Election Day is one week away. One of the measures on the ballot, Issue 2 – also known as the “anti-monopoly” amendment will get an up or down vote. Though some experts say if the statewide measure passes, it might be only the beginning of a long legal battle.
To understand the motivation behind Issue 2, we have to jump ahead to State Issue 3. This Constitutional Amendment would legalize marijuana and give growing rights at 10 sites around the state exclusively to investors who are paying for the legalization campaign. That’s a monopoly according to the Secretary of State, who determines the wording that appears on the ballot. And Issue 2 – the “anti-monopoly” amendment is meant to stop Issue 3.
“Issue 2 is really an opportunity to raise the bar for an economic monopoly to be enshrined in the constitution,” Republican State Rep. Ryan Smith said.
Smith co-sponsored the proposal and says it’s to protect citizens from people who try to manipulate the state’s constitution for financial gain. The measure would prevent the marijuana initiative from taking effect if enacted. It also sets up a two-step hurdle for any proposed constitutional amendment in the future that could create a monopoly. Smith says it would require Ohio voters to approve two ballot questions.
“So they would have to vote to, ah, 'yes' I’m okay with a monopoly going into the Ohio Constitution, economic monopoly," Smith said. "Two, would be 'yes' on the issue itself. So you have to get two 'yes'es in order to get it passed, which certainly raises the bar.”
But opponents of Issue 2 worry it raises the bar too high. Both the ACLU and the liberal-leaning group Common Cause say it could make citizen-initiated ballot measures much more difficult to pass.
"It makes it a 2-step review process which is very costly," ACLU Ohio Executive Director Christine Link said. "Which, ironically, means it will cost even more money for anyone to get onto the ballot. It’s ironic that Issue 2 has been developed by politicians who had no problem putting casinos into the Constitution. Suddenly on this issue they’re concerned about monopolies.”
Ian James isn’t a fan either. He’s the founder of ResponsibleOhio – the group that put the marijuana initiative on the ballot. He disagrees that Issue 3 creates a monopoly and points out that after 4 years, the measure allows an additional growing site if the first 10 can’t meet consumer demand. ResponsibleOhio has already sunk $15 million into campaigning for legalization.
“We actually figure we’re going to spend about $23.5 to $25 million before it’s all done," James said. "Issue 2 is on a slow glider path down to defeat.”
Not according to Ryan Claasen. He’s a Kent State political science professor who surveyed public opinion on Issues 2 and 3 earlier this month.
“And we found that majorities plan to vote for both issues, among registered voters at that time,” he said.
More specifically, 54 percent planned to support Issue 2, and 56 percent planned to vote for Issue 3.
So if both issues win with voters, which one takes effect? Claasen says according to the Ohio Constitution it depends on how a constitutional amendment got on the ballot in the first place.
“In terms of Issue 2 and 3, Issue 2 would become law first. Because if a legislature puts something on the ballot it becomes law immediately when it’s passed," Claasen said. "If citizens put something on a ballot, it becomes law about 30 days after it’s passed.”
Meanwhile, constitutional law expert Professor Daniel Tokaji of the Ohio State University says it doesn’t matter whether the measure comes from the legislature or the people. According to the Ohio Constitution, the measure that wins the most votes takes precedence.
“And if it was otherwise, if the legislature always held the trump card, well that would effectively give the legislature the opportunity to trump direct democracy,” Tokaji said.
So that’s two answers from the same Ohio Constitution. There’s debate aplenty, but James, Smith, Claasen, and Tokaji all agree as to the likeliest outcome: if Issue 2 passes, litigation will soon follow - especially if Issue 3 is also approved.