abortion
necessary to protect the pregnant woman’s life or
health;
{¶ 23} Relators argue that the ballot language’s use of the phrase “citizens
of the State of Ohio” instead of the “State”—as used and defined in the proposed
amendment itself—distorts the amendment’s text and meaning. They argue that by
using the phrase “citizens of the State,” the ballot language “converts a right held
by the citizens against the State into a restriction enforced by the State against the
citizens.” Moreover, relators contend that the term “citizens of the State” raises for
the average voter questions about how the amendment restricts citizens’ rights.
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That is, relators argue that the ballot language suggests that the amendment could
restrict certain activities of private citizens, such as protesting outside an abortion
clinic. Relators also raise the concern that the term could be interpreted to mean
that Ohio citizens would be forever barred from proposing by initiative petition
future amendments that would limit or restrict abortion.
{¶ 24} In defending the “citizens of the State” phraseology, respondents
rely on the bedrock principle found in Ohio Constitution, Article I, Section 2. That
provision states: “All political power is inherent in the people. Government is
instituted for their equal protection and benefit, and they have the right to alter,
reform, or abolish the same, whenever they may deem it necessary.” Thus,
respondents posit that it is not misleading to say that the proposed amendment
would prohibit “the citizens of the State” from taking certain action, because any
action taken by the state through a representative government is necessarily action
taken by the citizens of the state. See State ex rel. Milhoof v. Bd. of Edn., 76 Ohio
St. 297, 307, 81 N.E. 568 (1907) (stating the principle that government “is by the
people, through their chosen representatives”). In other words, respondents argue,
the “State” and the “citizens of the State” are synonymous from the standpoint of
the exercise of governmental power.
{¶ 25} Further, respondents argue, the ballot language contemplates that
laws may be passed through citizen initiative. Citizen-initiated statutes may be
passed by the General Assembly or be submitted to the voters for approval or
rejection under Article II, Section 1b of the Ohio Constitution. Therefore,
respondents say, the “citizens of the State” language recognizes that no law may
conflict with the Ohio Constitution, whether it be passed by the General Assembly
or by citizen initiative. The ballot language therefore informs the voter that passage
of the proposed amendment would mean that “the citizens of the State” may not
override the constitutional amendment through a citizen-initiated statute.
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{¶ 26} We agree with relators that the term “citizens of the State of Ohio”
would be misleading to the average voter. See Markus v. Trumbull Cty. Bd. of
Elections, 22 Ohio St.2d 197, 203, 259 N.E.2d 501 (1970) (stating that ballot
language must “assure a free, intelligent and informed vote by the average citizen
affected”). Because of the way the word “citizens” is used, the average voter might
interpret the ballot language to mean that the proposed amendment would prohibit
individual citizens—i.e., private actors—from taking actions to burden, penalize,
or prohibit abortion. This is particularly true when considering the language of the
first bullet point quoted above: “Prohibit the citizens of the State of Ohio from
directly or indirectly burdening, penalizing, or prohibiting abortion before an
unborn child is determined to be viable, unless the State demonstrates that it is using
the least restrictive means.” (Emphasis added.) By using “citizens of the State” in
the prohibition clause and a different term—“the State”—in the later clause
describing who must demonstrate the least restrictive means, the language
confusingly suggests that “citizens of the State” means something different than
“the State.”
{¶ 27} Respondents identify no provision of the Ohio Constitution or the
Ohio Revised Code that uses “citizens of the State” interchangeably with “the
State.” The Ohio Constitution does not ever use the phrase “citizens of the State.”
However, the Constitution does contain provisions that differentiate between
government and individual citizens. For example, Article I, Section 2 provides that
“political power is inherent in the people” and that “[g]overnment is instituted for
their equal protection and benefit.” (Emphasis added.) And in declaring a
constitutional limitation on the use of the initiative power to pass constitutional
amendments that would work as a restraint of trade, Article II, Section 1e(B)(1)
provides that the “[r]estraint of trade or commerce [is] injurious to this state and its
citizens.” (Emphasis added.) Thus, “citizens” and “the State” are not necessarily
synonymous in the Ohio Constitution.
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{¶ 28} Moreover, a search of the Revised Code reveals that the term
“citizens of the state” is often used in reference to citizens being the ones for whose
benefit the state or local government is required to act, not as persons exercising
governmental power. See, e.g., R.C. 181.24(A) (Ohio Criminal Sentencing
Commission shall recommend a sentencing structure “that is readily
understandable by the citizens of the state”); R.C. 1531.04(D) (among the duties of
the Division of Wildlife of the Ohio Department of Natural Resources is to
“educate, and inform the citizens of the state about conservation”); R.C.
2744.01(C)(1)(b) (defining “governmental function” as a function of a political
subdivision that “is for the common good of all citizens of the state”); R.C.
3334.02(A) (creating Ohio’s college-savings program “to promote a well-educated
and financially secure population to the ultimate benefit of all citizens of the state”);
R.C. 5119.37(O) (criminal proceedings may be requested against a community
addiction-services provider when “necessary for the protection of the citizens of the
state”).
{¶ 29} Accordingly, the ballot language approved by the ballot board would
not accurately tell the voters what they are being asked to vote on. Instead of
describing a proposed amendment that would establish a right to carry out
reproductive decisions free from government intrusion, the ballot language’s use of
the term “citizens of the State” would mislead voters by suggesting that the
amendment would limit the rights of individual citizens to oppose abortion. We
therefore agree with relators that the board-approved ballot language’s use of the
term “citizens of the State” in lieu of “the State” violates the constitutional standard
in Article XVI, Section 1 requiring the ballot language “to properly identify the
substance of the proposal.”
3. The right to continue a pregnancy
{¶ 30} Third, relators argue that the ballot language approved by the ballot
board is misleading about whether the proposed amendment protects a woman’s
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right to continue a pregnancy. According to relators, the ballot language implies
that if an individual wants to proceed with a pregnancy against medical advice, she
will not be permitted to do so. This issue relates to the following portions of the
amendment and ballot language:
Proposed A. Every individual has a right to make and carry out one’s
Amendment own reproductive decisions, including but not limited to
decisions on:
***
3. continuing one’s own pregnancy;
***
B. The State shall not, directly or indirectly, burden, penalize,
prohibit, interfere with, or discriminate against either:
1. An individual’s voluntary exercise of this right * * *
***
However, abortion may be prohibited after fetal viability. But
in no case may such an abortion be prohibited if in the
professional judgment of the pregnant patient’s treating
physician it is necessary to protect the pregnant patient’s life or
health.
