IN THE SUPREME COURT OF OHIO

State of Ohio ex rel. One Person One Vote

545 East Town Street
Columbus, OH 43215

State of Ohio ex rel. Jeniece Brock

1463 Apple Court
Akron, OH 44306 Case No. ______________________

State of Ohio ex rel. Brent Edwards Original Action in Mandamus Pursuant to

4504 Whetsel Avenue Article XVI, Section 1 of the Ohio
Cincinnati, OH 45227 Constitution

and Expedited Election Case

Pursuant to Supreme Court Rule of
State of Ohio ex rel. Christopher Tavenor Practice 12.08
1137 King Avenue
Columbus, OH 43212
Peremptory and Alternative Writs
Requested
Relators,

v.

Frank LaRose, in his official capacity as

Ohio Secretary of State
22 North Fourth St., 16th Floor
Columbus, OH 43215

Respondent.

VERIFIED COMPLAINT UNDER ARTICLE XVI, SECTION 1 OF THE OHIO

CONSTITUTION AND FOR WRIT OF MANDAMUS
David R. Fox (Pro Hac Vice Pending) Dave Yost (0056290)
Emma Olson Sharkey (Pro Hac Vice Pending) OHIO ATTORNEY GENERAL
Jyoti Jasrasaria (Pro Hac Vice Pending) 30 E. Broad Street
Samuel T. Ward-Packard (Pro Hac Vice Columbus, OH 43215
Pending) [email protected]
ELIAS LAW GROUP LLP T: (614) 466-2872
250 Massachusetts Ave. NW, Ste. 400 F: (614) 728-7592
Washington, DC 20002
[email protected] Counsel for Respondent
[email protected]
[email protected]
[email protected]
T: (202) 968-4490
F: (202) 968-4498

Donald J. McTigue (0022849)

Counsel of Record
J. Corey Colombo (0072398)
Katie I. Street (0102134)
MCTIGUE & COLOMBO LLC
545 East Town Street
Columbus, OH 43215
[email protected]
[email protected]
[email protected]
T: (614) 263-7000
F: (614) 368-6961

Counsel for Relators

This original action under Article XVI, Section 1 of the Ohio Constitution and in

mandamus is brought in the name of the State of Ohio on the relation of One Person One Vote,

Jeniece Brock, Brent Edwards, and Christopher Tavenor (collectively, “Relators”). Amended

Substitute Senate Joint Resolution Number 2’s setting of an August 8, 2023, special election is

contrary to law. Relators request that the Court issue a writ of mandamus directing Respondent

Ohio Secretary of State Frank LaRose to (i) remove the constitutional amendment proposed by

Amended Substitute Senate Joint Resolution Number 2 from the August 8, 2023, special election

ballot and (ii) instruct county election officials not to proceed with the special election.

INTRODUCTION

1. “All political power is inherent in the people.” Ohio Constitution, Article I, Section

2. And in their Constitution, the people of Ohio have “reserve[d] to themselves the power …

independent of the general assembly to propose amendments to the constitution and to adopt or

reject the same at the polls.” Id., Article II, Section 1.

2. For more than a century, the people have exercised that reserved power by simple

majority vote.

3. The joint resolution underlying this action, Amended Substitute Senate Joint

Resolution Number 2 (“S.J.R. 2”), seeks to hamstring Ohio’s democracy by amending the

Constitution to increase the popular vote threshold to adopt constitutional amendments from a

simple majority to a sixty percent supermajority (“the Amendment”). [Exhibit 1.]

4. Such changes are unpopular with voters. Similar measures failed in South Dakota

and Arkansas when voters rejected them during primary and general elections in 2022.

5. In an apparent effort to avoid a similar fate for the Amendment, S.J.R. 2 purports

to submit the Amendment to the voters at an August 8, 2023, special election.

6. Turnout in August special elections is typically anemic. It was particularly low last
summer, when just 8.01% of registered electors cast ballots in the 2022 statewide August

primary—the lowest turnout for a primary election in the Secretary of State’s modern records.

[Exhibit 2.]

7. In response to that abysmal turnout and the extraordinary burdens August elections

impose on Ohio’s election workers, the General Assembly voted just five months ago to abolish

statewide August elections entirely. The Revised Code now permits only local August elections,

and only in localities that are under a fiscal emergency.

