Ohio Ballot Update: "It Generally Blows Up in Our Faces"

How Ohio’s GOP May Have Snatched Defeat from the Jaws of Victory

In a battle of legal wits in the Ohio legislature, I’d put my money on a man named Bill Seitz (a skilled lawyer from Cincinnati) over a man named Brian Stewart (the author of the infamous Issue 1 last August).

Any day.

And a few years ago, Republicans in the Ohio statehouse would’ve done the same. Because back then, members knew the difference between a good lawyer and a political hack.

But one of the results of gerrymandering is that today’s statehouse politicians live in an ever more sealed-off bubble where intelligence is not rewarded, or even recognized. To put it mildly, the cream does not often rise to the top in these unaccountable, lawless bodies.

So over the last week, the extremists in the Ohio Statehouse did the opposite of listening to the smart lawyer of their caucus. Instead, they listened to the not-so-smart lawyer. The hack.

Then, the Ohio Senate followed suit. As did Governor DeWine.

And through this sequence of trickle-up lunacy, as Rep. Seitz warned them, Ohio’s GOP likely snatched defeat out of the jaws off victory when it came to their quest to gut the ballot initiative process and stop the grassroots campaign to end gerrymandering in 2024.

Along the way, they also succeeded in embarrassing Ohio yet again—making the Buckeye State a national pariah, for the time being, by singling out and barring permanent and legal residents and green card holders from participating in political activities in Ohio in which they are allowed to participate in all other states. But, I predict, that won’t be the case for very long.

All of this would be laughable if Ohio weren’t failing so badly (we learned last week that we rank 43rd in the nation over the past five years in job creation) due to this same combination of incompetence, corruption and extremism shaping virtually every issue these statehouse politicians touch.

But I digress. Let’s look at the three stages that led to Ohio’s new law:

Step 1: No Emergency, No Emergency Clause

First, thank you!

The cynical gambit by Governor DeWine and the rest of the Ohio GOP, trying to fool Ohio and America that their frenzy last week was about putting Biden on the ballot, was called out so loudly and clearly by so many of you, that several important things happened along the way.

First, some terrible elements of the initial poison pills were stripped out—including the law to “fast track” appeals that would’ve undermined Ohioans’ ability to protect the reproductive freedom that we voted for last November. Other changes too. Good.

Still, they did manage to enact disturbing elements I’ll talk about below—including a new campaign law enforcement scheme that politicizes investigations and enforcement of ballot and other campaigns, and therefore chills participation (a favored tactic of their’s that echoes Jim Crow). Specifically, they placed enforcement in the hands of a highly political Attorney General (who demonstrated his unfitness to take on the role even as the shift was being debated) as opposed to a bipartisan ethics commission where it’s always been housed.

But because their cynical shenanigans became so evident, because the DNC resolved the Biden ballot issue on its own (ie. ending the “emergency”), and because so many of you made so much noise about the entire thing, there was not sufficient support in the House to declare the changes that were made to be “emergency” legislation.

And that, my friends, was a BIG win, because it means their odious law doesn’t kick in for 90 days (as opposed to immediately).

Which is important.

Because that gives ample time to prepare a federal lawsuit to stop this legislation from taking effect. And you’ll see why that matters when you read about one other thing these bozos did...

Step 2: They Ignored the Good Lawyer and Listened to the Bad One

Amid a lot of politicians whose bad judgment cost Ohio Republicans dearly last year, none fared worse than a guy named Brian Stewart, the author of the infamous Issue 1.

He’s apparently eager to extend his losing streak.

Because amid the frenzy to undermine ballot initiatives, Stewart decided that in addition to re-banning contributions from foreign nationals (already banned by federal law, and which Ohio Democrats have included in a broader anti-corruption bill for years), he’d throw in another group of people as well—legal permanent residents of the United States. “Green card” holders. And by extension, any groups they give to or with which their funds co-migle, any Americans with whom they share bank accounts, and so on.

Why throw them in the mix?

Because, our fearless leader explained, since such residents can’t vote, they also shouldn’t be able to participate in America’s democracy in other ways, including contributing funds:

Stewart even suggested the State needed to close this “loophole” to stop Joe Biden from fast-tracking green card applications of his favorite billionaires so that they could give money in time to boost their favorite Ohio causes.. I’m not joking—this was said on the floor of the Ohio House:

But here’s the problem for Mr. Stewart (beyond providing useful evidence that will undermine any defense of his actions in federal court).

Unlike foreign nationals, legal permanent residents/green card holders are allowed to participate in America’s democracy even if they can’t vote. You see, the Constitution provides rights to people living here even if they don’t have voting status yet. (Here’s a long memo from the American Bar Association explaining all this). And among the activity permanent legal residents have been able to participate in in every state, at every level, up until Mr. Stewart’s law here in Ohio, is contributing to federal campaigns and state campaigns of their choosing. So Mr. Stewart’s newly announced ban on that activity not only makes Ohio a new pariah in America, but also creates an Achilles heel for the law they just passed.