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Ballot The proposed amendment would:
Language
***
• Prohibit the citizens of the State of Ohio from directly
or indirectly burdening, penalizing, or prohibiting
abortion before an unborn child is determined to be
viable, unless the State demonstrates that it is using the
least restrictive means.
***
• Only allow the citizens of the State of Ohio to prohibit
an abortion after an unborn child is determined by a
pregnant woman’s treating physician to be viable and
only if the physician does not consider the abortion
necessary to protect the pregnant woman’s life or
health; and
• Always allow an unborn child to be aborted at any stage
of the pregnancy, regardless of viability if, in the
treating physician’s determination, the abortion is
necessary to protect the pregnant woman’s life or health.
{¶ 31} Whereas the proposed amendment’s text confers “a right to make
and carry out one’s own reproductive decisions,” relators contend that the ballot
language suggests that the physician’s decision may override the patient’s wishes.
That is, relators argue that the ballot language implies that a pregnant woman could
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be forced to obtain an abortion she does not want if her treating physician deems
an abortion necessary to protect her life or health.
{¶ 32} This argument lacks merit because it is an inaccurate
characterization of the ballot language. The ballot language says that the proposed
amendment would always allow an abortion when a physician decides that an
abortion is necessary to protect the life or health of the pregnant woman, even after
viability. The language does not imply that the pregnant woman would be required
to obtain an abortion. The ballot language is more naturally understood as meaning
that the pregnant woman would be allowed to obtain a postviability abortion if
necessary to protect her life or health.
{¶ 33} Accordingly, we conclude that the ballot language approved by the
ballot board does not mislead voters about an individual’s right to continue one’s
own pregnancy.
4. Physician’s discretion
{¶ 34} Fourth, relators argue that the ballot language approved by the ballot
board “misleads voters about the degree of a physician’s discretion.” This issue
relates to the following portions of the amendment and ballot language:
Proposed C. As used in this Section:
Amendment
1. “Fetal viability” means “the point in a pregnancy
when, in the professional judgment of the pregnant
patient’s treating physician, the fetus has a significant
likelihood of survival outside the uterus with reasonable
measures. This is determined on a case-by-case basis.”
Ballot The proposed amendment would:
Language
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***
• Grant a pregnant woman’s treating physician the
authority to determine, on a case-by-case basis, whether
an unborn child is viable;
{¶ 35} According to relators, the ballot language is misleading because it
“suggests a physician has entirely unfettered authority to determine fetal viability
as the physician sees fit in each particular case.” In fact, according to relators, the
proposed amendment’s language constrains a physician’s discretion by defining
specifically what “fetal viability” means and by requiring the physician to exercise
professional judgment in deciding whether the definition is met on a case-by-case
basis. By omitting the amendment’s definition of “fetal viability” and the
requirement that a physician exercise professional judgment, relators argue, the
ballot language falsely suggests that physicians have unfettered discretion when
making viability determinations.
{¶ 36} The ballot language’s statement that a pregnant woman’s treating
physician has the authority to determine viability “on a case-by-case basis” is an
accurate summary of the proposed amendment’s text. That the ballot language does
not specify that a physician must exercise professional judgment does not render
the ballot language inaccurate, misleading, deceptive, or fraudulent. To accept
relators’ argument would assume that voters would not know that physicians
exercise professional judgment. But this assumption defies common experience:
the average voter who seeks a physician’s assistance does so because the physician
exercises professional judgment. It is therefore not surprising that Ohio law
requires physicians to meet professional standards of care, to safeguard the
expectation that they will exercise professional judgment. See R.C. 4731.22(B)(6)
(subjecting physicians to discipline for departing from the “minimal standards of
care of similar practitioners under the same or similar circumstances”) and (B)(18)
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(subjecting physicians to discipline for violating ethical codes of national
professional associations); Bouquett v. Ohio State Med. Bd., 123 Ohio App.3d 466,
473, 704 N.E.2d 583 (10th Dist.1997) (“R.C. 4731.22(B) was enacted under the
state’s police powers in order to protect the public’s safety and welfare”).
{¶ 37} For these reasons, the ballot language approved by the ballot board
does not mislead voters about the discretion granted to physicians in the proposed
amendment.
5. How the proposed amendment would limit state regulation
{¶ 38} Fifth, relators argue that the ballot language approved by the ballot
board misleads voters about “the circumstances in which the State may regulate
reproductive decision-making.” Relators’ argument focuses on the differences
between how the proposed amendment’s text and the ballot language use the term
“least restrictive means.” This issue relates to the following portions of the
amendment and ballot language:
Proposed B. The State shall not, directly or indirectly, burden, penalize,
Amendment prohibit, interfere with, or discriminate against either:
1. An individual’s voluntary exercise of this right or
2. A person or entity that assists an individual
exercising this right,
unless the State demonstrates that it is using the least restrictive
means to advance the pregnant individual’s health in
accordance with widely accepted and evidence-based standards
of care.
Ballot The proposed amendment would:
Language
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***
• Prohibit the citizens of the State of Ohio from directly
or indirectly burdening, penalizing, or prohibiting
abortion before an unborn child is determined to be
viable, unless the State demonstrates that it is using the
least restrictive means;
{¶ 39} Relators argue that the proposed amendment’s text permits state
interference with an individual’s right to make and carry out reproductive decisions
so long as the state uses the “least restrictive means to advance the pregnant
individual’s health in accordance with widely accepted and evidence-based
standards of care.” Relators argue that the ballot language does not explain what
interest the least restrictive means must advance to be valid.
{¶ 40} For their part, respondents argue that the ballot language has the
“sensical and ordinary meaning” that the state “cannot burden, penalize, or prohibit
abortion prior to viability unless it does so by means that are the least restrictive on
the pregnant woman.” (Emphasis added.) In other words, even though the ballot
language does not specify that the phrase “least restrictive means” applies to the
pregnant woman’s health, respondents argue that the language makes sense only if
that is the case. But respondents do not explain how a voter would naturally read
the phrase “least restrictive means” as applying to the pregnant woman, much less
the pregnant woman’s health.
{¶ 41} However, whether the ballot board could have employed better
language is not the issue before us. “[T]he sole issue is whether the board’s
approved ballot language ‘is such as to mislead, deceive, or defraud the voters.’ ”
Voters First, 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, at ¶ 26,
quoting Ohio Constitution, Article XVI, Section 1; see also Bailey, 67 Ohio St.2d
at 519, 426 N.E.2d 493. Thus, the ballot board’s language is not invalid simply
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because this court “might have used different words to describe the language used
in the proposed amendment,” Bailey at 519. The ballot language approved by the
ballot board accurately conveys that if the amendment is approved by the voters,
previability abortions generally may not be prohibited. While a description of what
the “least restrictive means” applies to would be helpful, its absence does not
mislead, deceive, or defraud voters.