8. The General Assembly’s attempt to put the Amendment before the people in a low-

turnout August special election is unlawful. The Revised Code prescribes an unambiguous

schedule for elections. It expressly limits special elections on constitutional amendments to

November, March (coinciding with presidential primaries), or May. It does not permit statewide

August elections for any purpose.

9. The Amendment’s proponents in the General Assembly recognized this fatal flaw

in their scheme. They made several attempts to amend the Revised Code to reauthorize August

special elections on constitutional amendments. But all those efforts failed, leaving no legal basis

for submission of the Amendment to the voters in an August election.

10. This Court should not countenance this cynical attempt to undermine a century-old

pillar of Ohio’s democracy by means of an illegal election. It should grant the writ.

NATURE OF THE ACTION AND JURISDICTION

11. This is an original action commenced under Article XVI, Section 1 and Article IV,

Section 2(B)(1)(b) of the Ohio Constitution and Chapter 2731 of the Ohio Revised Code.

12. S.J.R. 2’s setting of an August special election is contrary to law. Accordingly,

Relators seek a writ of mandamus directing Respondent Ohio Secretary of State Frank LaRose to

(i) remove the Amendment proposed in S.J.R. 2 from the August 8, 2023, ballot, and (ii) instruct

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the county election officials under his supervision not to proceed with the special election on that

Amendment.

13. This Court has jurisdiction over this action under Article IV, Section 2(B)(1)(b),

which gives the Court original jurisdiction in mandamus actions, and under Article XVI, Section

1, which gives the Court original and exclusive jurisdiction in all cases “challenging the adoption

or submission of a proposed constitutional amendment to the electors.”

14. Relators affirmatively allege that they have acted with the utmost diligence, that

there has been no unreasonable delay or lapse of time in asserting their rights, and that there is no

prejudice to Respondent. Specifically, the General Assembly enacted S.J.R. 2 on the evening of

May 10, 2023, the Secretary announced that he had instructed the county election boards to begin

immediate preparations for an August 8 election that night, and this action is being filed on May

12.

15. Because this action is being filed fewer than 90 days before August 8, 2023, it is an

expedited election case subject to the schedule set out in Supreme Court Rule of Practice 12.08.

PARTIES

16. Relator One Person One Vote is an Ohio corporation operating under Section

501(c)(4) of the Internal Revenue Code. It comprises Ohio electors and taxpayers who oppose the

Amendment.

17. One Person One Vote will be injured if the Amendment is on the ballot in an August

8 special election. Specifically, One Person One Vote will have to expend additional resources to

motivate voters to turn out in opposition to the Amendment in August, when most electors will

have no other motivation to vote.

18. Relators Jeniece Brock, Brent Edwards, and Christopher Tavenor are residents and

qualified electors of the State of Ohio who oppose the Amendment.

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19. Relators Jeniece Brock, Brent Edwards, and Christopher Tavenor will be injured if

the Amendment is submitted to the people on August 8, both as individual Ohio electors and

taxpayers and as organizers who support turnout efforts for citizen-led initiatives.

20. Respondent Frank LaRose is the Ohio Secretary of State and the State’s chief

election officer.

21. Under Sections 3501.05(G) and (H) of the Ohio Revised Code, Secretary LaRose

is charged with determining and prescribing “the forms of ballots … required by law” for use in

elections and with preparing “the ballot title or statement to be placed on the ballot for any

proposed … amendment to the constitution to be submitted to the voters of the state.”

22. In addition, under Section 3501.05(M), Secretary LaRose is charged with

compelling “the observance by election officers in the several counties of the requirements of the

election laws.” Pursuant to that authority, Secretary LaRose has already directed election officials

to “begin preparations immediately” for an August 8 special election. [Exhibit 3.]

23. Secretary LaRose is not vested with authority to determine the constitutionality of

any law. Secretary LaRose’s election administration duties with respect to S.J.R. 2 are purely

ministerial.

LEGAL BACKGROUND

24. The Ohio Constitution and the Revised Code operate together to authorize elections

to approve or reject constitutional amendments proposed by the General Assembly only on the

date of the annual general election in November or on the date of the annual primary election in

either March or May.

25. Article XVI of the Ohio Constitution authorizes the General Assembly to propose

amendments to the Constitution by vote of “three-fifths of the members elected to each house.”

26. Article XVI further authorizes the General Assembly to submit such amendments

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to the people “at either a special or a general election as the General Assembly may prescribe.”

