[Until this opinion appears in the Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Cincinnati Action for Hous. Now v. Hamilton Cty. Bd. of Elections , Slip Opinion No. 2021-Ohio-1038.]

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 65 South Front Street, Columbus, Ohio 43215, of any typographical or other formal errors in the opinion, in order that corrections may be made before the opinion is published.

S LIP O PINION N O
. 2021-O HIO -1038
T HE S TATE EX REL
. C INCINNATI A CTION FOR H OUSING N OW ET AL
. v . H AMILTON C OUNTY B OARD OF E LECTIONS ET AL
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State ex rel. Cincinnati Action for Hous. Now v. Hamilton Cty. Bd. of Elections , Slip Opinion No. 2021-Ohio-1038.] Elections—Mandamus—Writ of mandamus sought to compel county board of elections, secretary of state, and city council to change ballot language regarding proposed city charter am endment on the May 4, 2021 primaryelection ballot—Ballot language stating that two funding sources for proposal are prohibited by state la w are inappropriately argumentative because they are legal opinions on que stions that the proposed amendment does not address—Writ granted in part and denied in part. (No. 2021-0312—Submitted Marc h 23, 2021—Decided March 30, 2021. )
I N M ANDAMUS

.

________________S UPREME C OURT OF O HIO

2 Per Curiam. {¶ 1} At issue in this case is whether ballot language for a proposed amendment to the Cincinnati City Charter fairly and accurately presents the proposed amendment to the city’s electors. Proponents of the a mendment seek a writ of mandamus to compel changes to the ballot language. We grant the writ in part and deny it in part.
I. FACTS AND PROCEDURAL BACKGROUND {¶ 2} Relators, Cincinnati Action for Housing Now and four Cincinnati electors, 1 seek to amend the Cincinnati Ci ty Charter to require the city to provide funding for affordable housing and neighborhood stabilization. Their proposal would establish an “Affordable Housing Trust Fund” and an overs ight board to control and manage the fund. It also specifies possible fundin g sources, would require the city to appropriate at least $50 million to the fun d annually, and
establishes rules for the use of the fund. {¶ 3} A city charter may be amended onl y with the approval of the cit y’s electors. Ohio Constitution, Artic le XVIII, Section 9. Relato rs obtained a sufficient number of valid signatures on a petition calling for submission of the proposed amendment for a vote. As required under Ohio Constitu tion, Article XVIII, Sections 8 and 9, respondent Cincinnati City Council (“c ity council”) passed
an ordinance for the submission of the proposal to the electora te on the May 4, 2021
ballot. The ordinance included language for use on the ballot summarizing the proposed amendment. City council passed the summary language o ver the objection of relators’ counsel, who had identified and communic ated to city council several ways in which relators believed that the summary was de ficient. {¶ 4} R.C. 3505.06(E) authorized responde nt Hamilton County Board of Elections (“the board”) to prep are and certify “condensed text” that “properly

1. The individual relators/electors are Fannie Johnson, Joshua Wesley Spring, Margaret Anne Fox, and Michael W. Volmer.January Term, 2021

3 describe[s]” the proposal for u se on the ballot. Although rela tors’ counsel objected once again to the ballot language, the board certified ballot l anguage that is nearly identical to the summary adopted by city council. Respondent S ecretary of State Frank LaRose approved that ballo t language on March 9, 2021, ov er the objection
of relators’ counsel. See R.C. 3501.05(J) and 3501.11(V). {¶ 5} On March 11, relators filed with this court an original action in mandamus naming the board, its members, 2 Secretary of State LaRose, and city council as respondents. Relators contend that the language cer tified by the board and approved by the secretary of state does not fairly and accu rately present the proposed amendment. They seek to compel the board and the secr etary of state to prepare, certify, and approve new ballot language that fairly a nd accurately presents the proposed amendment.
II. APPLICA BLE LAW AND ANALYSIS A. Mandamus standard and lack of an adequate remedy {¶ 6} To be entitled to a writ of mandamus, relators must prove by cl ear and convincing evidence a clear legal right to the requested relief , a clear legal duty on the part of respondents to provide it, and the lack of an adequ ate remedy in the ordinary course of the law. State ex rel. Waters v. Spaeth , 131 Ohio St.3d 55, 2012- Ohio-69, 960 N.E.2d 452, ¶ 6. To establish a clear legal right to the requested relief and a clear legal duty of respondents, relators must show that respondents abused their discretion or clearly disregarded the law in preparing, c ertifying, or approving the ballot language. State ex rel. Kilby v. Summit Cty. Bd. of Elections , 133 Ohio St.3d 184, 2012-Ohio-4310, 977 N.E.2d 590, ¶ 8. Given the prox imity of the May 4 election, we hold that relators lack an adequate remedy in th e ordinary course of
the law. See State ex rel. Cincinnati for Pensi on Reform v. Hamilton Cty. Bd. of
Elections , 137 Ohio St.3d 45, 2013-Ohio-4489, 997 N.E.2d 509, ¶ 21.

