William Malson, Blog Editor, University of Cincinnati Law Review
In 1912, the Ohio Constitution was amended to include the people’s right of referendum, a power that could be exercised against the General Assembly to overturn laws by popular vote. The mechanics and limitations of this power are specified in great detail in Article II of the Ohio Constitution. Courts have consistently held that, to effectuate the right of referendum, the power should be liberally construed, and laws exempted from that power must be plainly and persuasively included in the exceptions in Article II, § 1d. Puzzlingly, courts have limited this construction to apply to constitutional limitations, rather than statutory ones. Statutory regulation, by contrast, must be strictly adhered to unless the statute specifically allows for substantial, and not total, compliance. In effect, General Assembly regulations on the referendum power are given greater effect than constitutional limitations on that same power. Even more puzzling is the position of courts, unwavering since the referendum power was adopted, that the power is itself legislative in nature, undelegated, and reserved by the source of the legislative power itself—the people. And yet, courts uphold costly and time-consuming regulations placed on the people’s exercise of their legislative power by the General Assembly.
The referendum power should at least be liberally construed against General Assembly regulations. These regulations should not be construed more strictly than constitutional limitations on the same power. However, to be consistent with the plain language of the Ohio Constitution, and court interpretations of the referendum power as legislative in nature, all General Assembly regulations on that power should be overturned. Part II of this article presents the origins of the referendum power. Part III presents courts’ interpretations of that power as legislative. Part IV presents example General Assembly regulations on the referendum power and explains their cost. Part V concludes.
II. The Origins of the Referendum Power
The Ohio Constitution is remarkably specific in its construction of the referendum power: the minimum signature requirements are announced, a timeline is set, ministerial actions are compelled, and the result of the entire process is given constitutional weight. The people’s referendum power over General Assembly regulations is delineated in Article II, §§ 1c-g of the Ohio constitution. Section 1c lists the requirements of a referendum petition and the procedure for putting the referred law to a general vote. These requirements, together with other limitations in Article II, constitute the “machinery to carry out the referendum” as it was adopted by the Ohio Constitutional Convention of 1912. Rather than generally describing a right held by the people, § 1c presents the process “with the particularity of detail usually found only in legislative acts,” “leaving nothing to the action of the general assembly.” In effect, the people have regulated themselves, adopting a procedure for the overturning of General Assembly laws. It is then no surprise that courts have interpreted this procedure as itself Legislative in nature.
III. The Legislative Nature of the Referendum Power
The constitutional referendum process has been interpreted by Ohio courts—and the Supreme Court of the United States—to be legislative. The referendum power is, by the Ohio constitution’s description, reserved by the people. Prior to the adoption of the referendum power, the Ohio constitution vested the legislative power solely in the General Assembly. By adopting the right of referendum, the people expressly limited the General Assembly’s legislative power by reserving to themselves the power to reject laws by popular vote. This power is not a delegation from the legislature to the people, but a specific reservation of power ultimately derived from the people. As a result of this reservation, the term “legislature” in Ohio now not only includes the two branches of the General Assembly but “the popular will as expressed in the referendum provided for in Sections 1 and 1c of Article II of the Ohio Constitution.”
