[Cite as State ex rel. Ohio Liberty Council v. Brunner, 125 Ohio St.3d 315, 2010-Ohio-1845.] 

THE STATE EX REL. OHIO LIBERTY COUNCIL ET AL. v. 

BRUNNER, SECY. OF STATE, ET AL. 

[Cite as State ex rel. Ohio Liberty Council v. Brunner, 

125 Ohio St.3d 315, 2010-Ohio-1845.] 

Elections — Ohio Ballot Board’s approval of a proposed constitutional 

amendment — Abuse-of-discretion standard — Writ granted. 

(No. 2010-0643 — Submitted April 27, 2010 — Decided April 29, 2010.) 

IN MANDAMUS. 

__________________ 

Per Curiam.

{¶ 1} This is an action for a writ of mandamus to compel respondents 

Secretary of State Jennifer Brunner and the Ohio Ballot Board to certify the 

board’s approval of a proposed constitutional amendment and to certify its 

approval to respondent Attorney General Richard Cordray. Because relators have 

established their entitlement to the requested extraordinary relief, we grant the 

writ. 

Facts 

{¶ 2} On March 21, 2010, the United States Congress enacted the Patient 

Protection and Affordable Care Act, which was signed into law by President 

Barack Obama on March 23. Pub.L.No. 111-148, 124 Stat. 119 (2010). Among 

other things, the act requires individuals to maintain minimum essential healthcare coverage beginning in 2014 and imposes a penalty for failure to maintain this 

coverage. Section 1501, Subtitle F, Part 1 of the Patient Protection and 

Affordable Care Act. 

{¶ 3} On March 22, relators gathered over 3,000 signatures to submit an 

initiative petition to amend the Ohio Constitution “to preserve the freedom of 
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Ohioans to choose their health care and health care coverage.” Relators are Ohio 

Liberty Council, a nonprofit corporation and political action committee that is a 

statewide coalition of 25 grassroots groups, including nearly all of Ohio’s Tea 

Party organizations; the Ohio Project, a ballot-issue committee; and five Ohio 

Liberty Council members who are state electors. 

{¶ 4} On April 1, pursuant to R.C. 3519.01(A), the attorney general 

certified that relators’ summary of their proposed amendment contained “a fair 

and truthful statement of the proposed constitutional amendment” and then 

forwarded the proposed amendment to the secretary of state, in her capacity as the 

chair of the Ohio Ballot Board, for the board’s consideration under R.C. 

3505.062. 

{¶ 5} The amendment, which proposes to add Section 21 to Article I of 

the Ohio Constitution, states: 

{¶ 6} “ARTICLE I 

{¶ 7} “Preservation of the freedom to choose health care and health 

care coverage 

{¶ 8} “Section 21 (A) No federal, state, or local law or rule shall 

compel, directly or indirectly, any person, employer, or health care provider to 

participate in a health care system. 

{¶ 9} “Section 21 (B) No federal, state, or local law or rule shall prohibit 

the purchase or sale of health care or health insurance. 

{¶ 10} “Section 21 (C) No federal, state, or local law or rule shall impose 

a penalty or fine for the sale or purchase of health care or health insurance. 

{¶ 11} “Section 21 (D) This section does not affect laws or rules in effect 

as of March 19, 2010; affect which services a health care provider or hospital is 

required to perform or provide; affect terms and conditions of government 

employment; or affect any laws calculated to deter fraud or punish wrongdoing in 

the health care industry. 
January Term, 2010 

3

{¶ 12} “Section 21 (E) As used in this Section, 

{¶ 13} “(1) ‘Compel’ includes the levying of penalties or fines. 

{¶ 14} “(2) ‘Health care system’ means any public or private entity or 

program whose function or purpose includes the management of, processing of, 

enrollment of individuals for, or payment for, in full or in part, health care 

services, health care data, or health care information for its participants. 

{¶ 15} “(3) ‘Penalty or fine’ means any civil or criminal penalty or fine, 

tax, salary or wage withholding or surcharge or any named fee established by law 

or rule by a government established, created, or controlled agency that is used to 

punish or discourage the exercise of rights protected under this section.” 

(Boldface sic.) 