2. The board members are Gwen L. McFarlin, Alex M. Triantafilo u, Joseph L. Mallory, and Charles H. Gerhardt III.S UPREME C OURT OF O HIO

4 B. Ballot language certified by the board {¶ 7} “When a local issue qualifies for the ballot, the board of elec tions may either use the entire text of the proposed charter amendment as ballot language or it may prepare and certify a condensed text so long as the text ‘properly describe[s]’ the issue or amendment.” (Brackets sic.) Id . at ¶ 22, quoting R.C. 3505.06(E). Once a board of elections certifies ballot language, it must tr ansmit the language to the secretary of state for final approval. R.C. 3501.11(V). {¶ 8} Ballot language “must fairly and accurately present the questio n or issue to be decided in order to assure a free, intelligent and informed vote by the average citizen affected.” Markus v. Trumbull Cty. Bd. of Elections , 22 Ohio St.2d 197, 259 N.E.2d 501 (1970), paragraph four of the syllabus. To satisfy R.C. 3505.06(E), ballot language must be “fair, honest, clear and co mplete” and “no essential part of the proposed amendment” may be omitted. State ex rel. Minus v.
Brown , 30 Ohio St.2d 75, 81, 283 N.E.2d 131 (1972). When assessing ballot language, this court asks three questions: (1) Does the text te ll voters what they are being asked to vote upon?, Cincinnati for Pension Reform at ¶ 24, (2) Does it impermissibly use language that amounts to a persuasive argumen t for or against the measure?, id . at ¶ 25, and (3) If there are technical defects in the text, is the
cumulative effect of thos e defects harmless?, id

. at ¶ 26. {¶ 9} Relators argue that the ballot language certified by the board and approved by the secretary of s tate violates R.C. 3505.06(E) in several ways, by either impermissibly adding to the proposed amendment or omitti ng its material details. As a preliminary matter, the board suggests that we n eed not address the alleged material omissions becau se the proposed ballot language on relators’ own petition signed by electors omitted the same information relato rs now say should be included. The board argues th at it did not abuse its discre tion or disregard the law “by opting for the more detailed ballot language proffered” by city council.January Term, 2021

5 {¶ 10} The board shows that it misapprehends its role by suggesting th at it simply chose between the two summaries. Relators and city coun cil were free to suggest ballot language, but R .C. 3505.06(E) provides for the u se of ballot language “as prepared and certified * * * by the board.” Regardless of what language was proposed to the board, the board alone had the legal duty to pr epare the language. We therefore must examine whether the board complied with R.C. 3505.06(E) and we will address relators’ arguments. 1. Language regarding the city’s pr iorities for appropriation of funds

{¶ 11} The proposed charter amendment would require city council to appropriate at least $50 million annually to the trust fund. T he ballot language states that “[t]he mandatory $50 milli on annual appropriation shall ta ke priority over other funding needs of the City and could require the City to reduce City services and infrastructure projects by as much as $50 million annually comp ared to current City expenditures for general operating and capital projects.” {¶ 12} Relators argue that this language is misleading because, accord ing to them, the proposed amendment would not prioritize affordable housing over city services and infrastructure projects, affect city council’s aut hority to fund city services and infrastructure pro jects, or require reductions in funding. We considered similar arguments regarding the use of explanatory t ext in ballot proposals in Cincinnati for Pension Reform , 137 Ohio St.3d 45, 2013-Ohio-4489, 997 N.E.2d 509, at ¶ 28-36. We concluded that explanatory text that invites voters to make inferences is misleading only if it “would lead an aver age reader to draw a
conclusion that is false .” (Emphasis sic.) Id . at ¶ 34. {¶ 13} Relators have not shown that the language noted above regarding the city’s prioritization of appropriations to the fund would lead voters to false conclusions. To start, the sta tement indicating that appropria tions to the fund would have priority over funding for city services and infrastructure projects is accurate. The proposal would amend the city charter—a document that “limi ts, governs, andS UPREME C OURT OF O HIO

