Of the 11 states that have legalized adult (recreational) use of marijuana, 9 resulted from a ballot initiative where the voters changed the law. This trend is expected to continue, and we expect Ohio to attempt such an initiative in the foreseeable future. Recently, three Ohio citizens have requested the United States Supreme Court to consider the circumstances under which the Secretary of State may prevent ballot initiatives.
The Ohio case arises out of actions taken by the Portage County Board of Elections, pursuant to Ohio Rev. Code § 3501.11(K), “the gatekeeper law.” The Board of Elections refused to certify ballot measures in Garrettsville and Windham, Ohio relating to abolishing various penalties for cannabis possession. The citizens sought a temporary restraining order and a preliminary injunction in U.S. District Court for violations of First and Fourteenth Amendment rights and prior restraint of speech, and the District Court ordered the Secretary of State to put the initiatives on the ballot on September 19, 2018. Then, the District Court issued a permanent injunction that prohibited the Secretary of State “from enforcing the gatekeeper function in any manner that fails to provide a constitutionally sufficient review process to a party aggrieved by the rejection of an initiative petition.”
The Secretary of State appealed to the Sixth Circuit, and it reversed the District Court’s decision holding that “some level of flexible scrutiny lower than strict scrutiny applied, and that the state’s interest in avoiding ballot over-crowding did not impose a significant or unjustified burden on a proponent’s First Amendment rights.”
In arguing for review by the U.S. Supreme Court, the citizens argue that federal courts are split on First Amendment protections for subject matter restrictions on ballot initiatives. For example, the Eighth, Tenth, and D.C. Circuits do not apply First Amendment protections on ballot initiatives; however, the First, Sixth, Ninth, and Eleventh Circuits do. Perhaps more important, even Circuits that apply First Amendment protections are split as to the level of scrutiny applied to such laws.
The two specific ballot initiatives at issue regarding decriminalizing cannabis are now moot (the Windham initiative passed, but the Garrettsville initiative failed); nevertheless, a decision by the U.S. Supreme Court on these general issues may significantly change the potential effectiveness of future ballot initiatives. A copy of the petition for certiorari to the U.S. Supreme Court can be accessed here