C. Is the Ballot Language Improperly Argumentative?
{¶ 42} When assessing ballot language under Article II, Section 1g of the
Ohio Constitution, this court also considers whether the language is improperly
argumentative in favor of or against the issue. One Person One Vote, __ Ohio St.3d
__, 2023-Ohio-1928, __ N.E.3d __, at ¶ 8; see also Voters First at ¶ 26, quoting
Bailey at 519. Relators argue that the ballot language attempts to persuade voters
to oppose the proposed amendment by using the term “unborn child” instead of
“fetus,” the term used in the proposed amendment’s text.
{¶ 43} Relators argue that the term “unborn child” is improperly
argumentative because it injects the ballot-board majority’s “ethical judgment or
personal view” into the ballot language. According to relators, “[o]ne’s judgment
about the developmental stage at which the ethical status of ‘unborn child’ attaches
has obvious implications for whether and how one believes abortion should be
regulated.” Relators argue that the terms “fetus” or “fetal viability,” which appear
in the proposed amendment’s text, are scientifically accurate and do not carry the
same moral judgment as “unborn child.”
{¶ 44} We reject relators’ argument. Importantly, relators do not argue that
the term “unborn child” is factually inaccurate. To the contrary, their argument
asserts that “unborn child” is a divisive term that elicits a moral judgment whereas
the terms “fetus” and “fetal viability” are more neutral and scientific. But this
argument does not establish that the ballot board’s language constitutes improper
persuasion. “[I]f ballot language is factually accurate and addresses a subject that
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is in the proposed amendment itself, it should not be deemed argumentative.” State
ex rel. Cincinnati Action for Hous. Now v. Hamilton Cty. Bd. of Elections, 164 Ohio
St.3d 509, 2021-Ohio-1038, 173 N.E.3d 1181, ¶ 26, citing State ex rel. Cincinnati
for Pension Reform v. Hamilton Cty. Bd. of Elections, 137 Ohio St.3d 45, 2013-
Ohio-4489, 997 N.E.2d 509, ¶ 49.
{¶ 45} Relators also contend that the “ballot language improperly attempts
to persuade voters by using absolute terms where they do not apply.” They point
to the ballot language stating that the proposed amendment would:
• Only allow the citizens of the State of Ohio to prohibit an
abortion after an unborn child is determined by a pregnant
woman’s treating physician to be viable and only if the
physician does not consider the abortion necessary to protect
the pregnant woman’s life or health; and
• Always allow an unborn child to be aborted at any stage of
pregnancy, regardless of viability if, in the treating
physician’s determination, the abortion is necessary to
protect the pregnant woman’s life or health.
(Emphasis added.) Relators argue that by twice using the adverb “only,” the ballot
language “implies that the Amendment imposes unreasonably strict limits on state
authority” to prohibit abortion after viability. Likewise, by leading with the term
“always” in the next bullet point, relators argue, the language gives the impression
that the amendment would allow abortions before and after viability without any
restrictions. Relators also argue that the second bullet point quoted above repeats
information addressed in other parts of the ballot language and was therefore
included only to motivate voters to vote against the amendment.
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{¶ 46} We disagree with relators because the ballot language is factually
accurate. While relators do not like the way in which the language is phrased, the
structure of the statements is not improperly argumentative. As stated above, this
court will not deem language to be argumentative when it is accurate and addresses
a subject in the proposed amendment. Cincinnati Action for Hous. Now at ¶ 26.
D. A Limited Writ is Warranted
{¶ 47} In One Person One Vote, this court stated that it examines any
“defects [in ballot language] as a whole and determine[s] whether their cumulative
effect violates the constitutional standard.” __ Ohio St.3d __, 2023-Ohio-1928, __
N.E.3d __, at ¶ 8. Relators argue that the cumulative effect of the defects they
identify are such that the ballot language is constitutionally defective.
{¶ 48} For the reasons stated above, we conclude that the term “citizens of
the State” is misleading in that it suggests to the average voter that the proposed
amendment would restrict the actions of individual citizens instead of the
government. While this is the lone defect in the ballot language, its effect violates
the constitutional standard. Because of this defect, the ballot language as approved
by the ballot board would not accurately tell the voters what they are being asked
to vote on. We therefore grant a limited writ of mandamus ordering the ballot board
and the secretary of state to reconvene forthwith and adopt ballot language that
accurately conveys that the amendment regulates the ability of the state, as defined
by the amendment, to burden, penalize, or prohibit abortion. The writ is denied in
all other respects; in particular, in response to relators’ request that the ballot board
be ordered to adopt the amendment’s full text as the ballot language, it is noted that
the Ohio Constitution commits the drafting of ballot language to the ballot board
and does not require that the ballot contain the full text of a proposed amendment.
See Ohio Constitution, Article XVI, Section 1, paragraph 2.
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IV. CONCLUSION
{¶ 49} By using the term “the citizens of the State,” the ballot language
approved by the ballot board might mislead the voters into thinking that the
proposed amendment regulates nongovernmental conduct, when it does not. We
therefore grant a limited writ of mandamus ordering Secretary of State LaRose and
the Ohio Ballot Board to reconvene forthwith and adopt ballot language that
accurately conveys that the proposed amendment limits the ability of the state, as
defined by the amendment, to burden, penalize, or prohibit abortion. The writ is
denied in all other respects.
Writ granted in part
and denied in part.
FISCHER, J., concurs.
DONNELLY, J., concurs, with an opinion.
STEWART, J., concurs in part and dissents in part, with an opinion.
BRUNNER, J., concurs in part and dissents in part, with an opinion.
DETERS, J., concurs in part and dissents in part, with an opinion joined by
KENNEDY, C.J., and DEWINE, J.
_________________
DONNELLY, J., concurring.
{¶ 50} Here, respondent Ohio Ballot Board has one duty: to approve the
language that will appear on the November election ballot as Issue 1. The statutory
scheme that governs that duty grants the board two options: provide the full text or
a condensed text. See R.C. 3505.06(E). But see Ohio Constitution, Article XVI,
Section 1 (which states, among other things, that the “ballot language need not
contain the full text nor a condensed text of the proposal”).
{¶ 51} It’s unfortunate that advocacy seems to have infiltrated a process that
is meant to be objective and neutral. See opinion concurring in part and dissenting
in part of Brunner, J. (describing how some members of the board are using their
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January Term, 2023
position on the board to skew the language of the amendment to advocate for the
position they favor). Nevertheless, I am confident that the voters will be fully
informed about the proposed amendment when they enter the voting booth.
_________________
STEWART, J., concurring in part and dissenting in part.
