Lots of people are deeply disappointed here on DKos about RON's failure. Blame is being assigned to the Ohio Democratic party for not openly supporting the ballot measures (or certain Democratic officials
for opposing them), to SoS Ken Blackwell (R) for tampering with the election to position himself for next year's gubernatorial race, to Diebold for the new electronic voting equipment, to the out-of-state group Ohio First, etc. etc.
ad nauseam. In fact, blame is being assigned everywhere but where it belongs:
the issues themselves.
Any criticism of the ballot initiatives as poorly written gets derided as a "right wing talking point," but just because the right wing points something out doesn't automatically make it untrue.
Now that you think I'm a troll, read more to see why I'm not.
I genuinely wanted to support RON, but after reading the ballot language I knew I could not in good conscience do so. Why not? That can be squarely laid at the feet of the proposed Constitutional Amendments' targeting and shoddy language -- all 2,134 words of it. In the main, these proposals simply had no business being written into the permanent charter of the state.
I most certainly don't think that the problems which RON was meant to address are trivial, nor do I think matters should stand as they currently do. Far from it. However, if these problems are to be addressed at all, they should be addressed in the most efficient and targeted manner possible with concise, plain and unequivocal language that the average voter can clearly and quickly understand. RON failed on almost all counts. As soon as you start talking about Constitutional Amendments, you've opened Pandora's box.
So how can reform be enacted? Take a page from the anti-choice playbook and focus on results, rather than methods. IANAL, but it seems to me that the goals of RON can be effectively met by laying out more narrowly targeted ballot issues that are easily grasped. Here are my suggestions:
- RON ISSUE 2 was an attempt to set up a vote-by-mail system in Ohio (even though the Oregon model is superior IMO), mainly by overriding the existing absentee ballot system. It attempted to adopt a new Section to Article XVII of Ohio's Constitution rather than amending §3509 of the Ohio Revised Code (where such issues more properly belong), and raised the possibility of double voting. Frankly, it was ham-handed and incorrectly targeted. Fixing this one is easy:
To amend Sections 3509.02 and 3509.03 of the Ohio Revised Code.
In order to expand to all electors the choice to vote by Absent Voter's Ballot in all elections, this amendment shall, if adopted:
- In §3509.02 of the Revised Code, replace division (A)(1-8) with the text, "Any qualified elector, as defined in §3503 of the Revised Code, shall be entitled during the thirty-five days prior to an election to receive and to cast an Absent Voter's Ballot, as specified by §3509.01 of the Revised Code."
- In §3509.03 of the Revised Code, remove the text ", and the reason for the person's absence from the polls on election day" from paragraph one, sentence three.
Concise, targeted -- and exactly the same result as RON 2.
- RON ISSUE 3 was a campaign finance law, intended to alter the electoral influence of PAC funding on Ohio elections. Great idea, but it doesn't belong in the state Constitution at all. It instead belongs in the Ohio Administrative Code's Chapter 111 (which governs the Secretary of State), under the aegis of §3517 and §3599 of the Ohio Revised Code. Even so, I supported this one with some reservations. Two of the major failings of Issue 3 were the lack of a cap on total PAC donations, and the specific inclusion of labor unions within the statutory language. As soon as you mention unions, you guarantee vigorous opposition from the anti-worker camp. In order to remove as many objections as possible before submitting the proposal to a vote, the proposal should be drafted in such a manner that labor unions are included, but not by name. Regardless of the wisdom of creating a new class of PAC (which I will not address), the language should read:
Permit nonprofit unincorporated membership organizations to contribute funds from regular membership dues paid by the organization's individual members to a small donor action committee. The small donor action committee is not required to report the names of individuals who contribute in this fashion.
If a union is an incorporated entity, it's ruled out -- period. This also allows for differences of conscience within the union membership itself; unions are hardly monoliths. Not all union shop members will necessarily agree with their union's political choices and they should not be required to subsidize them: "...to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical..."
The monetary limits provided for in RON 3 seem reasonable, but there was a loophole big enough to drive a Hummer through: there was no cap on total PAC donations. This is a point which can be hashed out via a debate of proponents, in order to reach a consensus opinion. Further, there was a problem with self-financed candidates: based on the plain language of RON, a wealthy candidate could spend as much as he or she liked, while his or her opponent would be limited to existing statutory caps:
Provide for no limits on a candidate's capacity to spend his or her own money in connection with his or her own campaign, and have the effect of repealing existing law allowing an opponent to be exempt from contribution limits.