Why? Two clauses — one called the First Amendment, and one called the Fourteenth Amendment.

But his colleagues don’t need to listen to me about this problem. Their own colleague Bill Seitz warned them.

First, Mr. Seitz clarified that Mr. Stewart’s citation of a single case to support his position was…incomplete (Stewart literally misled his own colleagues about what the case said):

Then Seitz tried to translate the passage he’d just explained to the less astute members of his crew:

He then tried to explain what would happen if they took the Stewart road.

Once..

Then even more clearly here…

He even tried to explain to them that federal judges would have a say on their law:

Judges….you know, like the federal judge in Florida who last year struck down a provision banning green card holders and foreign nationals from registering voters as a violation of both the First and Fourteenth Amendments. (I do disagree with Seitz suggesting here that it’s “liberal” judges they need to worry about—I think this bill will offend judges of all persuasion; as he did with Issue 1, Stewart will once again unite a broad cross section of otherwise diverse views).

And what did Seitz’s gerrymandered colleagues do in response to all his clear warnings? They ignored him.

Instead, they sided with their colleague who advanced the unsupported principle that since they can’t vote, green card holders should also lose other Constitutional rights, and the absurd claim that unless they acted, Joe Biden was going to otherwise fast-track green card applications of his favorite billionaires.

And yes, the Ohio Senate went along with Stewart’s logic, as did Governor DeWine, who signed the bill yesterday.

Win 3: The State’s Lawyer Acted Like a Hack As Well

So, you may be asking….who is the actual lawyer for this crew, providing the legal analysis (as Seitz tried to do) to help steer them away from the legal cliffs they just plunged over, and from losing and costly lawsuits?

True to form, that man—Attorney General Dave Yost—wasn’t acting as a lawyer in recent days either. Like Stewart, he too was playing the role of political hack, and confirming exactly why he’s not the person who should be policing and investigating ballot campaigns in the first place.

Rather than providing wise counsel amid the lawmaking process, he began by advancing the ruse that this was about the Biden-ballot fix and “foreign money”:

Then he politicized it further by attacking Democrats for calling out the truth.

And then he even attacked former Chief Justice O’Connor, who is leading the campaign to end gerrymandering that the GOP is so concerned about, and which Yost will have enforcement powers over (see the problem now?):

Amid all his politicking, what did the state’s chief law officer not do, apparently?

Advise his clients, as Seitz did, that singling out legal permanent residents and banning their participation in core, protected political activity invites a costly and losing legal battle.

He also didn’t counsel them that if they plan to strip a group of people (permanent legal residents) of core First Amendment rights, and treat them differently from all others (Fourteenth Amendment), you can only do so if you are serving a compelling government interest. Mr. Stewart’s two offered reasons—1) bad law (“well, since they don’t have voting rights, they shouldn’t have other rights either” and 2) the Biden green card “fast track” theory—are nowhere close to sufficient. His saying those on the record devastates their case.

These people needed a good lawyer; they ignored one, and the other was as eager to push through the bad law as they were.

Consequences:

So what’s the state of things now, and going forward?

At the moment, Ohio is a pariah.

We are the only state in America that forbids permanent legal residents/green card holders to contribute to issue or candidate campaigns. Among other things, this means that PACs all across America which have even a penny of such dollars in their coffers (which many will have, since it’s perfectly legal) will be breaking Ohio law if they participate in Ohio. Good luck sorting through that mess, fellas.

But I predict that sometime in the next 90 days, this law will be challenged in court. And while I don’t often make legal predictions based on the overall uncertainty in our judiciary, I believe this law offends such a wide range of principles that it will not survive scrutiny in its present form. And some of the best evidence that can be used to sink it will be the inane statements from Mr. Stewart above.

What Do We Do?

In the meantime, what do we do?

Simple: know that the reason for all the chaos and disinformation and lunacy in Columbus last week is….fear.

Desperation and fear.

The right-wingers who run Ohio are still reeling from the losses of three ballot issues last year. Three routs, which angered them and which scared them.

And given that losing streak, they are even more scared of the effort this year to end gerrymandering. Nothing threatens them more. And they are absolutely panicked about it.

The end to gerrymandering would end the extremist hold on power.

But the last week also reveals that they know that Ohioans want to end gerrymandering. Just like they knew Ohioans wanted to protect reproductive freedom last year.

In particular, they know that the call to fire politicians and replace them with citizens is an incredibly compelling one. They have no good-faith arguments to counter this on the merits.

So the only way they can succeed is to 1) dramatically change the subject entirely, by spinning up conspiracy theories about foreign influence and investigations and scandals (look for those on your TV screens this fall), and 2) obstruct the campaign itself, by initiating investigations and chilling participation. These tactics are all they’ve got, because they know a straight-up debate on ending gerrymandering is one they are certain to lose.

So what does that tell us?

To keep going!

They are desperate because we are on the right track in ending their corrupt reign.

We are close, we have the right message, and they are on the ropes.

Let their desperation inspire us to stay on offense. To accelerate on offense.

We’ve got them on the run.

So double down!

Citizens, not politicians!!