Thursday, October 08, 2015

Vote No on Ohio Issue 2, 2015

Issue 2 has two purposes.  One is to prevent Issue 3 (the marijuana amendment) from coming into effect even if it passes.  The second purpose is to prevent the establishment of future monopolies through the amendment process.

I agree with the purposes of the issue, but not the way in which its framers are trying to achieve them.  The language of issue 2 claims that if it passes, issue 3 will not go into effect even it does pass.  But the Ohio Constitution says the following in Article II section 1b :
If conflicting proposed laws or conflicting proposed amendments to the constitution shall be approved at the same election by a majority of the total number of votes cast for and against the same, the one receiving the highest number of affirmative votes shall be the law, or in the case of amendments to the constitution shall be the amendment to the constitution.
So therefore the only scenario in which issue 2 would achieve its first purpose would be if issue 2 passed with a higher number votes than issue 3.  This seems highly unlikely to me.  I would estimate that 95% of the people who vote “yes” on issue 3 will vote “no” on issue 2.  A significant number of voters always vote “no” everything and this number is likely to be larger in this election.

The language included to attempt to prevent future monopolies is weak.  The Ballot Board, consisting of the Secretary of State and four others chosen by Ohio law (Article XVI, section 1), would have the power to determine if an issue to amend the constitution establishes a monopoly.  If they find that it does, then another issue would be put on the ballot stating that the opposing issue establishes a monopoly and that if this issue passes, then the other would not go into effect.  In other words, you would have to pass two issues instead of one to establish what Ballot Board considers a monopoly.  This is unlikely to do any good for the same reason that the first purpose is unlikely to be accomplished.  It essentially assumes that the voters are too stupid to decide these things for themselves.

And of course issue 2 does nothing to repeal existing monopolies that have already been placed into the constitution.  A prime example is the gambling amendment that passed a few years ago.  

So what’s the harm in passing issue 2?  Ohio already allows us to put issues on the ballot without the approval of the legislature.  This really already puts Ohio outside the definition of a republic which is a violation of the Article IV section 4 of the U.S. Constitution.  But giving the Ballot Board the authority to put issues on the ballot extends this unconstitutionality even further.  We are supposed to be a republic, not a democracy.  This means that all of our state laws must be passed by our legislature.  And any law that establishes a monopoly is essentially a Bill of Attainder which is unconstitutional under the federal constitution.  The Ohio Supreme Court already has the authority deny the enforcement of such laws.  The vague phrase "similarly situated persons or nonpublic entities" is dangerous, giving the Ballot Board and/or the courts a lot wiggle room for interpretation.  Its hard enough to get the courts apply the laws correctly when they are simple and well-written.

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