substantive and review ballot initiatives in the state of ohio about one hundred and twenty five years ago voters who saw themselves as disenfranchised by representative government began to advocate for the use of initiated measures an alternative means of making law they wanted to take back control of government married citizens from the hands of the elites and improve government by making it more responsive to the will of people and less corrupt during the ohio constitutional referendum efforts the states may control or regulate a process they cannot however here are control regulate the content of the speech that is implicated in have constitutional authority to rule matters off the ballot under the guise of simply reviewing initiatives to see that they conform with pertinent constitution or sister section legal opinion or constitutionality and challengers with then come before this court mandamus and the question would be one of the secretary abused his discretion to use discretion is more than an error vlaar judgment it not an adequate remedy it is possible for the ohio supreme court to have an opinion that a proposed measure would be constitutional but would have to uphold in the end damus a case where election official interests of the the shut case it's usually this one pair in the court decided it didn't the court was not asked to uphold the validity of the secretary of state's veto power or a board of elections veto power over the measures that schmidt taste basically help the state's power to regulation decriminalization of marijuana possession and usage were actually administrative because they were ordering municipal officials or children's officials to not enforce s arguing and believe very firmly that the state may not administer its a lections in such a way as to use an executive branch veto power executive branch being s state and through the eighty eight county boards of elections as i say the problem that has been generated by house votes were sixty three is that the  high supreme court does not have direct review authority because the courts only act after enact the court's only act on something that has been legislate a city charter county charter to say that only white men in a county can all land you're saying that there's a that those innovators a fourteen st moment a th member right to have that initiative placed on the ballot if they've otherwise required comply with all their criteria and there's no ability for state officials say wait that's violently unconstitutional and we're not going to place on the ballot the reason a mature dancer gesture i pointed out that in that has only the constitutional parts into you know the wild and constitutional parts i just really struggling to see what the basis of our constitutional claim as we held in the earlier case that these restrictions really don't act as a prior restraint on speech well talking about separation powers problem what the general assembly did when it in acted before sixty three and critics in centrally in secret and the lame duck session of the legislature was that it that the matter could be certified out actually gave local elections officials were unaccountable not elected the power to strike things from the ballot based on their subjective perception of whether or not it would be saying that if this case were before the ohio supreme court in the ohio supreme court said this is this is fine  a federal constitutional question for review by the united states supreme court and that decision that this is doesn't violate separation of powers under ohio law federal constitution and nd the state law famous bar by sovereign immunity i think it's clear that schmidt governs this case and so my friend raised a few arguments to try to distinguish this case from schmidt and it's to those arguments  friend says that the boards of election are they don't have the authority to screen out these ballot initiatives but as a district court help that claim is a state law and bar the plaintiffs alleged the boards of election are violating the ohio constitution by enforcing the state statutes in other words they're asking the federal court to enjoin state officials from violating state law under pen hearst's that claim is barred by sovereign immunity in terms of whether there's a federal separation of powers issue that can be applied at the state level i think the answer is no judge white and i can't point to any case contradicting that position separation of powers works at the horizontal level at the federal government and it works the vet vertical level between national government and the state it doesn't go one step down to the end separation of powers of the local governments and so to that claim the plaintiff's arguments fail my friend also suggests that this case is different from schmidt because they're challenging few reasons st screening process is not content based on its face because the screening process applies to every initiative regardless of the subject matter or viewpoint plus it's not content based implicitly because you can justify the screening process that reference to the subject matter of any initiative for example the screening process advances the state's interest in avoiding overcrowded ballots and preserving voter confidence lastly the government doesn't exclude proposed initiatives because it disagrees with the subject matter no it excludes initiatives that are procedurally flawed and so this court which may help it's not content pace therefore it's not subject to strict scrutiny so all we have left is schmidt and this a fundamental right is deeply rooted in our nation's history and for those reasons don't let's just go back to the speech claim it may or may not it may be barred entirely so as one differences maybe there are some differences in this case with respect to