{¶ 16} On April 9, the ballot board held a meeting to determine, pursuant 

to R.C. 3505.062(A), whether relators’ initiative petition contained more than one 

constitutional amendment. In the board’s discussion, the secretary of state opined 

that although Sections A, B, and C of the proposed amendment were arguably 

related to the subject of individual choice in health care and health insurance, 

Section D was not. 

{¶ 17} The secretary further explained that Section C of the proposed 

amendment could be successfully rationalized as relating to freedom of choice, 

but Section D could not: 

{¶ 18} “But then when I get to (D), (D) is where I really – I mean, (C) I 

could probably, you know, successfully rationalize that. But when I get to (D) is 

where I run into problems where I don’t see where I am talking about the 

purchase or sale of health insurance, but we’re talking directly about government 

regulation without dealing with that industry of – of individual choice.” 

{¶ 19} At the conclusion of the meeting, the ballot board adopted the 

secretary’s recommendation, dividing the petition into two separate issues and 

certifying to the attorney general the original petition as two proposed 
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constitutional amendments. In the ballot board’s April 9 letter to the attorney 

general, the board stated: 

{¶ 20} “We, the undersigned members of the Ohio Ballot Board, hereby 

divide and certify that the initiative petition that you sent to us on April 1, 2010, 

proposing to add Section 21 to Article I of the Ohio Constitution contains two 

proposed constitutional amendments. The two proposed amendments are: one 

that deals with the freedom to choose health care and health care coverage; and 

the second that deals with the governance and oversight of the health care and 

health insurance industries.” 

{¶ 21} Four days later, on April 13, relators filed this action for writs of 

mandamus and prohibition to compel the secretary of state and the ballot board to 

certify the board’s approval of the proposed constitutional amendment as written 

and to certify its approval to the attorney general. In the alternative, relators 

request that the writs compel the attorney general to certify relators’ proposed 

constitutional amendment pursuant to R.C. Chapter 3519. On April 15, we 

granted an alternative writ on relators’ mandamus claim and issued an accelerated 

schedule for responses to the complaint and the submission of evidence and 

briefs. State ex rel. Ohio Liberty Council v. Brunner, 124 Ohio St.3d 1548, 2010-

Ohio-1662, 924 N.E.2d 849. We also dismissed relators’ prohibition claim. Id. 

{¶ 22} Respondents submitted answers, and the parties submitted 

evidence and briefs. 

{¶ 23} This cause is now before the court for our consideration of the 

merits. 

Legal Analysis 

Preliminary Matters

{¶ 24} Before addressing the merits of relators’ claim, it is instructive to 

remember what our resolution of their claim does not address. This case is not 

about the relative merits of relators’ proposed constitutional amendment and 
January Term, 2010 

5

whether its passage would actually result in the specified purpose of preserving 

the freedom to choose health care and health-care coverage. Nor is this case 

about the constitutionality or legality of the substance of the proposed 

amendment. “Any claims alleging the unconstitutionality or illegality of the 

substance of the proposed [initiative], or actions to be taken pursuant to the 

[initiative] when enacted, are premature before its approval by the electorate.” 

State ex rel. DeBrosse v. Cool (1999), 87 Ohio St.3d 1, 6, 716 N.E.2d 1114. 

{¶ 25} Instead, the limited legal issue before us is whether the ballot board 

abused its discretion and clearly disregarded applicable law by determining that 

relators’ initiative petition contained more than one proposed constitutional 

amendment. 

Mandamus 

{¶ 26} Relators request a writ of mandamus to compel the ballot board to 

certify its approval of the single proposed amendment as written and certify its 

approval to the attorney general. To be entitled to the writ, relators must establish 

a clear legal right to the requested relief, a corresponding clear legal duty on the 

part of respondents to provide it, and the lack of an adequate remedy in the 

ordinary course of law. State ex rel. Husted v. Brunner, 123 Ohio St.3d 119, 

2009-Ohio-4805, 914 N.E.2d 397, ¶ 11. 

Lack of Adequate Remedy in the Ordinary Course of Law 

{¶ 27} Because of the proximity of the June 30 deadline to file the signed 

initiative petition with the secretary of state to have the proposed amendment 

submitted to the electorate at the November 2, 2010 general election, relators lack 

an adequate remedy in the ordinary course of law. See State ex rel. Greene v. 

