Ohio Environmental Council, June 24, 2021
Author: Chloe Quin, OEC Legal Intern
Although the new Budget Bill probably does not strike most Ohioans as a place for major changes in the fight for fair democracy, there are some last-minute additions that should concern advocates. Alongside the subject matter normally covered in a budget bill (public school funding, tax cuts, etc.), there are additional, non-budgetary provisions flying under the radar. Many have far-reaching ramifications, though today we will focus on efforts to establish roadblocks for Ohio citizens seeking a fair opportunity to challenge unfair statutes in court.
Quashing Citizen Dissention
Quietly slipped into the budget bill’s “omnibus amendment” by the Senate, the provision in question delegates great authority to a select few members of the Ohio General Assembly. Specifically, the bill gives only the Speaker of the House Cupp (R) and the Senate President Huffman (R) the power to intervene at any time in lawsuits attempting to challenge legislation. Additionally, the bill provides that should the Speaker or President decide to intervene, they are able to obtain their own legal counsel, rather than the Attorney General—an official elected by Ohioans to provide legal counsel for state offices and agencies. Notably, Ohio taxpayer dollars will compensate this “outside counsel.”
These 11th hour modifications to the Budget Bill will dramatically alter the legal landscape for citizens challenging future statutes. If the change occurs, a plaintiff could face a very powerful coalition across the courtroom aisle: the Executive Agency enforcing the law (the Ohio EPA for example), the General Assembly, and the office of the Ohio Attorney General. This enormous disparity of resources between the state and future plaintiffs is likely to result in effectively silencing many grievances. Plaintiffs may fear the insurmountable cost needed to overpower multiple adversaries. Even if plaintiffs are willing to take part in this David versus Goliath scenario in the courtroom, they are not out of the woods yet: the Attorney General must receive legislative approval before compromising or settling an action, even in cases where the legislature has decided not to intervene.
If the budget bill is signed into law without changes, the power to pick and choose when to intervene will be in the hands of two General Assembly members, the Speaker of the House and the Senate President, creating the potential for a lopsided number of challenges to cases involving environmental issues and other common sense initiatives, including creating fair district maps for Ohio. In fact, on June 8th we saw a last-minute addition to the budget bill to give the Speaker and President the sole power “to intervene in any case challenging a General Assembly or congressional redistricting plan … and to retain independent legal counsel.” See Am. Sub. H.B. 110 (As Passed by Senate) at proposed Section 101.55. Interestingly, although the public will once again foot the bill for the legislature’s independent legal counsel in these cases, Ohioans did not have an opportunity to weigh in on this amendment before it was included in the budget bill.
Hampering Efforts Leading Ohio Away from Remaining “The Nation’s Most Gerrymandered State”
The addition to the bill specifically allowing the legislature to intervene in cases involving redistricting contradicts the will of Ohio voters, who voted overwhelmingly in 2015 and 2018 to change how state politicians draw legislative and congressional district lines. Ohio lawmakers have had a rocky history when it comes to creating fair district maps. Ohio was labeled as one of the most gerrymandered states in the nation, according to a new Associated Press analysis.
The new addition to Ohio’s budget bill—allowing the legislature’s leaders to intervene in any action challenging the new redistricting plan—sends a bad faith signal regarding calls for fair districts in Ohio. If the General Assembly passes a bad district map, and Ohioans want to challenge it, the General Assembly has created a lopsided defense team for those maps, cutting the minority party out of the process (whether Republicans or Democrats are in charge in any given General Assembly). Yet Ohioans passed bipartisan redistricting processes in 2015 and 2018. Any processes used in relation to redistricting should uphold the spirit of the constitutional amendments approved by Ohioans over the past decade, rather than obfuscating the process with partisan interests.