6 controls the council very much th e same as the Constitution lim its, governs, and controls the General Assembly,” Bauman v. State , 122 Ohio St. 269, 270, 171 N.E. 336 (1930). The measure would constrain city council in its pe rformance of its duties. If the proposed amendm ent passes, city council will ne ed to appropriate money first to the fund before it appropriates any money for ci ty services and projects for which funding is not mandated under the city chart er. {¶ 14} Relators’ remaining arguments that the appropriation-priority b allot language is misleading rest on their misreading of the text. T hey argue that the language falsely states that the proposed amendment would alter city council’s “authority” to provide funding for city services and infrastruc ture projects. But the language does not involve city council’s authority to fund city services and infrastructure projects ; it speaks only to its ability to fund other things if $50 million is earmarked for affordable housing. And relators incorrectly contend that the language falsely states that t he proposed amendm ent would “mand ate” a reduction in city services and infrastructure spending. The language sta tes only that the proposal “could require” such reductions. The language therefo re is not misleading. {¶ 15} Relators also argue that the appropriation-priority language is argumentative because it specula tes about how the amendment mig ht negatively impact the city. In Cincinnati for Pension Reform , 137 Ohio St.3d 45, 2013-Ohio4489, 997 N.E.2d 509, at ¶ 49, we approve d of added ballot text that explained the consequences of a proposed measure because the text “did not in troduce a new subject that was outside the ter ms of the proposed amendment * * * [a]nd there [wa]s nothing factually inaccurate about the descriptive langua ge.” The same can be said of the ballot language h ere. The proposed amendment ad dresses the appropriation of funds, so it is f air for the ballot language t o also address that topic.
See id . at ¶ 48-49. And again, the ballo t language is not inaccurate

.January Term, 2021

7 {¶ 16} Relators nevertheless rely on Beck v. Cincinnati , 162 Ohio St. 473, 124 N.E.2d 120 (1955), to argue that the ballot language is arg umentative. In Beck , language was added to the caption of a proposed tax levy promis ing that if the levy were to pass, there would be no city income tax for two years. Id . at 474. This court invalidated the language because the added language repre sented an unenforceable promise designed to induce support for the levy. Id . at 475-476. {¶ 17} Beck is distinguishable from the facts of this case for the same re ason that it was distinguishable from those in Cincinnati for Pension Reform : “[T]he problem with the language in Beck was not that it was argumentative, but that it was an improper inducement .” (Emphasis sic.) Cincinnati for Pension Reform at ¶ 40. The language at issue here, in contrast to the language in Beck , does not promise (or threaten) future action; it s imply explains how the proposed am endment could affect future city budgets. And the issue in Beck was the inclusion of text in a ballot caption, not ballot language. Cincinnati for Pension Reform at ¶ 41; Beck at 474. “A more accurate understanding of Beck would be that when it comes to the caption (as opposed to the summary language, which is governed by R.C. 3505 .06(E)), nothing is permitted in the way of specifics about the proposal under c onsideration.” Cincinnati for Pension Reform at ¶ 41. {¶ 18} We deny relators’ claim for a writ of mandamus to the extent th at their complaint challenges the ballot language addressed in thi s section of this opinion because that text fairly and accurately explains the pr oposed amendment’s possible impact on funding for city services and infrastructure

. 2. Language regarding funding dedicated to essential city services and infrastructure {¶ 19} The first sentence of the ballot summary states:

Shall the Charter of the City of Cincinnati be amended to require a permanent, annual contribution of fifty million dolla rsS UPREME C OURT OF O HIO

8 ($50,000,000) of City funds to a new restricted fund for housin g that is affordable to persons with low incomes and for related purpo ses using funding sources otherwise dedicated to providing for essential City services and public infrastructure needs * * *.

(Emphasis added.) Relators argue that the language emphasized above is misleading and argumentative. {¶ 20} We conclude that “the average citizen,” Markus , 22 Ohio St.2d 197, 259 N.E.2d 501, at paragraph four of the syllabus, would understand the dispute d text to mean that the amendment would require the city to appro priate up to $50 million from sources that currently are used to fund essential city services and infrastructure projects. Indeed, city council and several amic i curiae urging denial of the writ argue that much of the $50 million funding for the trust fund would have to come from the city’s general-operating and capital funds. A nd they further argue that appropriations for essential services and infrastructure p rojects currently come from the general-operating and capital funds. Although relator s argue that it is speculative to suggest that allocating $50 million to the affor dable-housing fund each year will require cuts in other city endeavors, they do not dis pute the basic premise of the ballot language—that the trust fund would dip into the b ucket of funds that provides for essential city ser vices and public infrastructure. {¶ 21} As discussed above, the amendment would require the city to appropriate money to the trust fund before providing funds for other services and needs. We conclude that the text regarding funding sources ded icated to essential city services and infrastructure fairly and accurately describe s that reality and we therefore deny the writ to the extent that it challenges the ba llot language addressed in this section of this opinion.January Term, 2021