{¶ 52} Respondent Ohio Ballot Board has a clear and defined constitutional
duty—prescribe ballot language that properly identifies the substance of the proposal
to be voted on. Ohio Constitution, Article XVI, Section 1. The board failed to meet
that duty here. Instead, it crafted partisan ballot language designed to do any number
of things, but not simply designed to do its job—that is, inform voters of the substance
of the proposed amendment. The proposed amendment in this case is clear and
succinct and uses neutral language to accurately describe the full scope of rights the
amendment would protect. There is no reason whatsoever for the board to use any
language other than what is included in the proposed amendment. In fact, the board’s
rendition is more wordy and less clear, and it appears to be politically charged. As
evidenced by the multiple opinions generated by this case, the board’s language does
anything but simply identify the substance of the proposed amendment. I concur in
the portion of the judgment that grants the requested writ of mandamus in part and
orders respondents to change the ballot language from “the citizens of the State of
Ohio” to “the State of Ohio,” but I would go further and grant the requested writ in
its entirety. Therefore, I concur in part and dissent in part.
_________________
BRUNNER, J., concurring in part and dissenting in part.
{¶ 53} The power of initiative petition to amend the Ohio Constitution is
the most significant power of self-governance held by the people. See State ex rel.
One Person One Vote v. Ohio Ballot Bd., ___ Ohio St.3d ___, 2023-Ohio-1928,
___ N.E.3d ___, ¶ 40 (Brunner, J., concurring in part and dissenting in part). This
power grants to the people of Ohio “the ultimate decision on what the Constitution
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should say and how it should say it,” State ex rel. DeBlase v. Ohio Ballot Bd., ___
Ohio St.3d ___, 2023-Ohio-1823, ___ N.E.3d ___, ¶ 39 (Kennedy, C.J., concurring
in judgment only). The Ohio Constitution explicitly prioritizes this form of direct
democracy: “The first aforestated power reserved by the people is designated the
initiative.” (Emphasis added.) Ohio Constitution, Article II, Section 1a.
{¶ 54} Unquestionably, what our Constitution says—the actual words
used—is paramount in understanding the rights it confers and protects. Discerning
the intent of the people is the “ ‘polestar in the construction of constitutional * * *
provisions,’ ” State ex rel. Wallace v. Celina, 29 Ohio St.2d 109, 111-112, 279
N.E.2d 866 (1972), quoting Castleberry v. Evatt, 147 Ohio St. 30, 67 N.E.2d 861(1946), paragraph one of the syllabus. Therefore, when asked to review ballot
language for a proposed constitutional amendment, this court must ensure that
voters know what they are being asked to vote on.
{¶ 55} A majority of respondent Ohio Ballot Board’s members2 shirked
their responsibility to uphold this principle. They obfuscated the actual language
of the proposed state constitutional amendment by substituting their own language
and creating out of whole cloth a veil of deceit and bias in their desire to impose
their views on Ohio voters about what they think is the substance of the proposed
amendment. And they did this by completely recrafting simple and straightforward
amendment language into a version that contains more words than the amendment
itself. The evidence in the record makes clear that it was their intent to use their
positions on the board to influence the outcome of the election with the ballot
language the board certified for the proposed amendment.
2. The individual members of the ballot board are respondents Secretary of State Frank LaRose (also
the chair of the board), Senator Theresa Gavarone, Senator Paula Hicks-Hudson, William Morgan,
and Representative Elliot Forhan.
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January Term, 2023
{¶ 56} The board’s decision threatens to divest Ohioans of their
fundamental right to decide what the Constitution should say and how it should be
said—a right held by the people of Ohio, in whom “[a]ll political power is
inherent,” Ohio Constitution, Article I, Section 2. For a constitutional amendment
is just that—words that are added or changed within the state’s most elemental and
basic governing document. By completely rewriting the proposed amendment into
ballot language that is wordier and less substantive (e.g., the ballot language does
not mention contraceptives, miscarriage, or the continuation of a pregnancy) than
the amendment itself, the board miserably fails to fairly present the issue to Ohio
voters according to its constitutional duty.
{¶ 57} And while I agree with the lead opinion regarding the technical
problems with the ballot language substituting “citizens of the State of Ohio” for
“the State,” I would go further and would find that there is clear evidence in the
record that the board has defrauded the voters, attempting to deprive them of their
right of self-determination in amending their Constitution in the manner set forth
in Article II, Section 1a.
{¶ 58} As the lead opinion states:
Article XVI, Section 1 of the Ohio Constitution requires that
the ballot language “properly identify the substance of the proposal to
be voted upon.” This court “shall not” hold that ballot language is
invalid “unless it is such as to mislead, deceive, or defraud the voters.”
Id. Applying these constitutional requirements, we examine whether
the language tells voters what they are being asked to vote on and
whether the language is impermissibly argumentative, either in
favor of or against the issue. State ex rel. One Person One Vote v.
Ohio Ballot Bd., __ Ohio St.3d __, 2023-Ohio-1928, __ N.E.3d __,
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¶ 8, citing State ex rel. Bailey v. Celebrezze, 67 Ohio St.2d 516, 519,
426 N.E.2d 493 (1981).
Lead opinion, ¶ 12; see also Ohio Constitution, Article XVI, Section 1 and Article
II, Section 1g. The board has created misleading, argumentative language that goes
beyond the full text of the proposed amendment, both structurally and
substantively. The prescribed ballot language does not condense or accurately
summarize the full text of the proposed amendment, and the evidence in the record
shows that the ballot language was informed and motivated by an effort to defeat
the initiative.
{¶ 59} We are duty bound to invalidate the language and require new,
constitutional ballot language. Because the language of the proposed amendment
is clear and straightforward, there is no need to interpret, reword, or embellish it. It
says what it says. Ohioans deserve the right to read it on their ballots. That a voter
may find a copy of the proposed amendment’s language hanging on a wall in his or
her polling place is not adequate or sufficient. Because “[t]he powers of initiative
and referendum should be liberally construed to effectuate the rights reserved,”
State ex rel. Hodges v. Taft, 64 Ohio St.3d 1, 5, 591 N.E.2d 1186 (1992), the board
has failed Ohio voters, who should have the right to have placed before them on
their ballots the actual text of the proposed amendment.
I. Background
{¶ 60} In July 2023, relators, Ohioans United for Reproductive Rights and
several individual members of the committee that circulated the petition to propose
Issue 1 (“the committee”),3 submitted signatures from over 700,000 Ohioans in
support of a proposed amendment to Article I of the Ohio Constitution. The petition
specified that the proposed amendment was titled “The Right to Reproductive
3. Relators David Hackney, Nancy Kramer, Jennifer McNally, Ebony Speakes-Hall, and Aziza Wahby
are individual members of the committee that circulated the initiative petition to propose Issue 1.