Montgomery Cty. Bd. of Elections, 121 Ohio St.3d 631, 2009-Ohio-1716, 907 

N.E.2d 300, ¶ 10; Section 1a, Article II, Ohio Constitution. No right to appeal 

from the ballot board’s determination is granted. See R.C. 3505.062; see also 

State ex rel. Morgan v. State Teachers Retirement Bd. of Ohio, 121 Ohio St.3d 
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324, 2009-Ohio-591, 904 N.E.2d 506, ¶ 20 (mandamus is an appropriate remedy 

to correct an abuse of discretion by a public board in a decision that is not 

appealable). 

{¶ 28} And notwithstanding respondents’ claim to the contrary, relators’ 

mandamus claim is not an ill-disguised claim of declaratory judgment and 

prohibitory injunction, and neither a declaratory judgment nor a prohibitory 

injunction would constitute an adequate remedy in the ordinary course of law. A 

declaratory judgment would not be an adequate remedy without a mandatory 

injunction ordering the ballot board to immediately certify its approval of relators’ 

proposed constitutional amendment, as written, to the attorney general. See State 

ex rel. Mill Creek Metro. Park Dist. Bd. of Commrs. v. Tablack (1999), 86 Ohio 

St.3d 293, 297, 714 N.E.2d 917. And a prohibitory injunction would not provide 

relators with the relief they request: an order to compel the ballot board to 

comply with its duties under R.C. 3505.062 to certify its approval of their 

proposed constitutional amendment as written. Nor would it be sufficiently 

speedy, given the imminent deadline. 

{¶ 29} Therefore, relators’ complaint properly invokes our original 

jurisdiction, and an action in the court of common pleas for a declaratory 

judgment and a prohibitory injunction would not provide an adequate remedy in 

the ordinary course of law. 

Clear Legal Right and Clear Legal Duty 

{¶ 30} In extraordinary actions challenging the decisions of the secretary 

of state and boards of elections, for example, the standard is whether they 

engaged in fraud, corruption, or abuse of discretion or acted in clear disregard of 

applicable legal provisions. See generally State ex rel. Owens v. Brunner, 125 

Ohio St.3d 130, 2010-Ohio-1374, 926 N.E.2d 617, ¶ 26. This standard is also 

appropriate for gauging the propriety of the ballot board’s determination here. 

Therefore, in the absence of any evidence of fraud or corruption, the dispositive 
January Term, 2010 

7

issue is whether the ballot board abused its discretion and clearly disregarded 

applicable law in determining that relators’ initiative petition contained two 

proposed constitutional amendments and in dividing the petition into two and in 

certifying the two proposed amendments to the attorney general. 

{¶ 31} Under Section 1, Article II of the Ohio Constitution, “the people 

reserve to themselves the power to propose to the general assembly laws and 

amendments to the constitution, and to adopt or reject the same at the polls on a 

referendum vote as hereinafter provided.” “The first aforestated power reserved 

by the people is designated the initiative, and the signatures of ten per centum of 

the electors shall be required upon a petition to propose an amendment to the 

constitution.” Section 1a, Article II of the Ohio Constitution. “The limitations 

expressed in the constitution, on the power of the general assembly to enact laws, 

shall be deemed limitations on the power of the people to enact laws.” Section 1, 

Article II of the Ohio Constitution. 

{¶ 32} Under Section 1, Article XVI of the Ohio Constitution, the General 

Assembly is authorized to propose a constitutional amendment by joint resolution, 

and one of the requirements specified therein for a legislatively initiated proposed 

constitutional amendment is that each amendment be submitted separately to the 

electors: 

{¶ 33} “When more than one amendment shall be submitted at the same 

time, they shall be so submitted as to enable the electors to vote on each 

amendment, separately.” 

{¶ 34} R.C. 3519.01(A) imposes a similar requirement on citizen-initiated 

proposed constitutional amendments: 

{¶ 35} “Only one proposal of law or constitutional amendment to be 

proposed by initiative petition shall be contained in an initiative petition to enable 

the voters to vote on that proposal separately. A petition shall include the text of 
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any existing statute or constitutional provision that would be amended or repealed 

if the proposed law or constitutional amendment is adopted. 