27. The General Assembly has prescribed a comprehensive statutory scheme governing

when elections may be held, including elections on constitutional amendments it proposes.

28. Revised Code Section 3501.02 provides that proposed constitutional amendments

submitted by the general assembly to the voters of the state may be submitted at one of two

elections: (i) at “the general election” at least 90 days after filing, or (ii) “at a special election

occurring on the day in any year specified by division (E) of section 3501.01 of the Revised Code

for the holding of a primary election, when a special election on that date is designated by the

general assembly in the resolution adopting the proposed constitutional amendment.”

29. Revised Code Section 3501.01(A) defines the general election to mean “the

election held on the first Tuesday after the first Monday in each November.”

30. Revised Code Section 3501.01(E) provides for primary elections that “shall be held

on the first Tuesday after the first Monday in May of each year” except in presidential years, when

they “shall be held on the third Tuesday after the first Monday in March.”

31. Thus, the two options that the Revised Code provides for submission of a

constitutional amendment to the voters are (i) the general election in November or (ii) a primary

election in May or (in presidential years) March.

32. The Revised Code prohibits holding a statewide special election in August. Section

3501.01(D) provides that “[a] special election may be held only on the first Tuesday after the first

Monday in May or November, on the first Tuesday after the first Monday in August in accordance

with section 3501.022 of the Revised Code,” or in accordance with “a particular municipal or

county charter,” except in presidential years when it may be held in March instead of May.

(Emphasis added.)

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33. Revised Code Section 3501.022, in turn, provides only that “a political subdivision

or taxing authority may hold a special election on the first Tuesday after the first Monday in

August,” and then only if the political subdivision is “under a fiscal emergency” or the taxing

authority “is a school district” and is “under a fiscal emergency.” Section 3501.022 does not

authorize a statewide August special election under any circumstances.

34. The restrictions on August elections in Sections 3501.01(D) and 3501.022 were

enacted less than five months ago, in December 2022 in Substitute House Bill 458. [Exhibit 4.]

Substitute House Bill 458 took effect on April 7, 2023. [Exhibit 5.]

35. Secretary LaRose supported Substitute House Bill 458 on the grounds that August

special elections “aren’t good for taxpayers, election officials, voters or the civic health of our

state.” [Exhibit 6.]

36. Together, Sections 3501.01, 3501.022, and 3501.02 establish a complete and

exclusive set of criteria for calling special elections to approve or reject constitutional amendments

proposed by the General Assembly. Such elections may be called on three dates: (i) the date of the

November general election; (ii) the date of the May primary in a non-presidential year; or (iii) the

date of the March primary in a presidential year.

37. This Court has long held that the “statute law of the state can neither be repealed

nor amended by a joint resolution of the general assembly.” State ex rel Attorney General v.

Kinney, 56 Ohio St. 721, 724, 47 N.E. 569 (1897). And although the Court previously allowed the

General Assembly to call a special election by joint resolution without statutory authorization, it

did so under a different statutory regime—one that did not conflict with the language of the joint

resolution. State ex rel. Foreman v. Brown, 10 Ohio St.2d 139, 142, 226 N.E.2d 116 (1967).

38. The General Assembly has amended Revised Code Chapter 3501 several times

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since Foreman was decided: first in the year following the Foreman decision, and most recently

just five months ago. In doing so, the General Assembly has made clear that the election calendar

in Section 3501.02 is exclusive and exhaustive.

FACTS

1. The General Assembly unsuccessfully attempted to reinstate a statutory August

special election to facilitate passage of the Amendment.

39. In March 2023, the General Assembly began to consider S.J.R. 2, the joint

resolution proposing the Amendment. In connection with that consideration, both houses of the

General Assembly introduced new bills undermining Substitute House Bill 458’s recently enacted

prohibition on August special elections, in an effort to allow the Amendment to be submitted to

the voters at precisely the sort of low-turnout August special election that the General Assembly

had just outlawed.

40. If passed, Senate Bill 92 or House Bill 144 would have revised Section 3501.022

to permit August special elections for the purpose of submitting statewide ballot issues to the

people. [Exhibits 7, 8.] One version of Senate Bill 92 also would have called an election on August

8, 2023, specifically for the purpose of submitting the Amendment, and appropriated funds for that

election. [Exhibit 7.]