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January Term, 2023
Freedom with Protections for Health and Safety” and included the following
proposed language, which constitutes the entire proposed amendment and which,
if adopted by the voters, would be added to the Ohio Constitution:
A. Every individual has a right to make and carry out one’s
own reproductive decisions, including but not limited to decisions
on:
1. contraception;
2. fertility treatment;
3. continuing one’s own pregnancy;
4. miscarriage care; and
5. abortion.
B. The State shall not, directly or indirectly, burden,
penalize, prohibit, interfere with, or discriminate against either:
1. An individual’s voluntary exercise of this right or
2. A person or entity that assists an individual exercising
this right,
unless the State demonstrates that it is using the least restrictive
means to advance the pregnant individual’s health in accordance
with widely accepted and evidence-based standards of care.
However, abortion may be prohibited after fetal viability.
But in no case may such an abortion be prohibited if in the
professional judgment of the pregnant patient’s treating physician it
is necessary to protect the pregnant patient’s life or health.
C. As used in this Section:
1. “Fetal viability” means “the point in a pregnancy when,
in the professional judgment of the pregnant patient’s treating
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physician, the fetus has a significant likelihood of survival outside
the uterus with reasonable measures. This is determined on a case-
by-case basis.”
2. “State” includes any governmental entity and any
political subdivision.
D. This Section is self-executing.
The foregoing proposed amendment language is 197 words.4
{¶ 61} On August 24, 2023, the Ohio Ballot Board met for the purpose of
carrying out its duties under Article XVI, Section 1 of the Ohio Constitution, which
specifies that “[t]he ballot language for such proposed amendments shall be
prescribed by a majority of the Ohio ballot board.” The board, in a three-to-two
vote, retitled the proposed amendment “A Self-Executing Amendment Relating to
Abortion and Other Reproductive Decisions”5 and adopted the following ballot
language to explain what the proposed amendment would do:
• Establish in the Constitution of the State of Ohio an
individual right to one’s own reproductive medical treatment,
including but not limited to abortion;
• Create legal protections for any person or entity that assists
a person with receiving reproductive medical treatment, including
but not limited to abortion;
4. This word count does not include the subsection numbering or lettering, and it treats hyphenated
words as separate words.
5. For purposes of comparison, the two titles may be easily compared here:
• Petitioners’ proposed title: “The Right to Reproductive Freedom with Protections for
Health and Safety”;
• Ohio Ballot Board’s title: “A Self-Executing Amendment Related to Abortion and Other
Reproductive Decisions.”
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January Term, 2023
• Prohibit the citizens of the State of Ohio from directly or
indirectly burdening, penalizing, or prohibiting abortion before an
unborn child is determined to be viable, unless the State
demonstrates that it is using the least restrictive means;
• Grant a pregnant woman’s treating physician the authority
to determine, on a case-by-case basis, whether an unborn child is
viable;
• Only allow the citizens of the State of Ohio to prohibit an
abortion after an unborn child is determined by a pregnant woman’s
treating physician to be viable and only if the physician does not
consider the abortion necessary to protect the pregnant woman’s life
or health; and
• Always allow an unborn child to be aborted at any stage of
pregnancy, regardless of viability if, in the treating physician’s
determination, the abortion is necessary to protect the pregnant
woman’s life or health.
If passed, the amendment will become effective 30 days after
the election.
The foregoing ballot language is 201 words.6
{¶ 62} The committee had asked in a letter for the board to adopt the full
text of the proposed amendment as it had appeared on the petitions, which over
700,000 Ohioans signed. Two members of the board moved to take that action, but
the motion was defeated three to two. Two other members of the board explained
6. Again, this word count does not include the subsection bulleting, and it treats hyphenated words
as separate words.
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why they would not endorse placing the full text of the proposed amendment on the
ballot. Respondent Senator Theresa Gavarone made the following statement:
The language of this amendment is written very broadly.
And that’s no mistake on the part of the drafters. This summary
accurately reflects that really broad language of the amendment, and
that’s what we’re tasked with here today.
No one should be fooled by the clever writing of this
proposed amendment. It’s designed to be broad, so broad that
should it pass, it is unequivocally true that access to painful, late-
term abortions will be written into Ohio’s Constitution.
This amendment is a bridge too far, even for pro-choice
women. Should this be inserted into our founding document, Ohio
citizens will allow an abortionist, a person who profits from
performing an abortion, to be the sole determiner if the “health of
the mother” is at risk.
Health of the mother has been defined by the U.S. Supreme
Court in Doe v. Bolton [410 U.S. 179, 93 S.Ct. 739, 35 L.Ed.2d 201(1973)] to include all factors, physical, emotional, psychological,
familial, and the woman’s age relevant to the wellbeing of the
mother.
If the abortionist says the health of the mother is at risk, even
if there is scant evidence to support that medical determination, then
fully healthy, viable babies at seven, eight, and even nine months
can and absolutely will be aborted.
And all of that is before we get to the elimination of the basic
health and safety standards that the general assembly has
implemented over many decades, such as requiring that abortions be
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January Term, 2023
performed in person by a licensed doctor who has the ability to
transfer a woman to a hospital if something goes wrong with the
abortion and also the assault on parental rights that this proposed
amendment includes.
At this point, board member and respondent Senator Paula Hicks-Hudson requested
a point of order, and the chair of the board, respondent Secretary of State Frank
LaRose, allowed Senator Gavarone to continue:
The truth about this dangerous proposed amendment is
hidden by overly broad language. As a woman and a mother I
consider it an abomination that we’re even talking about amending
our constitution to allow for painful, late-term abortions. An
abomination.
This is a dangerous amendment that I’m going to fight
tirelessly to defeat. But that’s not why we’re here today.
We’re here to create ballot language that accurately
describes the proposed amendment as written.
I wish the language would’ve been more specific to the
voters as to what this proposed amendment actually means, and the
disastrous consequences on women and families, as I’ve been urging
up through today.
But I’m thankful to have played a part in setting the record
straight. And I’m proud to help deliver the truth to Ohioans about
this dangerous proposal.
{¶ 63} Board chair Secretary LaRose also commented as to why the full text
of the amendment should not be placed on the ballot:
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SUPREME COURT OF OHIO
And of course the written text of a 250-plus word
Constitutional Amendment creates what I consider a number of very
substantial changes to [the] Ohio Constitution.
We tried to summarize that the best way we can and make it
a clear statement here in the ballot language of what this amendment
would actually do.
And then, of course, for any voter who wishes to read the
ballot language in its entirety, it’s presented right there at every
polling location in the state, as well.
