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Across the U.S., Courts are Keeping Voter Initiatives Off Local Ballots

by Simon Davis-Cohen

April 24, 2018

frack free sign.jpg

Frackfree Mahoning

Youngstown, Ohio residents gathered enough signatures to place a “Drinking Water Protection Bill of Rights” on a ballot, but the Mahoning Valley Board of Elections is refusing to include it in the May 2018 elections.

Hattie Wilkins has been working to pass a local ballot initiative to ban the fracking industry and protect drinking water in Youngstown, Ohio.

Wilkins, a retired union president at a Youngstown pillow factory, is part of a group of residents who have, since 2013, placed six initiatives on the city’s ballot to protect city water and assert municipal control over frack-waste injection wells. The one in November 2016 failed 10,164 to 12,443 votes. Undaunted, the group, Frackfree Mahoning Valley, gathered enough signatures to get two initiatives on the November 2017 ballot.

That year, the group proposed a ban on fracking and underground frack waste injection wells that would have allowed private citizens to take legal action against violators and another to regulate political campaign contributions, restricting the right to donate to city residents.

But in 2017, for the first time, the Ohio Supreme Court effectively removed their initiatives from the ballot—no votes were cast.

This year, for the May 2018 ballot, Frackfree Mahoning Valley again took to the streets to qualify yet another initiative. The group proposed a “Youngstown Drinking Water Protection Bill of Rights” that would ban oil and gas wells and waste injection, allow the city to prosecute violations, and mandate that surplus water revenue be spent on improving the city’s water and sewer infrastructure. (In March, the city of Youngstown was forced to repay water customers $4 million, $28 each, after it was found the city had illegally spent surplus water funds.)

Shortly after Wilkens and her fellow petitioners submitted signatures for the Drinking Water Protection Bill of Rights, the Mahoning Valley Board of Elections refused to place it on the May 2018 ballot.

“We had enough ballot signatures and the board of elections decided not to put it on, and that’s not right,” says Wilkens.

As it did last year, the board referred to a 2016 law (HB463) that allows it to remove a initiative deemed beyond the city’s “scope of authority.” It argued that proposed language to hold violators liable and a provision to grant ecosystems new legal protections are outside the city’s power. The initiative is also a direct challenge to the Ohio Assembly’s claim of total control over oil and gas.

It is not just Youngstown. Since 2015, the Ohio secretary of state, appointed county boards of elections, and the Ohio Supreme Court have removed a total of ten proposed fracking-related county charters from local Ohio ballots.

And this phenomenon is happening all over the country: Initiatives that garner enough signatures for a spot on the ballot are being removed by the courts.

In 2015, a county presiding judge removed a initiative to raise the minimum wage in Kansas City, Missouri. In 2016, a similar initiative was taken off Minneapolis’s ballot, along with a proposed ordinance to require police officers to carry personal professional liability insurance. Also in 2016, an initiative in Tacoma, Washington, to require all city and corporate projects using at least 1 million gallons of water per day be put to a public vote never saw the light of election day.Other local initiatives facing obstruction in 2018 include a proposed ban on AirBnB in Palm Springs, Florida, and another barring the timber industry from spraying aerial pesticides in Lane County, Oregon.

A 2017 Florida law has given local officials the power to postpone initiatives until the next local city election. This means a vote on the initiative in Palm Springs, Florida, to limit short-term rentals (like AirBnB) will likely be delayed from June 2018 to November 2019.

In Lane County, a local judge has applied a restrictive standard to remove the aerial pesticide spray ban from this May’s ballot. This was after the petitioners spent years attempting to meet two other requirements. After they did, another requirement was proposed—perhaps for fear that Lane voters would follow those in Lincoln County, Oregon, who approved another ban on aerial pesticide spraying in May 2017.

Ann Kneeland, the lawyer for the Lane County petitioners, says focusing on all the pre-election hoops misses the forest for the trees. “None of these requirements are legal, pre-election,” she tells The Progressive.

The courts, Kneeland says, should let people vote and only judge laws once they are passed. The legislative powers of the people, she argues, are supposed to be equal to the state legislature’s. And sitting state legislators get to vote on laws before they are interpreted by courts.

Back in Ohio, this year’s drinking water initiative is now pending before the Ohio Supreme Court. Petitioners are hopeful that a 2017 Ohio Supreme Court ruling that indicated HB463 might only apply to countywide charter amendments, and not municipal initiatives like Youngstown’s, will be reiterated and the initiative placed on the ballot.

In legal briefs, Youngstown residents seeking to vote on the water protection ordinance say courts lack the authority to review proposed laws.

They also argue the pre-election maneuvering undermines local residents’ democratic rights. Referring to laws the Ohio Assembly has passed that strip local governments of their authority, they warn, “as the legislature continues to pass laws that preempt local law making on issue after issue the ultimate end result will be to strip the people of their constitutional right [to direct democracy], issue by issue.”

As Youngstown’s initiative awaits judgement by the Ohio Supreme Court, Wilkens continues to refuse to drink the city’s tap water. Citywide notices about contaminants in the water are regularly mailed out and, Wilkens says, in some parts of town, the water stinks.

Simon Davis-Cohen is editor of the Ear to the Ground newsletter, an exclusive “civic intelligence” service that mines local newspapers and state legislatures from across the country.


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