{¶ 36} “Whoever seeks to propose a law or constitutional amendment by 

initiative petition shall, by a written petition signed by one thousand qualified 

electors, submit the proposed law or constitutional amendment and a summary of 

it to the attorney general for examination. Within ten days after the receipt of the 

written petition and the summary of it, the attorney general shall conduct an 

examination of the summary. If, in the opinion of the attorney general, the 

summary is a fair and truthful statement of the proposed law or constitutional 

amendment, the attorney general shall so certify and then forward the submitted 

petition to the Ohio ballot board for its approval under division (A) of section 

3505.062 of the Revised Code. If the Ohio ballot board returns the submitted 

petition to the attorney general with its certification as described in that division, 

the attorney general shall then file with the secretary of state a verified copy of the 

proposed law or constitutional amendment together with its summary and the 

attorney general's certification.” (Emphasis added.) 

{¶ 37} R.C. 3505.062, in turn, specifies the duty of the ballot board to 

determine whether an initiative petition contains only one proposed law or 

constitutional amendment: 

{¶ 38} “The Ohio ballot board shall do all of the following: 

{¶ 39} “(A) Examine, within ten days after its receipt, each written 

initiative petition received from the attorney general under section 3519.01 of the 

Revised Code to determine whether it contains only one proposed law or 

constitutional amendment so as to enable the voters to vote on a proposal 

separately. If the board so determines, it shall certify its approval to the attorney 

general, who then shall file with the secretary of state in accordance with division 

(A) of section 3519.01 of the Revised Code a verified copy of the proposed law or 
January Term, 2010 

9

constitutional amendment together with its summary and the attorney general's 

certification of it. 

{¶ 40} “If the board determines that the initiative petition contains more 

than one proposed law or constitutional amendment, the board shall divide the 

initiative petition into individual petitions containing only one proposed law or 

constitutional amendment so as to enable the voters to vote on each proposal 

separately and certify its approval to the attorney general. If the board so divides 

an initiative petition and so certifies its approval to the attorney general, the 

petitioners shall resubmit to the attorney general appropriate summaries for each 

of the individual petitions arising from the board's division of the initiative 

petition, and the attorney general then shall review the resubmissions as provided 

in division (A) of section 3519.01 of the Revised Code.” (Emphasis added.) 

{¶ 41} Because this separate-petition requirement is comparable to the 

separate-vote requirement for legislatively initiated constitutional amendments 

under Section 1, Article XVI of the Ohio Constitution, our precedent construing 

the constitutional provision is instructive in construing the statutory requirement. 

In State ex rel. Willke v. Taft, 107 Ohio St.3d 1, 2005-Ohio-5303, 836 N.E.2d 

536, at ¶ 34, we set forth the test for determining satisfaction of the separate-vote 

requirement: 

{¶ 42} “[T]he applicable test for determining compliance with the 

separate-vote requirement of Section 1, Article XVI is that ‘a proposal consists of 

one amendment to the Constitution only so long as each of its subjects bears some 

reasonable relationship to a single general object or purpose.’ (Emphasis sic.) 

[State ex rel.] Roahrig [v. Brown (1972)], 30 Ohio St.2d [82] at 84, 59 O.O.2d 

104, 282 N.E.2d 584. ‘Thus, where an amendment to the Constitution relates to a 

single purpose or object and all else contained therein is incidental and reasonably 

necessary to effectuate the purpose of the amendment, such amendment is not 

violative of the provisions of Section 1, Article XVI.’ State ex rel. Burton v. 
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10

Greater Portsmouth Growth Corp. (1966), 7 Ohio St.2d 34, 36, 36 O.O.2d 19, 

218 N.E.2d 446. Courts have generally taken a ‘liberal [view] in interpreting 

what such a single general purpose or object may be.’ See [State ex rel.] 

Foreman [v. Brown (1967)], 10 Ohio St.2d [139] at 146, 39 O.O.2d 149, 226 

N.E.2d 116; see, also, cases from other jurisdictions cited at fn. 7.” 

{¶ 43} In applying this test to relators’ proposed constitutional 

amendment here, we hold that the proposal consists of one amendment because 

all the sections contained therein bear some reasonable relationship to the single 

general purpose of preserving Ohioans’ freedom to choose their health care and 

health-care coverage as it existed on March 19, 2010, with certain exceptions, 

before the enactment of the Patient Protection and Affordable Care Act. Section 

21(A) preserves this freedom of choice by prohibiting the government from 

compelling any person, employer, or health-care provider to participate in any 

health-care system. Section 21(B) advances the freedom of choice by forbidding 

the government to prohibit the purchase or sale of health care or health-care 

insurance. As relators observe, persons’, employers’, and health-care providers’ 

choices of health care and health-care insurance will be inhibited if their ability to 

choose between different providers is limited. Moreover, it is manifest that 

Section 21(E) of the proposed amendment, which merely provides definitions for 

some of the terms used in the other sections of the amendment, relates to the 

single purpose as well. Respondents do not argue to the contrary. 