Relators filed this mandamus action seeking to invalidate the language created and
adopted by the board. They claim that the ballot language is defective because it
misleads the voters and amounts to improper argument against the proposed
amendment.
{¶ 64} Relators ask that we invalidate the board’s language and issue a writ
of mandamus ordering Secretary LaRose to reconvene the board and directing the
board to either adopt the full text of the proposed amendment or prescribe lawful
ballot language correcting the specified defects.
II. Analysis
A. Review of ballot language
{¶ 65} When a party challenges ballot language prescribed by the board,
this court may not invalidate the language unless we find that it “is such as to
mislead, deceive, or defraud the voters.” Ohio Constitution, Article XVI, Section
1. When applying this constitutional directive, we look to whether the board
engaged in fraud or corruption, abused its discretion, or clearly disregarded
applicable law in prescribing the ballot language. One Person One Vote, __ Ohio
St.3d __, 2023-Ohio-1928, __ N.E.3d __, at ¶ 7; see State ex rel. Ohioans for Secure
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January Term, 2023
& Fair Elections v. LaRose, 159 Ohio St.3d 568, 2020-Ohio-1459, 152 N.E.3d 267,
¶ 14. The relator must establish that it is entitled to a writ through clear and
convincing evidence. State ex rel. Doner v. Zody, 130 Ohio St.3d 446, 2011-Ohio-
6117, 958 N.E.2d 1235, ¶ 57.
{¶ 66} Recently, in upholding another decision of the board involving this
same initiative, we explained that “[a]n abuse of discretion connotes an
unreasonable, arbitrary, or unconscionable attitude.” DeBlase, __ Ohio St.3d __,
2023-Ohio-1823, __ N.E.3d __, at ¶ 27. With respect to following the applicable
law, Ohio Constitution, Article XVI, Section 1 (as referred to in Article II, Section
1g) requires the board to “properly identify the substance of the proposal to be voted
upon.” We have explained that the ballot language “ ‘must fairly and accurately
present the question or issue to be decided in order to assure a free, intelligent and
informed vote by the average citizen affected.’ ” State ex rel. Bailey v. Celebrezze,
67 Ohio St.2d 516, 519, 426 N.E.2d 493 (1981), quoting Markus v. Bd. of Elections,
22 Ohio St.2d 197, 259 N.E.2d 501, paragraph four of the syllabus.
{¶ 67} Finally, our analysis is premised on the fundamental principle that
voters have the right to know what they are being asked to vote on. See Jurcisin v.
Cuyahoga Cty. Bd. of Elections, 35 Ohio St.3d 137, 141, 519 N.E.2d 347 (1988),
citing Bailey at 519. Therefore, language that is in the nature of a persuasive
argument in favor of or against a proposed amendment is prohibited. Id., citing
Beck v. Cincinnati, 162 Ohio St. 473, 475, 124 N.E.2d 120 (1955).
{¶ 68} Under these principles of review, the record here shows clearly and
convincingly that the ballot board disregarded applicable law and acted
unreasonably and arbitrarily when it prescribed ballot language that neither
condenses the proposed amendment nor presents the voters with a fair and accurate
description of the issue they are being asked to vote on. The clear disdain of the
majority of the board—which is apparent in the record—for the substance of the
amendment evidences an unconscionable attitude resulting in an abuse of discretion
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SUPREME COURT OF OHIO
in prescribing ballot language that is a complete rewrite of the language of the
amendment, making the ballot language both misleading and longer than the text
of the amendment itself. The board’s language is dishonest. It is born of board
action motivated by privately held and arbitrary views, not constitutional duty. It
should be invalidated in its entirety.
B. The board’s rejection of the full text was unreasonable and arbitrary
{¶ 69} The clearest and most prudent method of ensuring that voters know
what they are being asked to vote on is to place the full text of the proposed
amendment on the ballot. Time and again, we have recognized that “[i]n the larger
community, in many instances, the only real knowledge * * * voter[s] obtain[] on
the issue for which [they are] voting comes when [they] enter[] the polling place
and read[] the description of the proposed issue set forth on the ballot.” Schnoerr
v. Miller, 2 Ohio St.2d 121, 125, 206 N.E.2d 902 (1965). Using the full text of the
proposed amendment would ensure constitutional compliance, because nothing
could more “ ‘fairly and accurately present the question or issue’ ” than the full text
of the proposed amendment. See Bailey, 67 Ohio St.2d at 519, 426 N.E.2d 493,
quoting Markus, 22 Ohio St.2d 197, 259 N.E.2d 501, at paragraph four of the
syllabus.
{¶ 70} As justification for not putting the full text of the proposed
amendment on the ballot, the chair of the board suggested that voters may “read the
ballot language in its entirety” by seeking it out at a polling location. As noted, that
option is inadequate and insufficient, because R.C. 3505.06(E) requires simply this:
If other than a full text is used, the full text of the proposed question,
issue, or amendment together with the percentage of affirmative
votes necessary for passage as required by law shall be posted in
each polling place in some spot that is easily accessible to the voters.
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January Term, 2023
That means that in a polling place, which may contain more than one precinct of up
to 1,400 voters per precinct,7 there is but one copy of the proposed amendment.
This should not be the preferred method for voters to have access to the full text of
a proposed amendment when the full text can easily be placed on the ballot.
{¶ 71} But here, the board did not identify any reason why the full text could
not be placed on the ballot. Rather, Secretary LaRose and Senator Gavarone
focused on why, in their view, it should not be placed on the ballot. Although
Article XVI, Section 1 states that the ballot “need not contain the full text nor a
condensed text,” it is difficult to understand why a substitute text, that is neither
full nor condensed, would ever be constitutional. The parties do not offer this court
any case in which we have been called on to examine circumstances such as these
before now.
{¶ 72} Thus, it behooves us to examine State ex rel. Voters First v. Ohio
Ballot Bd., 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, a case in which
we invalidated the board’s decision to prescribe a condensed text of a proposed
amendment as prepared by the secretary of state’s staff because the condensed text
failed to properly identify the substance of the amendment. The secretary in that
case expressed that the full text of the amendment would have been preferred but
would have “doubled the cost” of sending mail-in ballots for voters and the state.
Id. at ¶ 11. We acknowledged that the alternative was a condensed text, explaining
that if, instead of using the full text, the board approves condensed text, any
omissions may not “affect the fairness or accuracy of the text.” Id. at ¶ 30. We
thus recognized that the actual text is the most accurate ballot language and pointed
out that any other version, condensed or not, had to properly identify the substance
of the proposed amendment.