This interpretation is not novel. Two cases are of particular interest: State ex rel. Davis v. Hildebrant, and the Supreme Court of the United States’ affirmation of the same in Ohio ex rel. Davis v. Hildebrant. In 1915, a referendum petition seeking to overturn a redistricting act of the General Assembly completed the constitutional process and was submitted to Ohio voters. The referendum was successful and the law was rejected. A dissatisfied citizen filed suit in the Ohio Supreme Court seeking a writ of mandamus asking that the referendum proceedings be declared invalid, and that the law be upheld. In refusing the writ, the court asked a question central to this article’s argument: Does the term “legislature” as used in Article I, § 4 of the U.S. Constitution comprehend “simply the representative agencies of the state,” or does it comprehend the “various agencies in which is lodged the legislative power to make, amend and repeal the laws of the state”—including the power reserved to the people enabling them to adopt or reject General Assembly Laws?” Certainly the legislative power has been delegated to the Ohio Senate and House of Representatives, but the people of Ohio have, through the referendum power found in Article II, imposed conditions under which laws passed by the bicameral body may become overturned. Nowhere is “legislature” defined to mean a bicameral body: Webster’s New International Dictionary defines it as the “body of persons in a state, or politically organized body of people, invested with power to make, alter and repeal laws.” The Century Dictionary defines it even more broadly, as “[a]ny body of persons authorized to make laws or rules for the community represented -by them.” Even at the time of the U.S. Constitution’s creation, the legislatures of Pennsylvania, Georgia, and Vermont consisted of a single house. It is the people, not a unicameral or bicameral body, who designate an agency as the state lawmaking body, and it is the people’s right to impose on that agency “any checks or conditions under which a law may be enacted and become operative.” Prior to the adoption of the referendum power, the “legislative power” of the state was vested in the General Assembly—but by the adoption of the amendment of 1912 the people limited this power. In affirming the Supreme Court of Ohio’s decision, the Supreme Court of the United States found that, by adopting the referendum power, the legislative power was “expressly declared to be vested not only in the . . . General Assembly, but in the people in whom a right was reserved by way of referendum to approve or disapprove by popular vote any law enacted by the General Assembly.”
If the referendum power is truly legislative, it is surprising that courts would accept General Assembly regulations on a legislative body from where their power originates. And yet, regulations are consistently upheld, costing petitioners signatures, time, and hundreds of thousands of dollars.
IV. General Assembly Regulations on the Referendum Power
Despite the clear language of Article II and the courts’ position that the referendum power is reserved by the people, the General Assembly has imposed numerous burdensome regulations on the exercise of that power. Would-be petitioners must drudge through an arduous statutory process before the constitution process is even begun. For instance, ORC 3519.01(B) requires persons seeking to refer a law to create an additional petition, summarize the law, circulate the petition, have it signed by 1,000 electors, and submit it to the Secretary of State and the Attorney General, who must examine the referendum summary and certify it within ten business days if it is a “fair and truthful statement of the measure to be referred.” No hint of this requirement exists in the Ohio constitution. In practice, summarizing a long and complicated law for the average voter can result in a month-long delay—or a rejection entirely—before a referendum petition enters the constitutional process, reducing the constitutionally-allotted ninety-days by one-third, or negating the right entirely.
The most recent referendum attempt in Ohio came on the heels of the passage of Amended Substitute House Bill 6 (“H.B. 6”), signed into law on July 23, 2019. H.B. 6 established the nuclear generation fund out of which qualifying nuclear power plants in Ohio would receive approximately $1.05 billion over the next seven years. Petitioners attempting to submit the law for referendum filed their first summary of the law with the Attorney General’s office on July 29, 2019. The Attorney General rejected the petition’s summary as inaccurate on August 12, fourteen calendar days later. Petitioners submitted a revised summary on August 16, approved by the Attorney General on August 29, thirty-one calendar days after the first summary was submitted—thirty-seven days after the law was passed—a loss of over one-third of the constitutionally allotted time.
In addition to losing time, petitioners can lose signatures by complying with ORC 3519.16. This section of the Ohio Code requires petitioners to file electronic copies of each part-petition—copies of the petition circulated by an individual within a county—numbered sequentially, along with a summary of the number of part-petitions filed per county and an index of the electronic copy. In practice, this regulation is extremely time-consuming and expensive, costing hundreds of thousands of dollars and necessitating the destruction of tens of thousands of signatures that may not strictly comply with the additional statutory requirements of 3519.16.
Worst of all, petitioners may have their entire petition invalidated if even a single person fails to file the required form under ORC 3501.381(A). This regulation requires persons to file statements who will give or receive compensation for “supervising, managing, or otherwise organizing any effort to obtain signatures” for referendum petitions. The Ohio Secretary of State supplies the form, today known as Form 15, which must be filed prior to the date the person gives or receives compensation, or obtains signatures for the petition, whichever is later. Failure to properly file a Form 15 results in invalidation of the entire petition—not just the part-petition for which the person was gathering signatures. The Ohio Supreme Court interpreted this penalty in Ohio Renal Association. v. Kidney Dialysis Patient Protection Amendment Commt. (“ORA”).