9 3. Lack of explanation of city council’s ro le in appointing members to the trustfund board {¶ 22} Relators next argue t hat the ballot langua ge is misleading beca use it does not explain city council’s role in appointing members to t he trust-fund board. Under the terms of the proposal, the trust-fund board would con sist of 11 members, and the right to nominate the board members would be divided am ong four private organizations and city council’s president pro tem. The propos al provides that “City Council will appoint all nominated members to the Board” and that “Council
shall confirm all no minations for appointme nt at the next meeti ng of Council.” {¶ 23} Relators complain that the ballot language mischaracterizes the board-member-selection process by stating only that the fund wo uld be “administered by an unelected volunteer board” and that it “wil l be controlled and managed by a board that will consist of eleven private citizens , nine of whom are selected by affordable housing and low income service organizat ions and two of whom are selected by the City C ouncil President Pro Tem.” Rela tors argue that the ballot language “omits the critical role played by the City Cou ncil in selecting the members” of the trust-fund board. They rely on our decision in State ex rel. Voters
First v. Ohio Ballot Bd. , 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 31-37, in which we held that ballot language in that case was invalid to the extent that it failed to explain the selection process for members of a commission that would be created by the ba llot measure at issue. {¶ 24} When a board of elections approves ballot language, “any omitte d substance of the proposal must not be material, i.e., its absen ce must not affect the fairness or accuracy of the text.” Id . at ¶ 30. A board must not omit from ballot language an “essential part” of the proposed amendment. Minus , 30 Ohio St.2d at 81, 283 N.E.2d 131. {¶ 25} Relators have not shown that city council’s role in the appoint ment process is an essential part of the proposed amendment. Contra ry to relators’S UPREME C OURT OF O HIO

10 argument, city council would not have a significant role in dec iding who will serve as members of the trust-fund board. Even if city council were to have the authority to reject nominees, the amendment still would not give it the r ight to select individuals for service on the board. This case is distinguish able from Voters First , in which the ballot language omitted any explanation of who wou ld appoint individuals to the proposed commission. Voters First at ¶ 34, 37. {¶ 26} Relators also argue that the use of the word “unelected” to des cribe the trust-fund board is argumentative. But as already discusse d, if ballot language is factually accurate and addresses a subject that is in the pr oposed amendment itself, it should not be deemed argumentative. Cincinnati for Pension Reform , 137 Ohio St.3d 45, 2013-Ohio-4489, 997 N.E.2d 509, at ¶ 49. We rej ect relators’ argument and deny the writ rega rding this language because unde r the terms of the proposed amendment, the trust fund-board would, in fact, be une lected. 4. Language regarding sources of funds {¶ 27} Relators also challenge several aspects of the following ballot language:

City Council shall appropriate no less than $50 million into the fund every fiscal year beginning July 1, 2021, to be paid f rom (1) the City’s general operating or capital funds; (2) revenue from the lease or sale of the Cincinnati Southern Railway, which appropriation is prohibited by s tate law; (3) a proposed fee on developers of all comme rcial and some resi dential projects; or (4) a personal income tax on the award of stock options in publicly t raded companies, which tax is curre ntly prohibited by state law.

(Emphasis added.)January Term, 2021

11 a {¶ 28} The proposed amendment would requi re city council to appropriat e money into the fund “from among” several sources. Relators arg ue that the ballot language regarding those funding sources will mislead voters by suggesting that funding will be drawn from all —and not merely “from among”—the potential sources listed in the proposal. But the use of the disjunctive word “or” plainly indicates that funding need not be drawn from each of the liste d sources. See In re Estate of Centorbi , 129 Ohio St.3d 78, 2011-Ohio-2267, 950 N.E.2d 505, ¶ 18 (“use of the word ‘or,’ a disjunctive term, signifies the presence of alternatives”). We reject relators’ argument th at this text is misleading.
b {¶ 29} Relators next argue that this ballot language is misleading bec ause it omits a fifth potential funding source—namely, an increase in t he municipalincome-tax rate if an increase is approved by Cincinnati voters . In support, relators refer to the following language in the proposed amendment: “Not hing herein shall be construed to permit the council to raise revenue for purpose s of this Article through an increase in the rate of the income tax unless the is sue is first submitted
to a vote of the electorate.” B ut that language would not esta blish a funding source;
it would prohibit one absent future voter approval. We reject relators’ argument because the ballot text is not misleading.

c {¶ 30} Relators also argue that this ba llot language is argumentative because it states that use of two of the proposed funding sources—reven ue from the lease or sale of the Cincinnati Southern Railway and a personal income t ax on stock-option income—is prohibited by state law. The proposed amendment itse lf does not address whether using these funding sources would be legal. {¶ 31} We hold that the statements sa ying that two of the funding sour ces are prohibited by state law are inappropriately argumentative b ecause they are legalS UPREME C OURT OF O HIO

