Dem members of Ohio Ballot Board criticize AG for representing them without notice in lawsuit

The Gavel outside the Supreme Court of the State of Ohio, September 20, 2023, at 65 S. Front Street, Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal. Republish photo only with original article.)

The two Democrats on the Ohio Ballot Board called out the state attorney general for speaking on their behalf in a lawsuit about ballot language for the proposed redistricting amendment, and wrote their own court document agreeing that the language violates the constitution.

The Ohio Ballot Board decides what language voters will see on their ballots when they go to vote, but that summary language does not change what the proposed amendment would actually do. In a 3-2 vote, the Ohio Ballot Board approved summary language that supporters of the anti-gerrymandering amendment say is biased against the amendment.

The board is now being sued by authors of the amendment for approving language attorneys for Citizens Not Politicians say is deceptive and misleading to the voters. The language was written by Ohio Secretary of State Frank LaRose and his staff, as LaRose told the board and attendees of the August board meeting in which the language was approved .

“I wrote this,” LaRose said, “with the help of my team and based on the input of those that are for and those who are against the issue.”

Amendment creators took issue with nearly every part of the LaRose language , up to and including Issue 1’s title: “To create an appointed redistricting commission not elected by or subject to removal by the voters of the state.”

The proposed amendment signed by more than 535,000 verified Ohio voters would replace the current Ohio Redistricting Commission made up of seven politicians, including LaRose, with a 15-member citizens commission made up of Republicans, Democrats, and independents.

Challengers to the LaRose-written summary language took their complaints to the Ohio Supreme Court where they are asking the court to compel the board to change the language, citing constitutional rules that dictate ballot language.

The approved language includes a change made during the meeting by state Sen. Theresa Gavarone, R-Bowling Green, that states the redistricting amendment would require the 15-citizen commission to “gerrymander the boundaries of state legislative and congressional districts.”

LaRose agreed with the change, as the argument was made that the word “gerrymander” was already included in the amendment in other ways.

“So in that sense, that must not be an off-limits word if it’s proposed by the petitioners,” LaRose said at the meeting.

State Sen. Paula Hicks-Hudson, D-Toledo, and Rep. Terrence Upchurch, D-Cleveland, both voted against the language, with Hicks-Hudson telling the board then that the change to the summary language was “a dangerous proposal that threatens the integrity of the vote on Issue 1.”

During discussion, LaRose further asked Hicks-Hudson if she was considering supporting the change, to which she responded, “heck no.”

Before the LaRose language was ultimately approved, Hicks-Hudson made a motion to adopt the Citizens Not Politicians-written summary, which was voted down 3-2. In a last-ditch effort, she also made a motion to replace all of LaRose’s language in the summary with the Citizens Not Politicians language before they voted to approve. That motion failed 3-2 as well.

So, Hicks-Hudson and Upchurch were unhappy when they were listed as parties whom the Ohio Attorney General’s Office spoke on behalf of in the legal “answer” to the lawsuit. The document is a typical first take on the complaints made in a lawsuit, without much in the way of dialogue other than simple denials of wrongdoing and acknowledgements of legal arguments.

Often in the document, filed on Monday, Assistant Attorney General Julie M. Pfeiffer states the proposed amendment and the ballot language “speak for themselves.”

But in the first paragraph, Pfeiffer lists Hicks-Hudson and Upchurch “in their official capacities as members of the Ohio Ballot Board,” meaning the arguments made in the document stand as legal comment from the two Democrats who voted against the measure, just the same as it would for LaRose, Gavarone and fellow board member William Morgan, who supported the language.

Upchurch and Hicks-Hudson released a statement saying the document was filed “without warning or legal consultation,” and that it “disregarded (their) stance to end gerrymandering in Ohio and their vote against the deceptive and misleading Citizens Not Politicians ballot language.”

“It’s absurd that, as a member of the Ohio Ballot Board, my voice and the voice of the people continues to be ignored and trampled when it comes to securing the dignity of the Citizens Not Politicians amendment language,” Upchurch wrote in the statement.

