Six of eight contested provisions in ballot language for a proposed state constitutional amendment to alter the drawing of legislative and congressional districts can remain as is, while two must be revised, the Supreme Court of Ohio ruled today.

In a 4-3 per curiam opinion, the Supreme Court found that most of the Ohio Ballot Board’s language describing proposed Issue 1 for the Nov. 5 general election ballot is consistent with the measure's full text. Citizens Not Politicians, a group that proposed the issue, contested eight of the 10 summary points appearing on the ballot language and the title of the ballot language itself, both of which will appear before voters.

The opinion noted the Court can only invalidate the board’s language if it finds the wording would “mislead, deceive, or defraud the voters.” The Court majority found that most of the ballot board’s amendment’s summary and title were not misleading and did not need to be revised.

The opinion stated that Citizens Not Politicians describes itself as “a coalition of people and organizations that seeks to end gerrymandering in Ohio by removing politicians from the redistricting process, with the hope of achieving fair and impartial state legislative and congressional districts through an open and independent process.” Among other features, Issue 1 proposes to create a 15-member redistricting commission responsible for adopting redistricting plans.

In a 3-2 vote in August, the five-member ballot board approved the language that will appear on the ballot. The Ohio Constitution requires the ballot language to “properly identify the substance of the proposal to be voted upon” but “need not contain the full text nor a condensed text of the proposal.”

The board approved a summary of the ballot language, which contains 10 sections describing the issue. Citizens Not Politicians sought a writ of mandamus from the Supreme Court, asking it to direct the ballot board to rewrite the ballot language for eight sections.

Today, the Court directed the board to revise the language in section 5 to explain when a lawsuit may be filed to challenge a redistricting plan. It also required a change to section 8, describing the ability of the public to provide input on the map-making process.

Chief Justice Sharon L. Kennedy and Justices Patrick F. Fischer, R. Patrick DeWine, and Joseph T. Deters joined the majority opinion.

In a separate concurring opinion, Justice Fischer discussed section 2 of the ballot language, which states the new commission is “required to gerrymander the boundaries of state legislative and congressional districts to favor either of the two largest political parties….” He noted the majority relied on a 1986 U.S. Supreme Court ruling in which Justice Sandra Day O’Connor described a “bipartisan gerrymander.” Justice Fischer wrote the ballot language’s use of “gerrymander” is accurate because the amendment requires the commission to create districts that ensure certain partisan outcomes and would negatively impact independent and third-party voters.

In a dissenting opinion, Justice Michael P. Donnelly wrote that the ballot board is forbidden from using language that persuades voters to support or oppose an amendment. He added the board can approve separate language for an argument against the proposed amendment.

Referencing a recent Court decision regarding the ability to pursue a lawsuit for an injury sustained from swallowing a chicken bone within a “boneless” chicken wing, Justice Donnelly stated, “Given that the four members of this court in the majority today apparently think that the word ‘boneless’ means ‘you should expect bones,’ … I’m sure it comes as no great surprise that they think that a constitutional amendment to ‘ban partisan gerrymandering’ means to ‘require[] gerrymander[ing].’” 

He wrote that the majority opinion extracts terms such as “gerrymandering” and “partisan political outcomes,” and divorces them from the context of the proposed amendment “to allow for ballot language that is clearly contrary to both the letter and the spirit of the proposed amendment.”

In a separate dissenting opinion, Justice Jennifer Brunner wrote that the ballot board chose to write language to persuade voters to reject the amendment rather than just explain the amendment provisions in neutral terms.

“What the ballot board has done here is tantamount to performing a virtual chewing of food before the voters can taste it for themselves to decide whether they like it or not,” she wrote.

Justice Brunner also wrote that stating the amendment would “require gerrymandering” is “misleading, deceitful, and a fraud upon the voters.” She proposed the board rewrite most of the ballot language, calling for “a nearly complete redrafting of what is perhaps the most stunningly stilted ballot language that Ohio voters will have ever seen.” 

Justice Donnelly also joined Justice Brunner’s opinion. Justice Melody Stewart also joined both Justices Donnelly’s and Brunner’s opinions.

2024-1200. State ex rel. Citizens Not Politicians v. Ohio Ballot Bd., Slip Opinion No. 2024-Ohio-4547.

Please note: Opinion summaries are prepared by the Office of Public Information for the general public and news media. Opinion summaries are not prepared for every opinion, but only for noteworthy cases. Opinion summaries are not to be considered as official headnotes or syllabi of court opinions. The full text of this and other court opinions are available online.

PDF files may be viewed, printed, and searched using the free Acrobat^® Reader
Acrobat Reader is a trademark of Adobe Systems Incorporated.