12 opinions on questions that the proposed amendment does not addr ess. See Cincinnati for Pension Reform , 137 Ohio St.3d 45, 2013-Ohio-4489, 997 N.E.2d 509, at ¶ 49 (refusing to grant a writ of mandamus regarding ex planatory text
because it was factually accurate and addressed a subj ect that was in the proposed amendment). In its brief, city council attempts to justify the added text by explaining why it believes that Ohio law prohibits using the tw o funding sources. But arguments challenging the validity of the proposal are prem ature when made
before the amendment has bee n approved by the electorate. Kilby , 133 Ohio St.3d 184, 2012-Ohio-4310, 977 N.E.2d 590, at ¶ 12. It would be inap propriate for this court to render an advisory opi nion on the legality of relators ’ proposal, particularly in the context of this expedite d election case. We grant the w rit regarding this language. 5. Language regarding purposes of the proposed amendment {¶ 32} In their final argument, relators contend that the ballot langu age is misleading and incomplete because the opening sentence states o nly that the proposal would establish “a new restricted fund for housing that is affo rdable to persons with
low incomes and for related purposes .” (Emphasis added.) They argue that those additional purposes—namely, “neighborhood stabilization,” “hous ing investment to prevent displacement,” and “leverag[ing] additional outside res ources”—are material aspects of the proposal that need to be expressly mentioned on the ballot. {¶ 33} Relators have not shown that stating these specific purposes on the
ballot is essential for an avera ge voter to understand the subs tance of the proposed
amendment. See Markus , 22 Ohio St.2d 197, 259 N.E.2d 501, at paragraph four of the syllabus. The nature of a s ummary requires the omission of “some important
but nonessential information.” Cincinnati for Pension Reform at ¶ 75. The language in the opening paragraph of the ballot concisely expla ins the general purpose of the proposal , and in a later para graph the summary s tates that “the fund
can be allocated to new constr uction, renovation of vacant prop erty, renovation ofJanuary Term, 2021

13 existing affordable units, operation costs of affordable housin g, and direct services.” The text effectively informs voters about the purpo ses of the proposed
charter amendment. C. Clear legal dut y of city council and/or the secretary of st ate {¶ 34} Mandamus is an appropriate remedy to compel a board of election s to amend local-issue ballot language to comply with R.C. 3505.0 6. State ex rel.
Walker v. LaRose , ___ Ohio St.3d ___, 2021-Ohio-825, ___ N.E.3d ___, ¶ 16. Again, for the reasons discussed above, the board has a clear l egal duty under R.C. 3505.06(E) to eliminate from the ballo t language any statements concerning the legality of using certain funding sources. Relators, however, have not shown that city council or the secretary of state has a similar duty. {¶ 35} Relators do not even allege tha t city council has a duty to do anything about the ballot language. Relat ors therefore have not stated a claim against city
council. {¶ 36} As for the secretary of state, relators point to R.C. 3519.21, which provides that in preparing “a ballot title,” the secretary of s tate “shall give a true and impartial statement of the measure[] in such language that the ballot title shall not be likely to create prejudice for or against the measure.” But be cause R.C. 3519.21 deals with ballot titles, not ballot la nguage, it has no application in this case. {¶ 37} Relators also argue that the secretary of state has a duty unde r R.C. 3501.05(J) to give “final approval” of ballot language prepared and certified by a
board of elections. Relators ar gue that R.C. 3501.05(J) requir es the secretary of state to substantively review local-issue ballot language. But even if that is true, relators are not trying to compel the secretary to conduct a su bstantive review of the ballot language. They seek to compel the preparation of va lid ballot language. That duty belongs only to the board. Relators therefore are no t entitled to relief against the secretary of state.S UPREME C OURT OF O HIO

14 D. City council’ s unclean-hands defense {¶ 38} City council argues that relato rs’ claims should be denied unde r the
unclean-hands doctrine because t he petition prepared and circul ated by relators allegedly failed to accurately inform petition-signers about cr itical details of the proposed amendment. We need not consider this defense because relators are not entitled to a writ of mandamus against city council.
E. Court costs a nd attorney fees {¶ 39} Relators ask for an assessment of court costs against responden ts and an award of attorney fees and expenses. Relators have not show n that they are entitled to an assessment of court costs, see S.Ct.Prac.R. 18.05(A)(2)(d), or an award of attorney fees and expenses. {¶ 40} In original actions filed in this court, costs are to be assess ed as provided in S.Ct.Prac.R. 18.05(A)(2). But “the general rule is that absent a statute allowing attorney fees as costs, the prevailing party is not en titled to an award of attorney fees unless the party against whom the fees are taxed acted in bad faith.”
State ex rel. Dellick v. Sherlock , 100 Ohio St.3d 77, 2003-Ohio-5058, 796 N.E.2d 897, ¶ 55. Relators have provided no evidence that the board a cted in bad faith. We deny relators’ request for an award of attorney fees and expens es. III. CONCLUSION {¶ 41} Relators have not shown that city council or the secretary of s tate has a clear legal duty to provide the relief they seek. We the refore deny relators’
claims for a writ of manda mus as to those respondents. {¶ 42} But relators have shown that the board abused its discretion an d disregarded applicable law in preparing and certifying ballot l anguage stating that the use of two potential funding sources for the proposed affor dable-housing trust fund would violate state law. Those legal opinions cons titute impermissible persuasive argument against the proposed amendment. We grant a writ of mandamus to compel the board, forthwith, to prepare and certify new ballot languageJanuary Term, 2021

15 regarding that matter in compliance with R.C. 3505.06(E) and to transmit the language to the secretary of state for the secretary’s final ap proval under R.C. 3501.11(V). We deny the writ to the extent that relators seek additional relief against the board. Writ granted in part and denied in part.
O’C ONNOR , C.J., and K ENNEDY , F ISCHER , and S TEWART , JJ., concur.
D E W INE , J., concurs in part and disse nts in part, with an opinion.
B RUNNER , J., concurs in part and disse nts in part, with an opinion joi ned by
D ONNELLY , J.