Since then, they have filed their own answer to the complaint, representing themselves in the filing.

In a document filed Wednesday evening with the state supreme court, Hicks-Hudson and Upchurch identified themselves as the only votes against the measure, and laid out their own complaints about the process started by the AG’s office.

“We have real concerns about the process by which the language was adopted and the truthfulness behind the Secretary of State’s honest and fair consideration of the language proposed by the ballot issue committee, and we believe that our input in this matter, and our responses, are relevant to this litigation,” the pair wrote in court documents.

The Democrats also used their own filing to “admit the Ballot Board as a whole violated its constitutional duty,” and “further admit that the chosen ballot title is inaccurate, biased, argumentative and misrepresents the proposed Amendment’s procedures for removing commissioners who fail to comply with their duties.”

“The undersigned Respondents clarify that they personally did not act ‘in clear disregard of applicable law and their legal duty,’ contrary to the actions of the other Ballot Board members,” Hicks-Hudson and Upchurch wrote.

Outside counsel

House and Senate Minority Leaders Allison Russo and Nickie Antonio stood behind their colleagues, sending a letter on Tuesday to Ohio AG Dave Yost “detailing his blatant disregard for the legal rights of the minority members of the Ohio Ballot Board.”

The letter states that Russo and Antonio sent another letter to the AG’s Office on Aug. 23, requesting the appointment of outside counsel.

The minority leaders aren’t unfamiliar with speaking on their own in a lawsuit filed against a group of which they were a part. They filed their own joint document after redistricting maps adopted by the Ohio Redistricting Commission were challenged in court .

On Aug. 26, the same day the AG’s office filed the answer to the ballot board lawsuit, the director of outside counsel, Shawn Busken, called House and Senate Minority caucus attorneys “in response to the letter that was sent to the Attorney General about the ballot board case,” according to the Tuesday letter, released to media.

“When the call was returned and the House Minority Counsel spoke with Mr. Busken, he relayed that it was your office’s position that the Ballot Board speaks only through the Chair, Secretary of State Frank LaRose, and that only the Secretary of State was consulted about this matter and the litigation,” the leaders stated in the Aug. 27 letter to Yost.

The minority leaders said Busken confirmed that “nobody except the Chair, not even the named members of the Senate Majority nor the House Majority were consulted, nor were they asked if they had any information and input for the Answer.”

The AG’s Office also denied the request for outside counsel, according to Russo and Antonio.

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The letter went on to cite the Ohio Rules of Professional Conduct, saying the court document “expressly prohibits this exact type of intentional and explicit politically-motivated action.” The ORPC is a document regulating the conduct of the state’s lawyers.

Democrats pointed specifically to rules about the “scope of representation and allocation of authority between client and lawyer,” communication between clients and situations with conflicts of interest.

Russo and Antonio argued that when conflicts of interest arise, the ORPC requires attorneys to obtain waivers from clients “recognizing and accepting the representation, despite the conflict of interest,” something they have not been asked to do.

“Our interests substantially diverge from those of the Majority members of the Ballot Board,” the letter states.

The minority leaders claim the first time the AG’s answer to the lawsuit was seen by Democrats was when it was sent to caucus attorneys by Pfeiffer the day it was filed.

Antonio and Russo said they would be asking again for appointment of outside counsel, and if no appointment is made, “we will be pursuing our available legal avenues.”

Hicks-Hudson and Upchurch laid out this same argument in their self-filed answer to the lawsuit, calling the AG’s office actions a “deliberate political maneuver” and saying they “vehemently disagree with many of the answers provided by the answer filed by the Attorney General’s Office.”

“We are individually named as Respondents in this matter, and we will continue to file our own pleadings, regardless of the Attorney General’s improper moves, unless and until the Court instructs us otherwise,” the document stated.

The Attorney General’s Office told the OCJ the ballot board “is like any other board in Ohio.”

“The AGO represents the whole board and defends the board’s vote,” spokesperson Steve Irwin said in a statement. “No individual member of any board is entitled to counsel. This is not unusual. It’s the way the law works.”

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