United States District Court, N.D. Ohio, Eastern Division
MEMORANDUM OF OPINION AND ORDER [RESOLVING ECF
NOS. 5, 22,
Y. Pearson, United States District Judge.
Richard F. Schoen, Brenda Hill, Joshua Hughes, and David
Karmol, in their official capacities as members of the Lucas
County Board of Elections, filed a Motion for Judgment on the
Pleadings. ECF No. 5. Defendants David Betras, Mark Munroe,
Robert Wasko, and Tracey Winbush, in their official
capacities as members of the Mahoning County Board of
Elections, filed a Motion to Dismiss. ECF No. 22. Defendant
Frank LaRose, in his official capacity as the Ohio Secretary
of State, also filed a Motion to Dismiss. ECF No. 38.
Plaintiffs opposed each motion, ECF Nos. 40, 45, 48, and all
defendants replied, ECF Nos. 44, 51, 52. Additionally, the
Lucas County Board of Elections Defendants and Defendant
LaRose filed supplemental briefing in support of their
motions. ECF Nos. 65, 66. Plaintiffs filed a responsive
brief. ECF No. 67. The Court heard oral argument as to the
pending motions on August 26, 2019.
following reasons, the Court grants the Mahoning County Board
of Elections Defendants' motion to dismiss for lack of
standing. ECF No. 22. The Court also grants the motion for
judgment on the pleadings filed by the Lucas County Board of
Elections Defendants and the motion to dismiss filed by
Defendant Frank LaRose. ECF Nos. 5, 38.
Ohio Initiative Process
permits its citizens to pass laws through an initiative
process. This includes the power to enact a county charter,
Ohio Const. art. X, § 3, amend a municipal charter,
id. art. XVIII, § 7, and enact a municipal
ordinance, id. art. II, § 1.
of a county may commence the initiative process by filing a
county charter petition with the board of elections or the
board of county commissioners. O.R.C. § 307.94. Either way,
the board of elections is responsible for reviewing the
petition to “determine whether the petition and the
signatures on the petition meet the requirements of
law[.]” Id.; O.R.C. § 307.95(A).
“The petition shall be invalid if any portion of the
petition is not within the initiative power.” O.R.C.
§§ 3501.11(K)(2), 3501.38(M)(1)(a), 3501.39(A)(3).
Upon making its determination, the board of elections is
required to submit a report to the board of county
commissioners. O.R.C. §§ 307.94, 307.95(A). If the
petition does not meet the requirements of law, the board of
elections' report must provide “the reasons for
invalidity.” O.R.C. §§ 307.94, 307.95(A).
board of elections' findings of the validity or
invalidity of a county charter petition may be challenged
through a written protest, filed with the board of
elections. O.R.C. § 307.95(B). The board of
elections must deliver or mail to the secretary of state each
protest received. Id. at §
307.95(B)-(C). The secretary of state must
“determine . . . the validity or invalidity of the
petition, ” including whether the petition is within
the initiative power. Id. at § 307.95(C).
“The determination by the secretary of state is
Amendments to Municipal Charters
proposed municipal charter amendment may be submitted to the
electorate through the initiative process. The amendment of a
municipal charter is “a matter concerning the structure
of a municipal government.” State ex rel. Maxcy v.
Saferin, 122 N.E.3d 1165, 1168 (Ohio 2018). If the
proposed amendment has the requisite number of signatures,
the legislative authority must pass an ordinance
providing for the submission of the amendment to the
electorate. Ohio Const., art. XVIII, § 8. Once
the ordinance is passed, the board of elections is required
to add the proposed charter amendment to the ballot.
Maxcy, 122 N.E.3d at 1171.
may enact municipal ordinances through the initiative
process. This power is limited to “all questions which
such municipalities may now or hereafter be authorized by law
to control by legislative action[.]” Ohio Const.,
art. II, § 1f.
with county charter petitions, a board of elections must
determine whether a proposed initiative “falls within
the scope of a municipal political subdivision's
authority to act via initiative” and whether “the
petition satisfies the statutory prerequisites to place the
issue on the ballot. O.R.C. § 3501.38(M)(1)(a).