7. See R.C. 3501.18(A); Ohio Secretary of State, “Election Official Manual” 2-45 (Feb. 3, 2021),
available at https://www.ohiosos.gov/globalassets/elections/directives/2021/eom/eom_fullversion
_2021-02.pdf (accessed Sept. 18, 2023) [https://perma.cc/XJ24-T3P5].
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{¶ 73} If the most fair and accurate presentation of the issue is the full text
of the proposed amendment, why did the board here need to create new language
at all? The board’s language does not condense the language of the proposed
amendment. And there is no indication that the board’s chair was concerned about
the cost of postage or anything of a practical nature. To protect the inherent political
power of the people, we need to examine why the board chose to prescribe not a
full text, and not a condensed text, but a different text altogether.
{¶ 74} First, Secretary LaRose stated that the amendment (that had been on
every part-petition circulated to obtain in excess of 700,000 signatures) created
what he considered to be very substantial changes to the Ohio Constitution. He
also explained that he had tried to “summarize” the amendment and explain what
it “would actually do.” But this reasoning is disingenuous, because what the
amendment “would actually do” depends more on the actual text than the chair’s
explanation of it. Simply put, the chair of the board may express his opinion about
the amendment when he casts his vote on election day, just like every other Ohioan.
But he may not vote to reject placing the full text of the amendment on the ballot
in favor of his own language explaining what he believes the amendment “would
actually do.” Such a decision is arbitrary, unreasonable, and deceitful. His
explanation is a pretext for placing his desire to communicate his views on the
amendment above his constitutional duty to “properly identify the substance of the
proposal to be voted upon” pursuant to Article XVI, Section 1.
{¶ 75} Another unabashedly opinionated member of the board, Senator
Gavarone, went beyond disingenuous and straight into outrageous when she
expressed her clear disdain for the substance of the proposed amendment, calling it
“dangerous” and “an abomination.” The idea that she would “fight tirelessly to
defeat” the amendment equates her vote to deny the full text of the proposed
amendment with a vote to deny the amendment entirely. Her constitutional duty is
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to prescribe accurate ballot language—not to argue against the adoption of the
proposed amendment. See Jurcisin, 35 Ohio St.3d at 141, 519 N.E.2d 347.
{¶ 76} Senator Gavarone either disregarded or misunderstood her duty,
stating that the board was tasked to “create ballot language that accurately describes
the proposed amendment as written.” (Emphasis added.) The board is not and
never has been tasked with creating or describing anything. The board’s duty is
simply to prescribe the language for the ballot and to “properly identify the
substance of the proposal to be voted upon.” Ohio Constitution, Article XVI,
Section 1. It has no duty to create anything.
{¶ 77} Even if we view Secretary LaRose’s and Senator Gavarone’s
justifications for not adopting the full text in the most benign sense—based on their
perception that the amendment is too broadly written—this rationale is arbitrary
and unreasonable. The board has no authority to determine how a proposed
amendment should have been written. Even if it can be said that the drafters wrote
the amendment to apply broadly, it is the voters and not the board who decide
whether that is what the Constitution should say.
{¶ 78} When the full text of the proposed amendment is used as the ballot
language, there can be no doubt that it “properly identif[ies] the substance of the
proposal to be voted upon,” Ohio Constitution, Article XVI, Section 1. Because
“[t]he powers of initiative and referendum should be liberally construed to
effectuate the rights reserved,” Hodges, 64 Ohio St.3d at 5, 591 N.E.2d 1186, we
should find that the board offers no plausible, nonargumentative explanation for
failing to place the full text of the proposed amendment on the ballot, showing its
decision to be arbitrary, unreasonable, and unconscionable.
C. The board’s proposed ballot language is otherwise defective
{¶ 79} In examining the critical defects raised by relators, I recognize that
the board is not required to prescribe ballot language that contains the same “nouns
and verbs” that appear in the proposed amendment, State ex rel. Cincinnati for
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Pension Reform v. Hamilton Cty. Bd. of Elections, 137 Ohio St.3d 45, 2013-Ohio-
4489, 997 N.E.2d 509, ¶ 52. However, until now, we have applied this principle in
the context of reviewing a board’s condensing of the proposed amendment’s
language for the ballot, such as in Cincinnati for Pension Reform, in which the
board had condensed a three-page amendment to six paragraphs.
{¶ 80} When this court examines condensed text, it can evaluate the
omissions as compared to the full text. But this new practice of explaining an
amendment asks us to compare different versions of what is represented to be the
same thing. We should recognize the inappropriateness in this case of endorsing
ballot language that presents a version of the proposed amendment that is not
representative of the amendment’s actual text, especially in the presence of the
abject hostility toward the full text of the proposed amendment that blankets the
evidentiary record.
{¶ 81} For the following reasons, I would find that the board’s decision was
contrary to law because the ballot language it adopted fails to properly identify the
substance of the proposal to be voted on and is misleading, argumentative, and
deceitful.
1. The right created by the amendment
{¶ 82} The proposed amendment establishes the right of every Ohioan to
“make and carry out [their] own reproductive decisions.” It specifies that the right
includes, but is not limited to, “contraception, fertility treatment, continuing one’s
own pregnancy, miscarriage care, and abortion.” Conversely, the board’s language
explains the proposal as establishing a right “to one’s own reproductive medical
treatment” and omits all the categories specifically included except for abortion.
The board’s removal of the enumerated categories could change the voters’
understanding about the scope of the rights being conferred. By the chair’s own
standards, these omissions do nothing to convey a “clear statement of what this
amendment would actually do.”
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{¶ 83} Consider the voter who is concerned about guaranteeing access to
contraception and is not sure about his or her feelings about abortion, or the voter
who is concerned about in vitro fertilization and how the use of embryos could be
criminalized. The ballot language mentions nothing of these aspects of the
proposed amendment. And what about the concerns of physicians who are ethically
obligated to provide medical treatment to patients having a miscarriage and at risk
of bleeding to death, but who may be prosecuted for providing that medical
treatment when the fetus is still viable? There is nothing in the ballot language
about miscarriage. Why are these issues left out of the ballot language?
{¶ 84} Because the board’s language omits important terms while failing to
actually condense or summarize the language at all, the ballot language is
misleading and deprives voters of language that properly reflects the substance of
the proposed amendment. The board’s argumentative justification for crafting this
language—language that is different from the proposed amendment’s full text—
supplies clear and convincing evidence of careful intention that is unreasonable or
arbitrary or arises from an unconscionable attitude. See DeBlase, ___ Ohio St.3d
___, 2023-Ohio-1823, ___ N.E.3d ___, at ¶ 27.
2. “The State” vs. “the citizens of the State of Ohio”
{¶ 85} Secretary LaRose and Senator Gavarone claimed that the full text of
the amendment was broad and that the board’s language was necessary to clarify
the amendment for the voters. But the board’s substitution of “the citizens of the
State of Ohio” for “the State” is confusing, inaccurate, and unnecessary. The full
text of the amendment prohibits “the State” from burdening or interfering with the
rights created therein. The full text also provides a definition of the “State,” so
there can be no question of what entity is being restricted.