these put forward the types of issues that were prohibited from being on the ballot but my hypothetical where a city comes forward with a group comes florida wants to put a initiative on the ballot that only white men can own land in the city  is that get rejected by the board of elections and also eleven things important here in the house print courts made this clear what the board of election are doing is they're not assessing the constitutional you proposed initiatives what they're doing is they're assessing does  fall within the initiative power of the legislative power so for example is it administrative is it legislative if it's administrative and it's excluded because it doesn't fall within the legislative out if it's legislated though and the board of elections should not entertain whether it's constitutional whether violates the th amendment the th or many you know it shouldn't be entertaining those questions it's truly a procedural conflict but it still is still has quite a bit of power it seems to me in the hands of these local election officials in the sense that making a decision decision between what's administrative what legislative especially bright line i'm not sure what test you want to give us or what the mystery versus legislative but let's give it a lot of discretion in the hands of people who aren't judges and you probably aren't lawyers nothing wrong with that but there are these are pretty subtle distinctions that have to be so what's what's the test they apply here how i can be certain that they're not well what's important to remember here is that there is a review after the boards of election determination as this court helmut schmidt essentially do no review and it can occur on an expedited basis so that's the answer that's why you safeguard against that discretion but more important your answer is the board of washington butcher this entirely and make and make  content based decisions under the guise of ministry versus legislative with the state courts cleaned up later that's the way the general assembly and activity yes that's what they envision but i want to address one point clearly the plaintiffs here are not challenging the legislative administrative distinction and here's what let's suppose for a nd that the plaintiffs prevail in this case and the court notifies the statutes as unconstitutional that legislative administrative distinction still stands because it derives not from the state statutes but from the ohio constitution specifically article two section three article time article two section one half an article ten section through so they're not challenging this legislative minister distinction they're specifically challenging the screening process really the fundamental problem with this case is a lot of the issues probably should have been brought to court because this court lacks st action to resolve matters so much the court has any further questions the district court identified the correct precedents apply to correctly and that's why the reasonably so given all those happened in the circuit the last week now to the extent there is any appetite for and on proceeding after today's proceedings the state is welcome to that proceeding but for purposes of this case schmidt is finding a result the matter and just to notify the in favor of no st amendment likeability it's the d c circuit th circuit eight th and nd circuit and in favor of applying st amendment anderson burke scrutiny it's the th circuit st circuit well actually they do something else and also  that has bottomed a severe burden excludes or virtually excludes electors or initiatives on the ballot we believe this is a severe written and that strict scrutiny is applicable but we believe that even if only intermediate scrutiny is the standard that's applied that for sixty three dollars must be broken we did attempt to bring many of these issues in state court and your hearts report repeatedly ducked the matter of determining the constitutionality of here on the ballot the st amendment protects political speech more than any other kind of speech but when the government prevents really qualified initiative from appearing on the ballot to political discussion and violates the community's right court's job here to decide what party it is not the courts jobs to decide what legislative actions are considered violence slated whether  legislature could propose to pass a bill the only way been can own property and the courts would wait until the bill became law before ruling on its constitutional invalidity same rule would apply and indeed in the higher constitution must apply to initiatives as the people's reserved legislative power looking at a pretty close law is necessarily content if it isn't merely  merely an act of restriction by a board of elections to throw something off the ballot after thousands of hours of volunteer time counting the pavement equipment it before the court trying to call a constitutional review procedural slate of hand the boards of elections are there to make sure the initiative dish informant signatures are proper that the petitions don't have invalid signatures but the state and county procedure primarily through signature gathering and the initiative powers did if the government gets to decide before the vote and other initiatives and even even the subject council what is your best what is your best case that this is a federal constitutional issue same the same principle that has that if they if there is an initiative process it is governed by the federal state constitutions regarding freeman speech in association gether with the provisions of sure he will protection of the wa wanted to have the word independent added to his name as a candidate on a molecular power and the th circuit found that one word was a very substantial the matter carefully