41. Although Senate Bill 92 passed the Senate, it died in a House committee. And

House Bill 144 never passed out of committee at all.

42. Current and former Ohio officials opposed to Senate Bill 92 and House Bill 144

cited Substitute House Bill 458 and made arguments against an August election similar to those

that Secretary LaRose and others had made mere months earlier.

43. Former Republican Governor and Secretary of State Taft sent a letter to the General

Assembly opposing both Senate Bill 92 and S.J.R. 2, remarking that as a former Secretary of State

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he “was all too aware that August special elections are too costly for the very low voter turnout

that they attract.” [Exhibit 9.] Former Governors Kasich, Strickland, and Celeste also objected to

the set of bills. [Exhibit 10.]

44. Five of Ohio’s seven living former attorneys general—including two Republicans

and three Democrats—warned in a letter to the General Assembly that “changes in fundamental

constitutional arrangements should not be made … without the opportunity for participation of

those most intimately affected by the constitution—the people. Clearly, that has not happened in

this rush to revise our constitution.” [Exhibit 11.]

45. And the Ohio Association of Election Officials, the bipartisan organization that

represents the interests of the hardworking local officials who run Ohio’s elections, took the

extraordinary step of voting to formally oppose the August election. The Association’s

spokesperson decried the burden an August election would impose on taxpayers and warned that

an August special election would make “for a very hectic schedule and a very difficult operation.”

[Exhibit 12.]

2. After failing to set an August 2023 special election by statute, the General Assembly
passed S.J.R. 2 without any statutory basis for its purported August election date.

46. Although the General Assembly failed to pass legislation setting an election date

for S.J.R. 2, both houses adopted S.J.R. 2 itself.

47. The Senate adopted S.J.R. 2 on April 19, 2023. [Exhibit 1.]

48. The House adopted S.J.R. 2 on May 10, 2023. [Exhibit 1.] The Senate immediately

concurred in amendments made by the House, and S.J.R. 2 was filed that evening with Secretary

LaRose. [Exhibit 1.]

49. S.R.J. 2 submits to the electors of the state an amendment to Sections 1b, 1e, and

1g of Article II and Sections 1 and 3 of Article XVI of the Ohio Constitution.

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50. If ratified, the Amendment would make three changes to Ohio’s constitutional

processes governing future amendments.

51. First, the Amendment would increase the threshold for ratification of future

amendments by the people of Ohio from a simple majority to sixty percent.

52. Second, the Amendment would increase the number of counties from which

signatures must be collected upon a constitutional amendment initiative petition from one-half of

the state’s counties to all counties.

53. Third, the Amendment would eliminate amendment initiative petitioners’

opportunity to cure a petition found insufficient by filing additional signatures.

54. S.J.R. 2 provides that upon ratification, the increased threshold shall go into force

immediately.

55. S.J.R. 2 provides that the proposed Amendment shall be submitted to the electors

at a special election on August 8, 2023, and purports to call such an election “pursuant to the

authority provided by Section 1 of Article XVI.” But it does not assert any statutory basis for such

an election or purport to repeal or amend any aspect of Revised Code Sections 3501.01, 3501.022,

or 3501.02.

COUNT I – ARTICLE XVI AND MANDAMUS

56. Relators restate and incorporate by reference all prior paragraphs as though fully

set forth in this paragraph.

57. Submitting the Amendment to the people in an August 8, 2023, special election

would violate the Constitution and the laws of the State of Ohio.

58. The Ohio Constitution, Article XVI, Section 1, authorizes the General Assembly to

propose constitutional amendments, and to prescribe the submission of such amendments to the

people at general or special elections.

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59. The General Assembly has exercised its authority to prescribe the manner in which

constitutional amendments are submitted to the people by enacting a statutory scheme that

provides for a comprehensive and exclusive annual election calendar.

60. Submitting the Amendment on the ballot on August 8, 2023, would violate the

statutory scheme governing Ohio elections in two separate ways.

61. First, because of the statutory amendments enacted by the General Assembly and

signed by the Governor just five months ago, Section 3501.01(D) provides that a special election

may be held on the first Tuesday after the first Monday in August only in accordance with the

newly created Section 3501.022. And Section 3501.022 authorizes such elections only when called

by a political subdivision or taxing authority in a fiscal emergency.