_________________ D E W INE , J., concurring in part a nd dissenting in part. {¶ 43} Supporters of a Cincinnati City Charter amendment ask this cour t for a writ of mandamus compelling changes to the ballot languag e that describes the proposal. A majority of this court rejects most aspects of the claim for relief but grants a writ directing the Hamilton County Board of Electi ons to remove statements indicating that certa in aspects of the proposed amen dment are not currently authorized by state law. {¶ 44} I agree with the majority’s decision in all but two respects. Unlike the majority, I would grant the writ with respect to the langua ge in the introductory sentence of the ballot summary stating that the amendment would require an annual contribution to the proposed housing fund “using funding source s otherwise dedicated to providing for essen tial City services and public i nfrastructure needs.” And I would deny the writ as to the language stating that an ap propriation of
revenue from the lease or sale of the Cincinnati Southern Railw ay “is currently prohibited by state law.”S UPREME C OURT OF O HIO

16 I. The charter amendment does n ot mandate the use of funding s ources “otherwise dedicated to” city serv ices and infrastructure needs {¶ 45} R.C. 3505.06(E) requires that ballo t language “properly describ e the * * * amendment proposed.” As this court has explained, “R.C. 3505.06 serves to inform and protect the voter and presupposes a condensed text w hich is fair, honest, clear and complete.” State ex rel. Minus v. Brown , 30 Ohio St.2d 75, 81, 283 N.E.2d 131 (1972). {¶ 46} The proposed charter amendment seeks to establish an “Affordabl e Housing Trust Fund” and would require the Cincinnati City Counc il to appropriate a minimum of $50 million to the fund on an annual basis. To me et its obligations, the amendment directs city coun cil to appropriate money from am ong the following sources: (1) the revenue from th e lease or sale of the Cincinna ti Southern Railway, (2) a fee for developers of cer tain nonresidential or large-sca le residential projects, (3) a personal income tax on the award of stock options in publ icly traded companies, and (4) the city’s general operating fund. {¶ 47} The opening clause of the ballot summary describing the propose d
amendment states:

Shall the Charter of the City of Cincinnati be amended to require a permanent, annual contribution of fifty million dolla rs ($50,000,000) of City funds to a new restricted fund for housin g that is affordable to persons with low incomes and for related purpo ses using funding sources otherwise dedicated to providing for essential City services and public infrastructure needs , to be administered by an unelected volunteer board by enacting new Article XVII [of t he Cincinnati City Charter] * * *.January Term, 2021

17 (Emphasis added.) This language tells voters that the amendmen t would draw on funds that are otherwise dedicated to paying for essential city services and infrastructure needs. But that isn’t the case. None of the po tential funding sources
contained in the amendment are dedicated to city services and infrastructure. Indeed, the most obvious source of funding—the city’s general f und—can be and is used on a variety of expenditu res unrelated to city services and infrastructure projects. {¶ 48} The ballot language emphasized above goes beyond stating that t he amendment could result in cuts to essential city services and i nfrastructure: it gives voters the false impression that the amendment would mandate th at the city transfer money exclusively allocated for those purposes into the afforda ble-housing fund. The “ ‘average citizen’ ” knows what it means to say that funds have been dedicated for another use. Majority Opinion at ¶ 8, quoting Markus v. Trumbull Cty. Bd. of
Elections , 22 Ohio St.2d 197, 259 N.E.2d 501 (1970), paragraph four of t he syllabus. Such a stateme nt is more than misleading to voters; it is simply untrue. {¶ 49} I would therefore grant relators’ request for a writ of mandamu s directing the board of elections to remove that language from t he ballot summary.
II. Transfers of revenue from th e Cincinnati Southern Railway are “currently prohibited by state law” {¶ 50} As mentioned above, the charter amendment permits city council to pay for the affordable-housing fund using “revenue generated fr om the lease of the
Cincinnati Southern Ra ilway.” The amendment further requires, “If revenue is generated from a sale of the Railway, all proceeds shall be pla ced in the Fund.” With respect to that portion of the amendment, the ballot summa ry states that the affordable-housing fund is to be paid from “revenue from the le ase or sale of the Cincinnati Southern Railway, which appropriation is curren tly prohibited by state
law .” (Emphasis added.) {¶ 51} G.C. 15149 provides:S UPREME C OURT OF O HIO

18 [W]henever, in any city of the first class a railroad has been built, * * * all net earnings and in comes therefrom shall be pa id into the treasury of said city to the credit of the sinking fund or bond retirement fund; and in the case of the sale or final dispositi on of said railroad, the purchase mone y or price shall be paid into t he treasury of said city to the credit of the sinking fund or bond retirement fund and shall be app lied to the reduction of the bo nded debt of said city until the sa me shall be extinguished * * *.

