On ballot, 'no' means 'no' for Senate Bill 5

8/4/2011

COLUMBUS -- When voters go to the polls on Nov. 8 to give a thumbs up or down on Ohio's new law limiting collective bargaining by government workers, a vote of "yes" will mean "yes" and "no" will mean "no."

The five-member Ohio Ballot Board resisted an attempt by supporters of Senate Bill 5 to turn the voter referendum on its head so a "yes" vote would register rejection of a law that filled the Statehouse and its grounds with thousands of protestors last spring.

"Don't you see that as confusing to voters when 'yes' is a negative and 'no' is an affirmative?" asked Mark Griffin, a newly appointed Democrat on the board.

With conventional wisdom suggesting that it's easier to get a "no" vote on a ballot issue, particularly when an issue is complicated or confusing, both sides jockeyed for the negative ballot position. Both accused the other of trying to "flip" the question to confuse voters.

Those trying to salvage the law argued that We Are Ohio, a coalition of labor, Democratic, and other groups, constantly framed the issue as a "repeal" of the law when they spent more than $4 million to collect signatures to get the question on the ballot.

"Hasn't your organization essentially created voter confusion if you get the language you're asking for?" Keith Fabor (R., Celina), a ballot board member and strong supporter of Senate Bill 5, asked an attorney for We Are Ohio.

"You've effectively argued for rejection, and now you're coming to this ballot board and asking to switch the language around so a 'no' means 'yes,' " he said.

But former Ohio Supreme Court Justice Andy Douglas argued that framing a "referendum" on a law as a "repeal" would not only be unconstitutional but would go against a century of precedent. The former executive director of the Ohio Civil Service Employees Union represented the Cleveland Police Patrolman's Association and the Ohio Patrolman's Benevolent Association in his appearance before the ballot board.

"The General Assembly approved Senate Bill 5," he said. "If you approve of the law, vote 'yes.' If you do not approve of the law, vote 'no.' Nothing could be simpler."

Donald Brey, attorney for the pro-Senate Bill 5 group Building a Better Ohio, agreed a referendum vote in which a "no" vote would have the effect of upholding the law would be unprecedented. But he said it was the board's duty to frame the question in a way to reduce voter confusion.

"They've already framed the issue," he said. "They've spent millions and millions of dollars communicating, educating …"

Among numerous other provisions, Senate Bill 5 would prohibit all public employees from striking, restrict what they can discuss at the bargaining table, eliminate the automatic deduction of "fair share" fees from the paychecks of workers who refuse to join a union, and prohibits local governments from picking up any portion of an employee's share of his pension contributions.

A Quinnipiac Poll released late last month suggested that 56 percent of registered voters are inclined to vote against the law. Opposition jumped to 67 percent when the question was framed as restricting collective bargaining "rights" of government workers. The final ballot question does not include that word.

The same poll suggested that voters like some portions of the law. There was no attempt, however, to try to the break the issue into multiple questions in hopes some portions would survive.

Building a Better Ohio's effort to save the law picked up a major endorsement Wednesday from the Ohio Chamber of Commerce.

The ballot board, chaired by Republican Secretary of State Jon Husted, also framed the language for Issue 3, the proposed constitutional amendment designed to allow Ohioans to reject mandates under President Obama's signature law that all Ohioans acquire health insurance or potentially face penalties.

Don McTigue, attorney for opponents of the law, argued against using words such as "freedom" and "choose" in the health-care amendment title, suggesting Ohioans might be more likely to support something containing those words.

But Maurice Thompson, attorney for The Ohio Project that gathered signatures for the ballot issue, countered that the language mirrors what is contained in the proposed amendment.

Although the board heard debate over the title of the issue, that decision ultimately lies with Mr. Husted. He has until Aug. 30 to place a title on the ballot language the board adopted Wednesday.

There was no controversy over the language of Issue 3, a constitutional amendment proposed by lawmakers that would raise the maximum age at which a judge may assume the bench from 70 to 75.

Contact Jim Provance at: jprovance@theblade.com, or 614-221-0496.