62. The General Assembly’s attempt to call a statewide special election on August 8

violates Sections 3501.01(D) and 3501.022 because the State of Ohio is not a political subdivision

or taxing authority as defined in Section 3501.022 and is not in a fiscal emergency as there defined

either.

63. Second, Section 3501.02 sets the “time for holding” elections and provides that

elections “shall be held” according to the schedule set out in that Section’s individual divisions.

64. Division (E) of Section 3501.02 provides two options for elections to approve or

reject constitutional amendments proposed by the General Assembly.

65. The first option is for the amendment election to be held on the same date as the

November “general election.”

66. The second option is for the amendment election to be held on the same date as the

annual primary election (in either March or May), “when a special election on that date is

designated by the general assembly in the resolution adopting the proposed constitutional

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amendment.”

67. Section 3501.02 thus specifically contemplates whether and when the General

Assembly may designate by joint resolution a date other than the general election date for a

constitutional amendment special election and provides only one option—the date of the annual

primary election.

68. Because August 8, 2023, is neither the date of the 2023 general election nor the

date of the 2023 primary election, submitting the Amendment to the voters on that date violates

Section 3501.02(E)’s mandatory criteria for the General Assembly’s designation of elections.

69. Having enacted these statutes, the General Assembly is bound by them unless and

until they are amended using any of the several mechanisms the Ohio Constitution provides.

70. A joint resolution may not repeal or amend a statute. Kinney, 56 Ohio St. at 724.

When a joint resolution and a statute conflict, this Court’s precedents instruct that the joint

resolution’s unlawful provisions are void. Id.; cf. Foreman, 10 Ohio St.2d at 142 (holding that

General Assembly could call special election without statute where “there [wa]s no conflict

between any statute and the action taken by the General Assembly in [the joint resolution] in

calling a special election”).

71. The General Assembly’s calling of an August 8, 2023, special election and its

submission of the Amendment at that election are void because those actions violate the Revised

Code’s express terms.

72. This Court will grant a writ of mandamus when a relator establishes (i) a clear legal

right to the requested relief, (ii) a clear legal duty on the part of the respondent to provide it, and

(iii) the lack of an adequate remedy in the ordinary course of law.

73. Relators have a clear legal right to the requested relief because submission of the

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Amendment to the people on August 8, 2023, would violate the express requirements of the above

provisions of the Revised Code.

74. Respondent Secretary LaRose has a clear legal duty to provide the requested relief

because he is charged with determining and prescribing “the forms of ballots … required by law”

and with compelling “the observance by election officers in the several counties of the

requirements of the election laws.” R.C. 3501.05(G), (H), (M).

75. Relators lack an adequate remedy at law because this Court has original and

exclusive jurisdiction of the subject matter of the action and has long treated mandamus as the

only available remedy when an elector seeks to strike an unlawfully submitted constitutional

amendment from the ballot.

PRAYER FOR RELIEF

Accordingly, Relators respectfully request that this Court:

A. Issue a peremptory writ of mandamus directing Respondent Secretary LaRose to

remove the Amendment from the August 8, 2023, ballot and further directing the Secretary to

rescind Directive 2023-07 and instruct the county election officials under his authority not to

proceed with the special election on that amendment;

B. In the alternative, if the Court requires further evidence or briefing, issue an

alternative writ of mandamus and order an expedited briefing schedule on the same;

C. Retain jurisdiction of this action to render any and all further orders that the Court

may from time to time deem appropriate; and

D. Grant such other or further relief the Court deems appropriate, including, but not

limited to, an award of Relators’ reasonable costs.

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Respectfully submitted,

/s/ Donald J. McTigue_______

Donald J. McTigue (0022849)
Counsel of Record
J. Corey Colombo (0072398)
Katie I. Street (0102134)
MCTIGUE & COLOMBO LLC
545 East Town Street
Columbus, OH 43215
[email protected]
[email protected]
[email protected]
T: (614) 263-7000
F: (614) 368-6961

David R. Fox (Pro Hac Vice Pending)

Emma Olson Sharkey (Pro Hac Vice
Pending)
Jyoti Jasrasaria (Pro Hac Vice Pending)
Samuel T. Ward-Packard (Pro Hac Vice
Pending)
ELIAS LAW GROUP LLP
250 Massachusetts Ave. NW, Ste. 400
Washington, DC 20002
[email protected]
[email protected]
[email protected]
[email protected]
T: (202) 968-4490
F: (202) 968-4498

Counsel for Relators

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