“The petition shall be invalid if any portion of the
petition is not within the initiative power.”
Id. at §§ 3501.11(K)(2), 3501.38(M)(1)(a),
Against Mahoning County Board of Elections
Susan Beiersdorfer and Dario Hunter are Mahoning County
residents and members of the organization Frackfree Mahoning
Valley (“Frackfree”). ECF No. 1 at PageID #:
27-28. In 2017, Frackfree submitted a petition to amend the
Youngstown Municipal Charter to the Mahoning County Board of
Elections. Id. at PageID #: 28. The Board refused to
place the proposed amendments on the election ballot,
concluding that they exceeded Youngstown's legislative
power by creating new causes of action. Id. at
PageID #: 29. In response, members of Frackfree, including
Beiersdorfer and Hunter, filed a writ of mandamus with the
Ohio Supreme Court. Id. at PageID #: 28-29.
Ohio Supreme Court denied the writ, finding that the proposed
municipal charter amendments were beyond the scope of the
city's authority to enact by initiative and therefore
properly excluded from the ballot. State ex rel. Flak v.
Betras, 95 N.E.3d 329, 333 (Ohio 2017).
April 24, 2018, Frackfree again attempted to place the
Youngstown Drinking Water Protection Bill of Rights on the
ballot. ECF No. 1 at PageID #: 30. After the Board refused,
the petitioners again sought a writ of mandamus from the Ohio
Supreme Court. Id. The Ohio Supreme Court granted
the writ, and the charter amendment was placed on the ballot
two weeks before the May 2018 election. Id.; see
State ex rel. Khumprakob v. Mahoning Cty. Bd. of
Elections, 109 N.E.3d 1184, 1186 (Ohio 2018). The
measure, however, did not receive the requisite number of
votes to pass. ECF No. 1 at PageID #: 31.
once more submitted the Youngstown Drinking Water Protection
Bill of Right to the Board, this time for placement on the
November 2018 ballot. Id. The Board certified the
measure for placement on the ballot. Id.
Against Lucas County Board of Elections Defendants
Markie Miller and Bryan Twitchell are Toledo residents and
members of the organization Toledoans for Safe Water
(“TSW”). ECF No. 1 at PageID #: 34-35. On August
6, 2018, TSW submitted part-petitions with approximately 10,
500 signatures in support of placement of the Lake Erie Bill
of Rights (“Bill”). Id. at PageID #: 35.
The Bill is a municipal charter amendment with a
“rights of nature” component providing a legal
basis, including standing, for citizen intervention for the
purpose of protecting the Lake Erie watershed. Id.
Lucas County Board of Elections notified the Clerk of Toledo
City Council that the minimum number of votes necessary to
qualify the Bill for the ballot had been surpassed.
Id. The Clerk of Toledo City Council accordingly
instructed the Board to put the Bill on the November 6, 2018
ballot for a public vote. Id.
August 28, 2018, the Board unanimously voted to reject the
Bill from the ballot. Id. The Board determined that
the Bill contained provisions beyond the scope of the City of
Toledo's power to enact. Id.
sought a writ of mandamus to compel the Board to place the
Bill on the ballot, claiming that the Board was prohibited
from invalidating municipal initiatives from the ballot based
on substantive evaluations of legality. Id. at
PageID #: 36. The Ohio Supreme Court denied the
writ, relying on its decision in Flak, 95 N.E.3d
329, in holding that elections boards are authorized to
“determine whether a ballot measure falls within the
scope of the constitutional power of referendum or
initiative.” ECF No. 1 at PageID #: 36; State ex
rel. Twitchell v. Saferin, 119 N.E.3d 365 (Ohio 2018).
weeks later, the Ohio Supreme Court abrogated Flak,
holding that “boards of elections have no authority to
review the substance of a proposed municipal-charter
amendment[.]” Maxcy, 122 N.E.3d at 1169.