(Ellipses in original.) 1949 Am.S.B. No. 200, 123 Ohio Laws 44 8. This law plainly states that proceeds from the railway must be paid into the sin king fund or bondretirement fund. {¶ 52} Additionally, Ohio law provides that a municipal corporation ma y transfer money out of the sinking fund or bond-retirement fund only “after all indebtedness, interest, and other obligations for the payment o f which such fund exists have been paid and retired.” R.C. 5705.14(C)(1). But e ven then, the city is not permitted to transfer money from these funds into any fund it wants. The statute requires the city to deposit any money being transferred out of one of those funds
into the other. Id . (“the unexpended balance * * * shall be transferred, in the case of the sinking fund, to the bond retirement fund, and in the ca se of the bond retirement fund, to the sinking f und”). Only if either the sin king fund or the bondretirement fund ceases to exist may money in that fund be trans ferred into another subdivision fund, and then only w ith the approval of the common pleas court. Id

. Thus, Ohio law plainly prohibits shifting revenues generated by the railway to the affordable-housing fund. {¶ 53} The majority does not conclude that there is anything misleadin g about saying that the proposed use of railway funds is prohibit ed by state lawJanuary Term, 2021

19 (indeed, how could it?), but it or ders that the language be rem oved anyway because it “would be inappropriate for thi s court to render an advisory opinion” on the matter. Majority opinion at ¶ 31. But no one has asked this c ourt to render an advisory opinion. The simple que stion before us is whether rel ators have met their burden of showing that the language is inaccurate or misleading . They have not done so. Indeed, relators do not e ven argue that the statement is inaccurate or misleading. {¶ 54} The majority also suggests that that the ballot language is imp roper because it constitutes a legal opinion on a question that the p roposed amendment does not address. To the contrary , the language does not “intr oduce a new subject that [is] outside the terms of the proposed amendment.” State ex rel. Cincinnati for Pension Reform v. Hamilton Co. Bd. of Elections , 137 Ohio St.3d 45, 2013-Ohio4489, 997 N.E.2d 509, ¶ 49. It directly addresses a term of th e proposed amendment. Nor does this language challenge the legal validity of the proposed amendment itself. It merely informs voters that one of the dir ectives contained in the amendment is not currently authorized by state law. {¶ 55} We have long held that “[v]oters have the right to know what th ey are being asked to vote upon.” Id. at ¶ 24; see also Minus , 30 Ohio St.2d at 80-81, 283 N.E.2d 131. The result of the majority’s action today is t hat a voter who relies upon the ballot language will be l eft with the false impression that the housing fund can be financed, at least in part, by railway revenues. I see no need for this court to order a change that will result in voters being misled. I w ould therefore deny the request for a writ of mandamu s relating to that language.
III. Conclusion {¶ 56} The ballot language stating that the charter amendment would require the city to pay for the affordable-housing fund “using funding sources otherwise dedicated to providing for essential City services an d public infrastructure needs” is inaccurate and misleading, so I would grant relators’S UPREME C OURT OF O HIO

20 request for a writ of mandamus directing the Hamilton County Bo ard of Elections to remove that language from th e ballot. But relators have not shown any inaccuracy in the language informing voters that Ohio law precl udes the use of proceeds from the lease or sale of the Cincinnati Southern Rail way for the affordable-housing fund, so I woul d deny the writ as to that st atement. I join the majority’s decision and judgme nt in all other respects.

_________________ B RUNNER , J., concurring in part and dissenting in part. {¶ 57} I join the majority’s decision to grant a writ of mandamus agai nst respondent Hamilton County Board of Elections (“the board”), as expressed in the majority opinion. However, I re spectfully dissent from other a spects of the majority’s judgment for several reasons. First, the writ shoul d apply not just to the board, but also to respondent, th e secretary of state. Second, the writ should require
the board to address and rewrite an additional three sections o f statutorily nonconforming ballot language. I. Why the Writ Should Also Issue as to the Secretary of State {¶ 58} The duties and responsibilities of the secretary of state are c ritical to fair local ballot issue elections and should not readily be dis regarded. In fact, R.C. 3501.05 outlines mandatory duties of the secretary of state. See id. (“The secretary
of state shall do all of the follo wing” in serving as “the stat e’s chief election officer”) R.C. 3501.04. Under R.C. 3501.05(J), the secretary of state has the express statutory authority—and duty—to “give final approval to ballot language for any local question or issue approved and transmitted by boa rds of elections under section 3501.11 of the Revised Code.” R.C. 3501.05(J). What does this mean? It means that ballot language must properly inform local voters about the issues placed before them on local election ballots. See R.C. 3505.06(E). As we explained in State ex rel Kilby v. Summit Cty. Bd. of Elections , 133 OhioSt.3d 184, 2012-Ohio-4310, 997 N.E.2d 590, ¶ 19:January Term, 2021

