by Simon Davis-CohenSeptember 25, 2018
Residents in Columbus and Toledo are being told they don’t have the authority to vote to protect their drinking water this November.
Markie Miller, an organizer from Toledo, Ohio, has been working for more than two years to pass a Lake Erie Bill of Rights amendment to the city’s charter. If passed, the law would recognize legal rights for the 9,900 square-mile body of water.
“We all live and work here and it’s where we want to raise our kids,” Miller tells The Progressive. “Of course we are going to defend living here and what that looks like. We have everything to lose.”
But Ohioans, like most Americans, are told they cannot challenge corporate personhood and are “preempted” by their state legislature from taking a slew of proactive actions.
“We want to revoke that idea of corporate personhood.”
“We want to revoke that idea of corporate personhood,” Miller says. “So if it comes down to the rights of an industry to pollute and the rights of the ecosystem to exist and flourish and evolve naturally, we would like people to see that the ecosystem’s rights should take priority above a company or industry’s right to operate—especially if what they’re doing is directly harming people and ecosystems.”
The charter amendment is a direct challenge to the supremacy of corporate personhood, says Miller, an organizer with the group Toledoans for Safe Water and the statewide Ohio Community Rights Network, which pushes similar laws across the state.
The Lake Erie Bill of Rights proposes a mechanism whereby local residents could sue corporate polluters on behalf of the law. It gives “residents of Toledo legal standing to sue on behalf of Lake Erie, it makes them trustees of the lake,” Miller explains. If passed, the law could feasibly be used by residents to protect the lake from new pipelines, water privatization, and polluting companies. The lake has recently suffered from large, toxic algae blooms, which are exacerbated by industrial farming practices and climate change.
The transformative law proposed by Toledoans for Safe Water was slated to appear on Toledo’s 2018 November municipal ballot. Petitioners gathered more than enough valid signatures and in early August began campaigning to get residents to vote “YES.” However, on August 28, at a special meeting of the Lucas County Board of Elections, things changed.
The Board of Elections’ attorney said the board can refuse to certify a ballot initiative if it thinks the measure is beyond the “constitutional power of the municipality.” In Ohio, as in many other states, municipalities have very few powers. They are told that they cannot challenge corporate personhood and are “preempted” by the state legislature from raising the minimum wage, restricting fracking, and controlling gun use, for example.
Local residents are seeing their authority to even vote on issues stripped away.
The board’s ruling represents a recent expansion of the conventional logic of state preemption. Beyond mere preemption that removes a municipality’s legal power over a subject, the logic used by the board takes this to the next level by, crucially, stripping local residents’ of the authority to even vote on the preempted subject. In mid-September, the Ohio Supreme Court sided with the board of elections in removing the ordinance from the November ballot.
Miller says she is aware of the many obstacles that stand in the community’s way of proactively protecting their drinking water and the Lake Erie ecosystem. She sees the Bill of Rights effort as proposing a new legal paradigm, with the goal of politicizing the issue and putting it to a vote.
According to the board of elections’ meeting minutes, board member Brenda Hill said, “If the city council and mayor had proposed this, it still would not be legal.” An unidentified speaker interjected: “No. It would be law [if the city council passed it]. It would be law. And someone would have to challenge it in court. That’s all we’re asking for,” according to the minutes.
Another added: “Put it on the ballot. Let us vote. Then you can challenge it.”
The four-person board was booed for its decision to prevent a vote. Members of the public heckled: “Do we not have rights?” “Who elected you?” (The board is appointed by the Ohio Secretary of State.)
Security was called.
“You’re taking away our right to vote on our initiatives,” someone yelled. “How do you justify the Board of Elections denying an election? You’re going against the very purpose that you exist for. I don’t know how you sleep at night. Go to hell,” according to the minutes.
A similar situation unfolded at another August Board of Elections meeting in Ohio’s Franklin County. Another group with the Ohio Community Rights Network, Columbus Community Bill of Rights, was seeking final ballot approval for their initiative to criminalize fossil fuel extraction in Columbus.
The same argument, that the proposed law exceeds the authority of the municipality, was used to strike it from the ballot. “We’re supposed to be able to participate in our democracy,” an onlooker yelled after the board voted to take it off the ballot. “Everything you have asked we have done,” the resident went on.
“Not another Flint, not another Flint, not another Flint! Let us vote, let us vote, let us vote!” residents chanted.
“How is it that these four unelected people can strip over 500,000 registered Columbus voters of their right to vote to protect their water?” Bill Lyons, with the group Columbus Community Bill of Rights asks. “We’re campaigning anyhow.”
Lawyers associated with the Community Environmental Legal Defense Fund filed urgent appeals to the Ohio Supreme Court calling on them to allow the votes in Toledo and Columbus to take place. They argued the county boards of elections are acting like judges by preventing votes and making decisions on the authorities of municipal governments. The appeals were denied.
Petitioners also argue that there is an inconsistency in how these boards are making decisions—a similar ordinance that takes on corporate personhood which proposes Rights of Nature in Youngstown, Ohio was allowed on the ballot and will be voted-on this November.
On the other side, the American Petroleum Institute, the Ohio Oil and Gas Association, Ohio Chamber of Commerce, and others filed a brief in support of the board of elections.
2018 is not the first year measures advanced by the Ohio Community Rights Network have faced obstacles. Since 2015, ten ballot initiatives proposed by groups in the Network have been removed from local Ohio ballots, despite all of them gathering the required number of signatures.
Nor is the phenomenon confined to Ohio. The argument that local residents should not be allowed to vote on issues if their state has “preempted” their local government on the issue was used to remove a proposed minimum wage ballot initiative in Kansas City, Missouri, for example.
Like Flint, democratic decisions over fresh water are being denied to local Ohio residents. Flint’s government was suspended by its governor and taken over by an unelected “emergency manager.” In Ohio, local communities are told they don’t have the authority to vote on fundamental questions of corporate power and oil and gas extraction.
“We want to put Toledo on the map for doing something groundbreaking,” Miller says. “But we understand that it’s not going to be easy, and it’s not just a Toledo issue, we want this to be seen as a model that can be used all over, in any shoreline community, on any body of water.”