Back To The Drawing Board For Issue 3: The Ohio Supreme Court Sides With ResponsibleOhio Over Misleading Ballot Language

In the never ending saga between politicians, citizens for marijuana reform, and citizens for marijuana reform but against ResponsibleOhio marijuana reform; Buddie the Marijuana Mascot took one home for some of the marijuana reformers by getting a writ of mandamus to order the Ballot Board to rewrite parts of the Issue 3 Ballot Language.

The events leading up to this decision start with ResponsibleOhio obtaining the required amount of signatures to ask Ohio voters to vote on a proposed constitutional amendment to Article XV of the Ohio Constitution.  Specifically, the drafters of the proposed constitutional amendment are asking the voters to vote in favor of the legalization, regulation and taxation of medical and personal use of marijuana.

After ResponsibleOhio obtained the required signatures, the Ballot Board voted to adopt ballot language for Issue 3.  Soon after, Ohio Secretary of State John Husted issued the ballot title.  Issue 3’s full title is “Issue 3, Grants a monopoly for the commercial production and sale of marijuana for recreational and medicinal purposes; Proposed Constitutional Amendment; Proposed by Initiative Petition; To add Section 12 of Article XV of the Constitution of the State of Ohio.”

The Issue 3 ballot language was adopted on August 18, 2015 and on August 25, 2015, the full title of the ballot measure was adopted.

Obviously not too happy with the title and the ballot language, ResponsibleOhio commenced a writ of mandamus on August 27, 2015.  A writ of mandamus for all you non-legal types just means a superior court can order an inferior court or public office to do a specific act.  In this case, ResponsibleOhio wants the court to order the Ballot Board to rewrite the ballot language and title.

The Ohio Supreme Court granted ResponsibleOhio’s writ of mandamus in part and denied in part. see State ex re. ResponsibleOhio v. Ohio Ballot Board, 2015-Ohio-3758.  The Court granted writ to four specific paragraphs on the ballot language, but denied the writ as it related to the full title for Issue 3.

First Problem: Prohibit vs Permit

The proposed constitutional amendment by the ResponsibleOhio  prohibits marijuana establishments within 1,000 feet of a house of worship, public library, public or chartered elementary or secondary school, state-licensed day-care center, or public playground, subject to a grandfather clause.

The ballot language, however, replaces prohibit with permit in the ballot language.  Specifically, “The proposed amendment would: Permits marijuana growing, cultivation and extraction facilities, product manufacturing facilities, retail marijuana stores and not-for-profit medical marijuana dispensaries to be within 1,000 feet of a house of worship….”

I got a laugh out of this one.  For one, I doubt that those evil pot smokers made plans to be as close as possible to churches and schools as the ballot language would suggest.  I am sure that Cheech and Chong planned on opening their marijuana shop exactly 1,001 feet away from a church or school.

Second Problem:  Missing Critical Facts Concerning Retail Establishments

The ballot itself does contain much language when it comes to the retail sale of marijuana and marijuana infused products section of the proposed constitutional amendment.

The ballot states, “The proposed amendment would: Permit retail sale of recreational marijuana at approximately 1,100 locations statewide.”  And that pretty much sums up the retail aspect of the ballot language.  The Court found this to be misleading because the ballot language omitted two critical facts concerning retail establishments selling marijuana and marijuana-infused products.

The two critical omitted facts include: (1) that such retail establishments must have a state license and (2) that a license may be obtained only if the electors of the precinct where the store will be located approve the use of the location for such purpose at a local option election.  Meaning local residents can veto the operation of such a business in their neighborhood.

I think this problem ties in very well with the first problem of prohibit vs permit when it comes to location.  So, even if Cheech and Chong setup shop 1,001 feet away from a school, the local residents can veto that operation.  That tidbit of information would make a voter a better informed voter.

Third Problem:  Growing And Transporting Marijuana For All Persons 21 Years Of Age Or Older

Once again those pesky Ballot Board members are adding language not actually in the proposed constitutional amendment.  The ballot language states that each person, 21 years of age or older, to purchase, grow, possess, use, transport and share over one-half pound of marijuana or its equivalent in marijuana-infused products at a time, plus 4 homegrown, flowering marijuana plants.

Well….not really.  The ballot forgot to mention that under the proposed constitutional amendment that a user, 21 years of age or older, can grow up to eight ounces of marijuana plus four flowering plants only if they have obtained a valid state license.  Oh….and even those persons cannot transport the marijuana.

It is almost like the Ballot Board is going out of its way to mislead the public.

Fourth Problem:  Adding Another Marijuana Growth, Cultivation, And Extraction Facility In Four Years

Part of the proposed constitutional amendment is to have ten marijuana growth, cultivation, and extraction facilities in ten pre-designated counties.  The ballot language lists the ten pre-designated counties and goes on to say that one additional location may be allowed for in four years.

Well this is somewhat true, but the language omits that this extra facility in four years can open only if existing facilities cannot meet consumer demand.

Based on these four problems, the Court found that the Ballot Board’s ballot language inaccurately states pertinent information and omits essential information.  The Court went on to say that the cumulative effect of these defects in the ballot language is fatal because the ballot language fails to properly identify the substance of the amendment, a failure that misleads voters.

Regardless of whether you are for or against the marijuana amendment, the blatant misleading ballot language created by the Ballot Board is unconscionable.  Voters have the right to be properly informed without political agendas getting in the way of their vote.

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