Read that provision very carefully, because it doesn't say what it seems to say. The simple addition of ", and" would likely bring this section into alignment with its apparent intent. Compare this to the actual RON 3 wording above: "...of repealing existing law, and allowing an opponent..." The lack of that comma and conjunction made that provision of RON 3 mean the opposite of its intent. In any event, it doesn't belong in the state Constitution -- it belongs in the Ohio Administrative Code's Chapter 111, where PACs are defined and regulated.
- RON ISSUE 4 was the big kahuna -- redistricting. This one could go either in its proposed place in the Ohio Constitution, or as part of Ohio Revised Code §3521.01 (A). Without a detailed analysis of statistics, maps and statewide electoral histories, I can't really address the mathematical formula it laid out:
Where N = "Competetiveness number," X = "Balanced districts," Y = "Unbalanced districts" and Z = "Other remaining competitive districts" then (2X + Z) - 2Y = N
This might well be an excellent method of apportioning voting districts, but there were problems with RON 4 beyond the math. The biggest one was the ostensibly nonpartisan, judicially appointed 5-member commission it created. It sounds like a good idea until you realize that there were no minimum qualifications listed for appointment to this commission, no confirmation process and no mechanism for removal of any member for cause (whatever that might be). Since Ohio is a state which elects its judges, there was nothing to say that a campaign contributor (think Tom Noe) couldn't be appointed to the commission for some undefined length of time (the term of office was not clearly delineated).
Another major problem was the simple fact that the definition of "balanced" and "unbalanced" districts was subjective at best, nonexistent at worst. Is a 60/40 partisan split considered "balanced" or "unbalanced?" What about 55/45? Where do independents and third-party voters factor into the equation, if at all? Absent a meaningful definition of "balance," RON 4's math is flawed.
Finally, what happens when you end up with some gerrymandered map that nobody likes? Take it to the Ohio Supreme Court? Not so fast:
Provide that the supreme court of Ohio has exclusive original jurisdiction involving redistricting plans adopted under the amendment, but limits such jurisdiction to ordering the commission to perform duties required under the amendment and prohibit the court from revising or adopting a plan.
There is virtually no judicial review provided for within the body of RON 4, and what little does exist is limited to sending the commission back to the drawing board. While I don't think that some of the worst-case mapping scenarios are likely, they are certainly possible. Fix the commission and the definitions, and I'm perfectly willing to give the formula a try -- it can't be much worse than what Ohio is already stuck with. Leave those problems as-is, and people are inclined to stick with the devil they know rather than the devil they don't.
- RON ISSUE 5 was the "no more Katherine Harrises/Ken Blackwells" amendment. This was the only one I supported with very minor reservations, because the people who judge the vote shouldn't be running partisan campaigns. That's a no-brainer. There was another appointed commission involved and its term seemed rather long, but it seems to me that the commission itself is unnecessary. Instead of taking the SoS out of the election process (which is a huge part of the job, after all), instead take the SoS out of the political process, in a fashion similar to the American Bar Association's model code of judicial conduct:
CANON 2
A JUDGE SHALL AVOID IMPROPRIETY AND THE APPEARANCE OF IMPROPRIETY IN ALL OF THE JUDGE'S ACTIVITIES
B. A judge shall not allow family, social, political or other relationships to influence the judge's judicial conduct or judgment. A judge shall not lend the prestige of judicial office to advance the private interests of the judge or others; nor shall a judge convey or permit others to convey the impression that they are in a special position to influence the judge. A judge shall not testify voluntarily as a character witness.
CANON 4
A JUDGE SHALL SO CONDUCT THE JUDGE'S EXTRA-JUDICIAL ACTIVITIES AS TO MINIMIZE THE RISK OF CONFLICT WITH JUDICIAL OBLIGATIONS
A. Extra-judicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities so that they do not:
(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;
C. Governmental, Civic or Charitable Activities.
(3) A judge may serve as an officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law,* the legal system or the administration of justice or of an educational, religious, charitable, fraternal or civic organization not conducted for profit, subject to the following limitations and the other requirements of this Code.
(a) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization
(i) will be engaged in proceedings that would ordinarily come before the judge, or
CANON 5
A JUDGE OR JUDICIAL CANDIDATE SHALL REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY
(Whole section applies)
Obviously, this would need to be adapted to the specifics of the Secretary of State's duties, but the principles it puts forward are precisely what is intended, no? Like RON 3, a similar provision to the above belongs in the Ohio Administrative Code, section 111. A nine-year term for an unelected commission is unnecessary, when the problem can be approached from another angle entirely.
RON isn't necessarily dead, but it definitely needs to go back to the drawing board so that it's done right. If at first you don't succeed...
(Adapted crosspost from my site)