In ORA, the Ohio Renal Association challenged an initiative petition to place a constitutional amendment on the November 6, 2018 ballot proposed by respondents Kidney Dialysis Patient Protection Committee. Relators did not allege that any of respondent’s petitioners failed to file the required disclosures under ORC 3501.381, but that four individuals and two companies failed to file the requisite form before circulators under their supervision obtained signatures for the petition. Although the court reaffirmed its obligation to “liberally construe” the people’s legislative rights, it presented the contradictory standard that “when an election law is clear, ‘the settled rule is that [it is] mandatory and require[s] strict compliance.’” There, the court found that ORC 3501.381(A)(1) was abundantly clear that individuals or entities who are compensated or who will compensate others are prohibited from collecting signatures before they have filed a Form 15 with the Secretary of State. ORC 3501.381(C) provides that if division (A) is violated, the petition—not just the affected part-petitions—on which the individual or entity was working on shall be deemed invalid. Therefore, since “strict compliance” with the law is required, the entire petition must be invalidated.
In a merit brief attached to ORA, respondents detailed the enormous efforts taken to comply with Ohio statutory regulations on the constitutional power of referendum. At virtually every step of the petition-circulation process, the committee was forced to spend additional time, money, and manpower to comply with the regulations imposed by ORC 3519.16(B). Circulation managers performed initial quality-control checks for compliance, transported the part-petitions to a central office for a second quality-control check, and returned any defective part-petitions to the circulators to correct errors, which were subject to another quality-control check after being filled out correctly. Prior to this stage, the part-petitions could not be numbered in compliance with 3519.16(B), another step costing extra time and money. All of these steps had to be completed before the electronic copy of the part-petition could be created in compliance with Ohio law—part-petitions could not be scanned before they were numbered, and they could not be numbered before they had passed every prior stage. The combined effect of the statutory burdens of ORC 3519.16 and 3501.381 lead to possible errors in the required summary, and necessitated the outlay of approximately $230,527. To put the difficulty of the electronic copy requirement alone into perspective, respondents had to scan “nearly 20,000 part-petitions, each containing 14 stapled pages-or approximately 280,000 separate pieces of paper.”
These are just three of the regulations that limit and restrict the people’s exercise of their referendum power. What might be argued, despite the burdens imposed above, is that such laws may be constitutional as long as the referendum power is liberally construed against those laws. But as the court demonstrated in ORA, courts do not construe General Assembly regulations the same as constitutional limitations. In fact, courts give greater deference in this area to acts of the bicameral body than to the constitutional guarantees of Article II, § 1c. One person’s failure to properly file a one-page form results in the death of the petition.
General Assembly regulations on the people’s referendum power are inconsistent with the plain language of the Ohio Constitution and court interpretations of the referendum power as legislative. The detailed machinery of the referendum should constitute the entire process that, constitutionally, people must follow in order to refer a law. Somehow, people exercising their right of referendum are both the ultimate source of legislative power and yet subject to the regulatory conscience of the General Assembly. Courts have allowed the General Assembly to steamroll the people’s power by imposing enormous costs and restrictions on the same, in work hours, financial costs, and time-consuming requirements that narrow the already small window for referendum. Even if petitioners can safely navigate the tedious minutiae of ORC 3519.01 and 3519.16, there is a landmine waiting in 3501.381: If even one person files Form 15 one day late, the entire petition is invalidated.
Ohio courts must resolve these internal contradictions. Courts should liberally construe the referendum power against General Assembly regulations, not just constitutional limitations. However, in order to be entirely consistent with the text and intent of the Ohio constitution, courts should overturn all General Assembly regulations on the people’s power of referendum as delineated in Article II.