{¶ 86} The board’s language is confusing and inaccurate and insinuates that
citizens as individuals, not the government, are prohibited from interfering with the
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rights being created. This language is confusing, if not outright misleading—
especially when the actual text is available, concise, and clear.
3. “Fetus” vs. “unborn child”
{¶ 87} The term “unborn child” is unnecessary and argumentative against
the amendment. Given the statements made during the board’s hearing and in the
absence of any reasonable or rational explanation, it is unsurprising that the board
changed the terminology to fit the majority of the board’s stance against the
amendment, rather than either presenting as ballot language the full text of the
proposed amendment or simply condensing it.
4. The board’s title of the amendment is misleading
{¶ 88} Relators titled the amendment “The Right to Reproductive Freedom
with Protections for Health and Safety.” The board retitled the amendment “A Self-
Executing Amendment Relating to Abortion and Other Reproductive Decisions.”
The board’s language again focuses on only one category of the rights protected,
that being the most contentious: abortion. Further, the board’s title adds the term
“self-executing,” which appears at the end of the proposed amendment’s text;
above the title, it does nothing to explain the substance of the amendment and would
be confusing to the average voter. Given the backdrop of hostility the board has
toward the substance of the amendment, these changes are misleading.
III. Conclusion
{¶ 89} The Ohio Ballot Board’s decision to adopt ballot language that is
different from the language in the proposed amendment, that is not condensed, that
is wordier than the actual text of the proposed amendment, and that does not
properly represent the substance of the proposal was an abuse of discretion and
contrary to law. The board should be ordered to reconvene and adopt constitutional
ballot language, which should be the full text of the amendment, especially under
the facts presented in this case. Because the majority does not agree, except to
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change “the citizens of the State of Ohio” to “the State,” I respectfully concur in
part and dissent in part.
_________________
DETERS, J., concurring in part and dissenting in part.
{¶ 90} I agree with much of the lead opinion’s analysis. Where I part ways,
however, is with the opinion’s characterization of respondent Ohio Ballot Board’s
use of the term “citizens of the State.” The majority concludes that the term is
misleading. It is not. Nothing in the ballot language would lead the average voter
to understand that the proposed amendment would curb his or her individual right
to object to abortion. So while I concur with the majority’s judgment denying the
writ in most respects, I dissent from the majority’s judgment granting a limited writ
to relators, Ohioans United for Reproductive Rights and several individual
members of the committee that circulated the petition to propose the constitutional
amendment at issue.
{¶ 91} The Ohio Constitution constrains this court’s review of ballot
language: “ballot language shall not be held invalid unless it is such as to mislead,
deceive, or defraud the voters.” Article XVI, Section 1, Ohio Constitution. “When
assessing ballot language, we typically examine whether the language tells voters
what they are being asked to vote on and whether the language impermissibly
amounts to persuasive argument for or against the issue.” State ex rel. One Person
One Vote v. Ohio Ballot Bd., __ Ohio St.3d __, 2023-Ohio-1928, __ N.E.3d __,
¶ 8.
{¶ 92} The lead opinion correctly concludes that most of relators’ claims
that the ballot language is misleading are without merit. And it determines that the
language is not improperly argumentative against the amendment. Where the
opinion goes wrong is in concluding that the use of the term “citizens of the State”
is misleading because the term “suggest[s] that the amendment would limit the
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rights of individual citizens to oppose abortion.” Lead opinion, ¶ 29. Read in
context, the term does nothing of the sort.
{¶ 93} The term that the majority finds misleading appears in two bullet
points in the ballot board’s language:
• Prohibit the citizens of the State of Ohio from directly or
indirectly burdening, penalizing, or prohibiting abortion before an
unborn child is determined to be viable, unless the State
demonstrates that it is using the least restrictive means.
***
• Only allow the citizens of the State of Ohio to prohibit an
abortion after an unborn child is determined by a pregnant woman’s
treating physician to be viable and only if the physician does not
consider the abortion necessary to protect the pregnant woman’s life
or health[.]
{¶ 94} It is notable that both bullet points refer to “citizens” rather than “a
citizen.” The word choice can be contrasted with other phrases that describe the
effect of the proposed amendment on individuals: “a pregnant woman’s treating
physician” is granted authority; a determination is to be made whether “an unborn
child” is viable; “the pregnant woman’s life or health” is protected. When the
phrase “citizens of the State” is contrasted with those phrases, it seems unlikely that
a voter would conclude that the bullet points using the term “citizens of the State”
describe the amendment’s effect on his or her individual rights.
{¶ 95} Moreover, the actions that the ballot language explains would be
prohibited or permitted are not actions that can be taken by an individual. In the
first bullet point quoted above, the “citizens of the State” are prohibited from
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January Term, 2023
“burdening, penalizing, or prohibiting abortion.” A voter would not understand
that language to mean that he or she currently had a right to burden, penalize, or
prohibit abortion and that the right would be taken away by the amendment. And
if there were any confusion on this point, the latter half of the bullet point—“unless
the State demonstrates that it is using the least restrictive means”—makes clear that
the burdening, penalizing, or prohibiting referred to involve state action.
{¶ 96} Likewise, the second bullet point quoted above speaks to allowing
“citizens of the State” to prohibit an abortion in limited circumstances. A voter
would not think this means that so long as the amendment doesn’t pass, he or she
possesses an individual right to prohibit an abortion. The majority’s conclusion
that the language “suggests,” lead opinion at ¶ 26, any limit on the right of an
individual voter to oppose abortion is simply not supported by the words chosen by
the ballot board.
Conclusion
{¶ 97} This court’s role in reviewing ballot language is constrained by the
Ohio Constitution. The Ohio Ballot Board’s language does not mislead, deceive,
or defraud voters. Because the majority concludes otherwise, I respectfully concur
in part and dissent in part.
KENNEDY, C.J., and DEWINE, J., concur in the foregoing opinion.
_________________
McTigue & Colombo, L.L.C., and Donald J. McTigue; and Elias Law
Group, L.L.P., and Ben Stafford, Emma Olson Sharkey, and Samuel T. Ward-
Packard, for relators.
Dave Yost, Attorney General, and Julie M. Pfeiffer, Ann Yackshaw,
Michael A. Walton, and Stephen Tabatowski, Assistant Attorneys General, for
respondents.
_________________
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