Upcoming August special election is illegal, law experts say

By: - May 15, 2023 4:45 am

COLUMBUS, Ohio — MAY 10: Hundreds of protesters against SJR 2 fill the rotunda before the Ohio House session, May 10, 2023, at the Statehouse in Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal)


After the major decision to reinstate August special elections in an attempt to thwart a possible abortion ballot, leading constitutional law experts have weighed in that the resolution is illegal.

State lawmakers in the House and Senate passed Senate Joint Resolution 2 on Wednesday evening to put a measure on a special election ballot in August to require a 60% supermajority of Ohio voters to amend the state’s constitution, a move some lawmakers hope will make it less likely that voters will make abortion legal in November.

News 5 spoke to a multitude of legal experts with different political leanings. Each came to the same conclusion that opponents would have a very strong legal case against the resolution.

Case Western Reserve University law professor Jonathan Entin and Cleveland State University former dean Steven Steinglass are the state’s leading experts in Ohio constitutional law — and are both nonpartisan.

“It’s very unlikely that the legislature could actually set an August election simply by passing this resolution,” Entin said.

To see why Entin believes that the lawmakers are wrong, let’s rewind back a few months.

In December 2022, the General Assembly voted to ban August special elections, with one exception. That exception is if a political subdivision or a school district is in a fiscal state of emergency.

What the lawmakers are attempting to do now is overturn that ban with their resolution. Steinglass explains that can’t be done.

“It’s a direct conflict with a bedrock principle of Ohio constitutional law,” Steinglass said.

In 1897, the Ohio Supreme Court stated that the legislature couldn’t amend statutes by passing joint resolutions.

Supporters of S.J.R. 2 say they have case law, one more recent, that leans their way.

“The court decision was that you don’t necessarily have to have this spelled out in a bill,” State Rep. Brian Stewart (R-Ashville) said. “A resolution suffices.”

The case Stewart is referring to is from 1967. Here is the direct language:

“The General Assembly may authorize such special election on a certain date by a joint resolution without enacting a statute.”

However, Steinglass said the law that the General Assembly passed in December makes this argument invalid since Ohio already has an existing ban. The reason why it worked in the 1960s is that the court said there wasn’t a “conflict with existing statute.”

“If action… authorizing a special election on a certain day, does conflict with an unrepealed existing statute, the action so taken pursuant to specific constitutional authority would require a holding that the statute was unconstitutional so far as it conflicted with such action,” the court explained.

The experts say the GOP has essentially tied its own hands.

Republicans disagree, saying this will be final.

“I’m not going to quibble about the route we took if we got to the right destination,” Stewart added.

When conducting an analysis of S.J.R. 2, the nonpartisan state-run Legislative Service Commission wrote that “the General Assembly might need to enact separate legislation to allow for the special election.”

The GOP has insisted it has a strong legal case.

What is next for advocates against it?

“The opponents of this can simply attempt to defeat it at the polls in August,” Steinglass said. “Or they can try to get the court to throw out the proposed vote, which happened in 1897.”

A lawsuit won’t prevent the state from getting ready for an election, Entin said, so the Ohio Supreme Court will need to weigh in on if it can be conducted.

“You can’t run an election until it’s clear that the election would, in fact, be lawful,” Entin added.

Advocates raise concerns about that logic.

The Ohio Supreme Court did shut down district maps (numerous times, with extensive explicit feedback on not to gerrymander) for Ohio elections. The GOP lawmakers moved forward anyway.

This article was originally published on News5Cleveland.com and is published in the Ohio Capital Journal under a content-sharing agreement. Unlike other OCJ articles, it is not available for free republication by other news outlets as it is owned by WEWS in Cleveland.

Follow WEWS statehouse reporter Morgan Trau on Twitter and Facebook.



Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.

Morgan Trau
Morgan Trau

Morgan Trau is a political reporter and multimedia journalist based out of the WEWS Columbus Bureau. A graduate of Syracuse University’s S.I. Newhouse School of Public Communications, Trau has previously worked as an investigative, political and fact-checking reporter in Grand Rapids, Mich. at WZZM-TV; a reporter and MMJ in Spokane, Wash. at KREM-TV and has interned at 60 Minutes and worked for CBS Interactive and PBS NewsHour.