 Oh. Const. Art. II, § 1c-1g. § 1c specifies that any referendum petition must have signatures attached totaling six percent of the electors of the state. Such a petition must be filed with the Secretary of State within ninety days after the law it seeks to refer has been filed by the Governor with the Secretary of State. At such time, the Secretary shall submit the petition to the electors for their approval or rejection.
 Id. at § 1c.
 Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 566, 36 S.Ct. 708, 60 L.Ed. 1172 (1916).
 State ex rel. Keller v. Forney, 108 Ohio St. 463, 467, 141 N.E. 16 (1923).
 Shryock v. Zanesville, 92 Ohio St. 375, 382, 110 N.E. 937 (1915).
 See State ex rel. Davis v. Hildebrant, 94 Ohio St. 154, 114 N.E. 55 (1916); Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 36 S.Ct. 708, 60 L.Ed. 1172 (1916).
 Oh. Const. Art. II, §§ 1 & 1c.
 State ex rel. Davis v. Hildebrant, 94 Ohio at 162.
 Eastlake v. Forest City Ents., Inc., 426 U.S. 668, 672, 96 S.Ct. 2358, 49 L.Ed.2d 132 (1976).
 State ex rel. Davis v. Hildebrant, 94 Ohio at 154.
 See Id. and Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 566, 36 S.Ct. 708, 60 L.Ed. 1172 (1916).
 State ex rel. Davis v. Hildebrant, 94 Ohio St. at 155.
 Id. at 156.
 Id. at 155, 157.
 Id. at 160.
 Id. at 162 (emphasis added).
 Id. (emphasis added).
 Id. at 163.
 Id. at 162.
 Id. In disposing of a related case, Ohio Chief Justice Fuller opined that the legislative authority is supreme “except as limited by the constitution of the State, and the sovereignty of the people is exercised through their representatives in the legislature unless by the fundamental law power is elsewhere reposed.” McPherson v. Blacker, 146 U.S. 1, 25, 13 S.Ct. 3, 36 L.Ed. 869 (1892) (emphasis added).
 Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565, 566, 36 S.Ct. 708, 60 L.Ed. 1172 (1916).
 The Ohio Legis., House Bill 6: Status (2019), https://www.legislature.ohio.gov/legislation/legislation-status?id=GA133-HB-6.
 See Creates Ohio Clean Air Program, 2019, Am. Sub. H. B. No. 6, 2019, Ohio Laws File 12, § 3706.49; See generally William Malson, H.B. 6: Is this the End of Nuclear Power in Ohio? Univ. of Cincinnati L. Rev. (Sept. 11, 2019), https://uclawreview.org/2019/09/11/h-b-6-is-this-the-end-of-nuclear-power-in-ohio/.
 List of petitions submitted to the Attorney General’s Office, Ohio Att’y Gen., https://www.ohioattorneygeneral.gov/Legal/Ballot-Initiatives/Petitions-Submitted-to-the-Attorney-General-s-Offi (last visited April 30, 2020).
 OHIO RENAL ASS’N v. KIDNEY DIALYSIS PATIENT PROT. AMEND., 2018 OH S. Ct. Briefs LEXIS 1543, 58, 60, 61-62.
 Form No. 15: Statement of Receiving or Providing Compensation For Circulating a Statewide Issue Petition, Ohio Sec’y of State (Sept. 2017), https://www.sos.state.oh.us/globalassets/elections/forms/15.pdf.
 ORC 3501.381(A)(1) and (2).
 ORC 3501.381(C).
 154 Ohio St.3d 86, 2018-Ohio-3220, 111 N.E.3d 1139, ¶ 24.
 Id. at 86. While this case is about a proposed constitutional amendment, and not the referendum power, the regulation applies to both, and this case is demonstrative of the burdens that Ohio regulations impose.
 Id. at 88.
 Id. at 88.
 Id. at 91.
 Id. at 92.
 OHIO RENAL ASS’N v. KIDNEY DIALYSIS PATIENT PROT. AMEND., 2018 OH S. Ct. Briefs LEXIS 1543, 56.
 Id. at 57.
 Id. at 58.
 Id. at 58, 60.
 Id. at 59.