{¶ 44} The ballot board and the secretary of state argue in their merit brief 

that although Sections A, B, D, and E of relators’ proposed constitutional 

amendment all relate to the single general purpose or object of preserving 

freedom of choice of health care and health-care coverage, Section C does not 

because its “unintended consequences” “transcend the availability and terms of 

coverage” and, if passed, it would “fundamentally rework the way Ohio regulates 

the insurance industry.” At its April 9 meeting, however, the board appeared to 
January Term, 2010 

11

acknowledge that Sections A, B, and C of relators’ proposed constitutional 

amendment relate to the single purpose or object of choice, but that Section D, 

which specifies exceptions to the amendment, constituted the separate 

amendment. Specifically, the ballot board seemingly determined that this section 

of the proposed amendment “deals with the governance and oversight of the 

health care and the health insurance industries” rather than “the freedom to choose 

health care and health care coverage.” 

{¶ 45} For the following reasons, the ballot board abused its discretion 

and clearly disregarded R.C. 3505.062 in so concluding, regardless of whether it 

relied on Section C or Section D of the proposed amendment. 

{¶ 46} First, despite respondents’ claims to the contrary, the transcript of 

the ballot board’s proceedings indicates that the board’s decision was based on 

Section D rather than Section C of relators’ proposed constitutional amendment. 

The secretary of state, in her capacity as chair of the ballot board, reasoned that 

Section C could be successfully rationalized as relating to the general purpose of 

freedom of choice of health care because a person “can’t be penalized for 

exercising freedom of choice to the point that it would impede the choice.” 

{¶ 47} Second, Section 21(C) reasonably relates to the general purpose of 

freedom of choice by prohibiting the government from imposing a penalty or fine 

for the sale or purchase of health care or health-care insurance. As the secretary 

of state acknowledged at the ballot board meeting, persons’ and employers’ 

choices of health care and health-care insurance would be impaired if their choice 

of certain providers were subject to a substantial penalty or fine. That is, as 

relators argue, “if a law imposes such a steep penalty upon the purchase or sale of 

private health care or health insurance to render it commercially and economically 

unrealistic, that law would effectively preclude the ability of an Ohioan to choose 

private health care or health care coverage.” 
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{¶ 48} The ballot board asserts that relators improperly read Section 

21(C) as if it had added the language “based on the contents of the policy” to 

“[n]o federal, state, or local law or rule shall impose a penalty or fine for the sale 

or purchase of health care or health insurance.” But this additional language is 

also not included at the end of Section 21(B), which uses language similar to that 

contained in Section C: “No federal, state, or local law or rule shall prohibit the 

purchase or sale of health care or health insurance.” And relators admit that 

Section B is reasonably related to the single general purpose of freedom of choice. 

{¶ 49} Third, Section D of the proposed constitutional amendment, which 

the ballot board determined at the board’s meeting was different from the rest of 

the amendment, has no independent meaning separate from the remainder of the 

amendment. In fact, it specifies the exceptions to Sections A, B, and C by 

beginning with the phrase, “This section does not affect * * *.” 

{¶ 50} Fourth, limitations on the scope of or exceptions to the changes 

made in a proposed amendment do not change the single amendment into multiple 

amendments. In effect, every amendment generally contains some limitations, 

whether they be temporal or by subject matter. For example, in Foreman, 10 

Ohio St.2d 139, 39 O.O.2d 149, 226 N.E.2d 116, paragraph four of the syllabus, 

we held that a proposed constitutional amendment that created a bond 

commission, but further specified the limited purposes for which money could be 

raised and used, did not violate the separate-vote requirement of Section 1, Article 

XVI of the Ohio Constitution by including limitations on the commission created 

by the amendment: 

{¶ 51} “If the proposed amendment provided only that a bond 

commission should be created to raise revenues for public purposes, no one would 

seriously contend that the proposal included more than one object and that 

therefore it represented more than one amendment. The fact, that the proposal 

limits the authority of the commission by specifying the purposes for which the 
January Term, 2010 

13

revenues may be raised and used, does not turn the proposal into one for more 

than one amendment.” Id. at 147. 

