OHIO ISSUES THREE, TWO, AND ONE

by Bruce Dunlavy (My blog home page and index of other posts may be found here.)

I’ve been asked about my opinions on the three Statewide issues on the Ohio ballot this year.  I’ve actually read the issues, so I think I have the standing to comment. I do have opinions, and here they are.

First, let me say that my strongest opinion is that Issue One is the most important of the three.  We have a rare chance to actually do some good, so we should pass Issue One.

That said, I will here discuss the issues in reverse order, since they are easiest to understand that way, and the discussion will start with the issue commanding the most interest from voters.

Issue 3 (read it here) is the one that would legalize marijuana cultivation, sale, and use in Ohio. I think legalizing marijuana is something that should have been done a long time ago. Nevertheless, this is not the way to do it. Here’s why:

1. The proposal writes the entire process into the Ohio Constitution. This is not what Constitutions are for. They are designed to be general frameworks within which specific laws can be enacted and amended.
The group behind this proposal took their cue from those who prepared the casino amendment of a few years ago. The interests of money who would profit from the Amendment’s passage wrote it themselves to specifically benefit themselves and exclude others. They spent millions of dollars writing it and gathering the necessary signatures to get it on the ballot, and plenty more on advertising.
Any change – no matter how minor – would require another Constitutional Amendment. The casino amendment – which, like this one, specified certain pieces of land (which those behind the amendment controlled) for the businesses to be established. Not long after, they wanted to change the location of the Columbus casino. This required the passage of another Constitutional amendment. Cluttering up a Constitution with all this stuff that really should be in statute law is no way to run a State.

2. As the casino amendment did, Issue 3’s Section F creates a legally-established oligopoly whereby a small number of operators create for themselves what amounts to a license to get rich with government protection against competition. Their advertising claims that the ten growing sites (Marijuana Growing, Cultivating, and Extracting facilities, or “MCGEs”) created are temporary – you know, just to see how it works – and that more can be added as necessary. The amendment gives the ten original sites a four-year head start before any others can even be considered. By that time they should be so well-established that competing with them would require an enormous speculative expenditure – up front for installation, and afterward for advertising, and distribution.
The Issue as written (also in Section F) says that in the fourth year after adoption, if the Marijuana Commission determines that the supply of marijuana being produced is not sufficient to meet demand, “the Commission may issue a license for an additional MGCE facility at a site other than what has been designated herein.” The ambiguity in the sentence allows interpretations meaning “only one additional site” or “any number of additional sites.” Too ambiguous for me.
However, that point is probably moot, since the proposed amendment would allow the four existing MGCEs to expand to as much “adjacent land” (defined in Section L of the proposal as a parcel of land any part of which is within 1000 feet of their existing property line) as they can obtain, so the likelihood that they would allow their production totals to be insufficient to meet demand and thus allow the creation of more MGCEs is very small. Their advertising claims the amendment would not create a monopoly, oligopoly, or cartel is disingenuous at best.

3. The proposal allows anyone with a medical marijuana prescription (and we’ve seen from the beginning in California how easy it is to get one of those) to use marijuana while on the job (employers are specifically prohibited from interfering with it).  I’m not sure that’s a good idea.

I have no objection to the legalization of marijuana, but this isn’t the way to do it. Let’s defeat this measure and then pass a good one. I’m planning to vote NO in Issue 3.

Issue 2:
The General Assembly created this proposed amendment (read it here) specifically to stop Issue 3’s enactment. It writes into the Constitution an article stating that monopolies, oligopolies, cartels, and preferential tax treatments constitute restraint of trade or commerce and are thus “injurious to this state and its citizens” (Article II, Division[B] [1]). It stipulates that Issue 3, if passed, would not take effect if Issue 2 also passes (Article II, Division [B] [3]).

There is a problem of ambiguity in the last clause of Article II (B)(2)(a) that has caused the Cincinnati Enquirer to recommend that the proposal be rejected.  The ambiguity is reminiscent of that in the U.S. Constitution’s Article II, Section 1, regarding presidential succession.  In that case, direct action resolved the matter.  In the case of Issue 2, I think it likely that the courts would decide in favor of the intent of the authors of the proposal, but in any case it is insufficient to justify a “no” vote.

Clearly, this one will wind up in the courts. But, in any case, it’s a good idea. I’m planning to vote YES on Issue Two.

Issue 1:
This is another attempt to fix an ongoing problem with the way Ohio chooses its State legislature.
Currently, the boundaries of Ohio’s 99 State House of Representatives districts and 33 State Senate districts are decided every ten years (following the national census) by the Apportionment Board. The members of the Apportionment Board are the Governor, Secretary of State, and State Auditor, along with one General Assembly member from each of the two major parties. What this means, of course, is that whichever party controls at least two of the three Statewide offices on the Board gets to draw the legislative boundaries to their greatest advantage. Since the General Assembly determines the boundaries of U.S. House of Representatives districts, the Apportionment Board’s decision also determines who gets to draw Congressional districts, creating abominations such as the current House District Nine.

There have been several efforts in the past to remove apportionment from political control, but all have failed because of opposition from moneyed interests who preferred the current system. This time, there is actually general agreement. Issue 1 came out of the General Assembly with bipartisan support, and is supported by a range of organizations so diverse that it includes the Ohio Chamber of Commerce, the ACLU, the Ohio Manufacturers Association, and the Ohio AFL-CIO. Check out the supporting group’s website here.

Opposition to Issue 1 is so insignificant that the Ballot Board had to make up the argument against it because no one else would. The argument they came up with is that “gerrymandering is good because it leads to one-party control so the voters know who’s responsible for what happens in the legislature.”

The argument in favor was written by a bipartisan group of legislators – two Republicans and two Democrats – and it describes the benefits of the proposal thus:

FAIR – requiring that no plan be prepared to favor or disfavor any party, that counties and municipalities not be unnecessarily split up, and that the districts allow the legislature to fairly represent the number of votes received by each party so that the makeup of the General Assembly reflects the makeup of the voters.
BIPARTISAN –establishing a seven-member bipartisan commission, and stipulating that no ten-year plan can be enacted without support of at least one member of the minority party on the commission.
TRANSPARENT – requiring that all commission meetings be public and that they be broadcast, and that input from the public be sought and obtained before any plan is enacted.

Obviously, this proposal has deficiencies, such as that without buy-in from the minority party a plan can still be enacted (but only for two years, and maybe two years at a time for decades). However, there must be some mechanism for allowing districts to be delineated if a compromise cannot be reached, and that was the one they chose.
In addition, it does not address the formation of U.S. House districts directly, but since the General Assembly draws those districts lines, it does indirectly affect them because it is designed to create a more representative State legislature.
The plan proposed by Issue 1 is so much better than the existing system of apportionment that it is definitely worth passing it. It’s not as good as California’s Citizens Redistricting Commission that was established in 2012 by Proposition 11, but it’s a good start, and perhaps down the road we can use it as a springboard to establish a truly fair and non-partisan way of drawing district boundaries. I want to get going in that direction, so I will vote YES on Issue One.