Overriding the governor’s veto on legislation that would eviscerate the state health department’s legal power to respond to pandemics could be close, and supportive activists are eyeing two House representatives they see as “weak links” in the chain.
Reps. Gayle Manning and Dave Greenspan, both Republicans, voted against Senate Bill 1 in May, which would have automatically rescinded every new order from the Ohio Department of Health after two weeks unless a legislative panel voted to preserve it.
They were the only Republicans to vote with Democrats on the issue.
Now, the autonomy of the health department, codified in a few short lines of state law giving it “ultimate authority in matters of quarantine and isolation,” could be in their hands.
Gov. Mike DeWine on Thursday vetoed Senate Bill 311, a pared-down version of SB 1, which would give the state legislature the ability to vote down any public health orders. He called the idea a “disaster” at a briefing last month.
The legislation would also forbid ODH from issuing any order “that has the effect of being a general, mandatory statewide or regional quarantine or isolation order” imposed on people who have not been directly exposed to or diagnosed with an infectious disease.
Legal experts say the bill would likely prohibit ODH and the governor from issuing something like the stay-at-home order from March and April.
“I don’t claim to know exactly what the proponents of Senate Bill 311 thought they were doing, but this is pretty broad language that would seem to make it extremely difficult for the Ohio Department of Health to issue a stay-at-home order or a close-of-business order,” said Jonathan Entin, a law professor at Case Western Reserve University.
In interviews, both Greenspan and Manning said the key difference between the bill they opposed in May and Senate Bill 311 is the timing. There’s a perfectly good chance a scheduling problem, they said, could preclude lawmakers from meeting; they said they didn’t want to vote to allow logistical problems to tank health orders.
Manning said while the widespread opposition of the recent bill from the medical and public health community gives her pause, lawmakers need more of a voice in Ohio’s COVID-19 response.
She declined to comment on, if the bill were passed, whether lawmakers would vote down something like the statewide mask mandate. She also declined to comment whether she’d vote to override DeWine’s veto.
“I have no idea,” she said. “I’ll have to wait and see what happens.”
Greenspan said Wednesday the bill’s only effect, per his understanding, was allowing lawmakers to rescind or amend an order from the governor that imposes a quarantine or isolation demand on someone who isn’t diagnosed with or exposed to a disease.
“My understanding of that bill is it only pertained to statewide and regional isolation orders,” he said. “That was the basis for my vote. If it’s beyond that, I can only say — that’s how my interpretation — what we were told the bill did.”
He said he didn’t believe it would allow lawmakers to rescind other public health orders like mask mandates, and it wouldn’t preclude something like the March lockdowns.
Legal experts said Greenspan’s interpretation is inaccurate.
“With regard to the mask mandate, that’s clearly not correct,” said Micah Berman, a professor of public health law at Ohio State University.
“SB 311 would allow any order under [state public health law] to be rescinded via concurrent resolution. The mask order and virtually all of the other health orders have been issued pursuant to that section.”
Greenspan said in a follow-up interview Friday he’d need to seek further guidance from legal staff regarding the effects of the bill.
Medical and legal experts have questioned other aspects of the bill.
For instance, both Entin and Dr. Bruce Vanderhoff, ODH’s medical director, raised concerns about the provision requiring exposure or a medical diagnosis when it comes to a disease like COVID-19 that can spread without victims showing symptoms.
After DeWine’s veto, the bill returns to the Senate, where it must receive 20 of 33 votes for an override.
The bill passed with 20 votes in September, meaning supporters have no votes to spare. Four Republicans voted with Democrats opposing the bill.
Should the legislation pass the Senate, it moves to the House, a thornier arena to traverse.
SB 311 passed the House with 58 votes, all Republican, short of the 60 needed to override a veto. Three Republicans, all likely yeas, were absent.
Conservative activists have specifically targeted Manning and Greenspan, the latter of whom grilled a committee witness in May who claimed the Ohio Department of Health suppresses data showing COVID-19 is over-hyped.
As of Sunday, COVID-19 has hospitalized more than 25,000 Ohioans and killed nearly 7,000. At least 475,000 residents have been infected.
Patriots for Ohio, a conservative political group run by former state Senate candidate Melissa Ackison who lost in the primary, sent a text to members Friday morning urging them to call “weak links in the override process:” Manning and Greenspan.
During the primary, Ackison accused DeWine of “tyranny” in his COVID-19 response.
Ohio Stands Up, an outfit with ties to a prominent anti-vaccine group, also referred to the two as “weak links” in a social media post.
“EVERYONE needs to call, email and push these two until we get a public commitment that they will vote for the override,” wrote Tom Renz, an attorney who’s also handling a lawsuit against coronavirus restrictions on behalf of Ohio Stands Up.
Time is of the essence. Lawmakers must override the governor’s veto before the legislative session ends Dec. 31. Christmas also complicates the scheduling.
If lawmakers fail to override the veto by their deadline, the bill will need to be reintroduced and begin the process anew to become law.
Greenspan said Wednesday that DeWine had not contacted him about his vote. Dan Tierney, a DeWine spokesman, did not answer a question about the claim.
“We remain in discussions with the General Assembly on this issue,” he said. “Please also note that as a Senate Bill, the override would need to start in the Senate, if it is pursued.”