{¶ 52} Fifth, relators’ proposed constitutional amendment does not violate 

the purposes of the separate-vote requirement. “ ‘ “The constitutional mandate 

that multifarious amendments shall be submitted separately has two great 

objectives. The first is to prevent imposition upon or deceit of the public by the 

presentation of a proposal which is misleading or the effect of which is concealed 

or not readily understandable. The second is to afford the voters freedom of 

choice and prevent ‘logrolling’ or the combining of unrelated proposals in order 

to secure approval by appealing to different groups which will support the entire 

proposal in order to secure some part of it although perhaps disapproving of other 

parts.” ’ ” Willke, 107 Ohio St.3d 1, 2005-Ohio-5303, 836 N.E.2d 536, ¶ 28, 

quoting Andrews v. Governor (1982), 294 Md. 285, 295, 449 A.2d 1144, quoting 

Fugina v. Donovan (1960), 259 Minn. 35, 38, 104 N.W.2d 911, construing similar 

separate-vote requirements in the Maryland and Minnesota Constitutions. 

{¶ 53} The inclusion of Sections C and D with the remaining sections of 

relators’ proposed constitutional amendment does not render the amendment as a 

whole deceptive or constitute the attachment of an unrelated, unpopular proposal. 

{¶ 54} Finally, notwithstanding the ballot board’s implicit claim 

throughout its argument, there is no indication that the framers of the Constitution 

or the General Assembly intended that the citizens’ constitutional right of 

initiative to propose a constitutional amendment be relegated to a stricter 

separate-vote requirement than that required for the legislature’s constitutional 

right of initiative. In State ex rel. LetOhioVote.org v. Brunner, 123 Ohio St.3d 

322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 19-20, we recently reiterated that “[i]n 

1912, the electors of Ohio adopted the initiative and referendum amendment to 

the constitution” and that “[s]hortly thereafter, we explained the significance of 

the amendment” by recognizing the following: 
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{¶ 55} “ ‘Now, the people’s right to the use of the initiative and 

referendum is one of the most essential safeguards to representative government. 

* * * The potential virtue of the “I. & R.” does not reside in the good statutes and 

good constitutional amendments initiated, nor in the bad statutes and bad 

proposed constitutional amendments that are killed. Rather, the greatest 

efficiency of the “I. and R.” rests in the wholesome restraint imposed 

automatically upon the general assembly and the governor and the possibilities of 

that latent power when called into action by the voters.’ ” Id. at ¶ 20, quoting 

State ex rel. Nolan v. ClenDening (1915), 93 Ohio St. 264, 277-278, 112 N.E. 

1029. 

{¶ 56} The power of initiative must be liberally construed, and the 

General Assembly cannot diminish that power. State ex rel. Hodges v. Taft

(1992), 64 Ohio St.3d 1, 4, 591 N.E.2d 1186. By imposing the separate-vote 

requirement on citizen-initiated proposed amendments, therefore, the General 

Assembly could not diminish citizens’ constitutional right of initiative by 

construing that requirement more strictly than the similar constitutional 

requirement applicable to the legislative right of initiative. 

{¶ 57} Based on the foregoing, the ballot board has a clear legal duty to 

liberally construe the right of initiative, and as long as the citizen-initiated 

proposed amendment bears some reasonable relationship to a single general 

object or purpose, the board must certify its approval of the amendment as written 

without dividing it into multiple petitions. Because the board did not comply with 

this duty here, where relators’ proposed constitutional amendment bears some 

reasonable relationship to their single general object or purpose of preserving 

freedom of choice in health care and health-care coverage, relators are entitled to 

the requested writ of mandamus. 

Remaining Claims 
January Term, 2010 

15

{¶ 58} As a result of the foregoing, relators’ alternate claim, that the ballot 

board lacks constitutional authority to divide a citizen-initiated proposed 

amendment, need not be addressed because it is not absolutely necessary to do so. 

See State ex rel. Miller v. Brady, 123 Ohio St.3d 255, 2009-Ohio-4942, 915 

N.E.2d 1183, ¶ 11; Smith v. Leis, 106 Ohio St.3d 309, 2005-Ohio-5125, 835 

N.E.2d 5, ¶ 54 (“courts decide constitutional issues only when absolutely 

necessary”). 

{¶ 59} Moreover, relators’ alternate claim for a writ of mandamus to 

compel the attorney general to certify their proposed constitutional amendment is 

moot. 

Extension of the Constitutional Deadline to Submit Initiative Petition

{¶ 60} In their complaint, relators requested that the court grant them an 

“extension of days by which Relators may continue to gather signatures, so as to 

atone for the delay associated * * * with [the] Secretary of State and Ohio Ballot 

Board’s wrongful conduct.” We deny this request for the following reasons. 

{¶ 61} First, although relators requested this relief in their complaint, they 

failed to include any argument in support of their request in their initial merit 

brief. Instead, they resuscitated their request only in their reply brief in response 

to the ballot board’s extended argument in its brief that no extension of the 

constitutional deadline is warranted. Consequently, we need not address relators’ 

request. See State ex rel. Glasgow v. Jones, 119 Ohio St.3d 391, 2008-Ohio4788, 894 N.E.2d 686, ¶ 26 (court need not address claim that was raised in 

complaint but was not specifically argued in merit brief); State ex rel. Colvin v. 

Brunner, 120 Ohio St.3d 110, 2008-Ohio-5041, 896 N.E.2d 979, ¶ 61 (relators in 

election-related writ case are forbidden to raise issue in reply brief that was not 

raised in initial merit brief). 

{¶ 62} Second, although we have extended the constitutional deadline for 

referendum petitioners to submit a petition when the secretary of state has 
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improperly refused to accept a summary and has thereby precluded the petitioners 

from circulating the petition for signatures, see LetOhioVote.org, 123 Ohio St.3d 

322, 2009-Ohio-4900, 916 N.E.2d 462, ¶ 7, 54, and State ex rel. Ohio AFL-CIO v. 

Voinovich (1994), 69 Ohio St.3d 225, 236-237, 631 N.E.2d 582, respondents have 

introduced evidence here that an extension of the deadline would impair the 

ability of the secretary and the boards of elections to comply with their 

constitutional and statutory duties regarding the initiative petition and would 

affect several additional constitutional and statutory deadlines before the 

November 2, 2010 election. 

{¶ 63} For example, an extension of the deadline here could result in no 

resolution of whether the proposed constitutional amendment should be placed on 

the November 2, 2010 election ballot until after the absentee-ballot deadline has 

passed. 

{¶ 64} Finally, the primary impetus of relators’ proposed constitutional 

amendment is the portion of the Patient Protection and Affordable Care Act that 

requires individuals to maintain minimum essential health-care coverage and 

penalizes them if they do not, but these provisions are not effective until 2014. 

Therefore, relators need not be awarded an extension of time to place this issue on 

the November 2, 2010 ballot when they could seek placement of this initiative on 

the 2011, 2012, or 2013 general-election ballot without prejudice to their proposal 

or a departure from the constitutional deadlines. 

{¶ 65} Therefore, we deny the request for an extension. 

Conclusion

{¶ 66} Relators have established their entitlement to the requested 

extraordinary relief in mandamus. Therefore, we grant a writ of mandamus to 

compel the ballot board to immediately certify its approval of relators’ proposed 

constitutional amendment, as drafted, to the attorney general as one amendment. 
January Term, 2010 

17

This result is consistent with our duty to liberally construe the citizens’ right of 

initiative in favor of their exercise of this important right. 

Writ granted. 

 PFEIFER, ACTING C.J., and LUNDBERG STRATTON, O’CONNOR, LANZINGER, 

and CUPP, JJ., concur. 

 O’DONNELL, J., concurs and would have extended the deadline for 

submitting initiative petitions. 

 The late CHIEF JUSTICE THOMAS J. MOYER did not participate in the 

decision in this case. 

__________________ 

 1851 Center for Constitutional Law and Maurice A. Thompson; and 

Robert M. Owens, for relators. 

 Richard Cordray, Attorney General, and Michael J. Schuler, Richard N. 

Coglianese, and Aaron N. Epstein, Assistant Attorneys General, for respondents 

Secretary of State and Ohio Ballot Board. 

 Richard Cordray, Attorney General, and Pearl M. Chin and Damian W. 

Sikora, Assistant Attorneys General, for respondent Attorney General. 

_____________________