21 “R.C. 3505.06 serves to inform and protect the voter and presupposes a condensed text which is fair, honest, clear and complete, and from which no essential part of the proposed
amendment is omitted.” State ex rel. Minus v. Brown , 30 Ohio St.2d 75, 81, 283 N.E.2d 131 (1972). In evaluating the propriety of ballot language for local issues like charter amendments, we have appl ied the same three-part test that we apply in determining the valid ity of ballot language for a proposed constitutional amendment:

“First, a voter has the right to know what it is he is being asked to vote upon. State ex rel. Burton v. Greater Portsmouth Growth Corp. (1966), 7 Ohio St.2d 34, 37 [218 N.E.2d 446]. Second, use of language which is ‘in the nature of a persuasive argument in favor of or against the issue * * *’ is prohibited. Beck v. Cincinnati (1955), 162 Ohio St. 473, 475 [124 N.E.2d 120]. And, third, ‘the
determinative issue * * * is whether the cumulative effect of these technical defects [in ballot language] is harmless or fatal to the validity of the ballot.’ State
ex rel. Williams v. Brown (1977), 52 Ohio St.2d 13, 19 [368 N.E.2d 838]; State ex rel. Commrs. of the Sinking Fund v. Brown (1957), 167 Ohio St. 71 [146 N.E.2d 287].”

(Brackets added in Jurcisin .) Kilby at ¶ 19, quoting Jurcisin v. Cuyahoga Cty. Bd. of Elections , 35 Ohio St.3d 137, 141, 519 N.E.2d 347 (1988) (charter amendm ent),S UPREME C OURT OF O HIO

22 quoting State ex rel. Bailey v. Celebrezze , 67 Ohio St.2d 516, 519, 426 N.E.2d 493 (1981) (state constitutional amendment); see also State ex rel. Cincinnati for Pension Reform v. Hamilton Cty. Bd. of Elections , 137 Ohio St.3d 45, 2013-Ohio4489, 997 N.E.2d 509, ¶ 23-26 (citing three guidelines for eval uating ballot language: (1) voters have the right to know what they are votin g for, (2) use of language in the nature of a persuasive argument in favor of or against the measure is prohibited, and (3) the determinative issue is whether the c umulative effect of the
technical defects is harmless or f atal to the validity of the b allot language). {¶ 59} This body of the state’s election law applying R.C. 3505.06 and concerning ballot language for m unicipal-charter amendments is well-developed. At a minimum, the secretary of state must “[c]ompel the observa nce by election
officers in the several counties of the requirements of the ele ction laws.” R.C. 3501.05(M). That did not happen in this case, and the secretar y of state should embrace this duty and not attempt to dispel it. {¶ 60} Specifically, Ohio law requires the secretary of state to instr uct and
direct local boards of elections on how to prepare ballot langu age under R.C. 3501.05(C), which requires the secr etary of state to prepare ru les and instructions for the conduct of elections, and R.C. 3501.11(P), which requir es boards of elections to “perform other duties as prescribed by law or the rules, directives, or advisories of the secretary of state.” Additionally, the secre tary may act as a fifth voting member of each of the 88 county boards of elections in t he event of a tie vote or disagreement. R.C. 3501.11(X). {¶ 61} Based on these clear and important statutory mandates, I would hold that the secretary of state has the ultimate responsibility and a clear legal duty to ensure that local ballot language is fair, correct, accurate, a nd not misleading or argumentative. For the benefit of all Ohio voters and to guara ntee full access to local self-governance through the ballot box, the secretary of state should beJanuary Term, 2021

23 required to ensure that local boards of elections follow the la w, and thus, the writ
should also issue as to the secretary of state. II. Why the Writ Should Require A dditional Changes to the Ball ot Language {¶ 62} As to the particular ballot language in this case, I agree with the majority that the ballot language containing legal conclusions stating that the use of two potential funding sources w ould violate state law is ina ppropriate. However, I would go farther and require both the secretary of state and the board to follow the law regarding other ballot language. A. Ballot Language on the Selection of Trust-Fund Board Members {¶ 63} The ballot language regarding how trust-fund board members woul d be selected and appointed is inac curate and falls short of suff iciently informing voters of what they are being asked to vote upon. Kilby , 133 Ohio St.3d 184, 2012- Ohio-4310, 977 N.E.2d 590, at ¶ 19; Cincinnati for Pension Reform , 137 Ohio St.3d 45, 2013-Ohio-4489, 997 N.E.2d 509, at ¶ 23-26

. The proposed charter amendment outlines respondent Cin cinnati City Council’s role in appointing
members to the trust-fun d board, in part, as follows:

c) If any organization with authority to make a nomination under this Article cannot for any reason, or fails to submit it s nomination to the Clerk within 30 days from the receipt of noti ce of a vacancy from the Clerk, the President Pro Tem shall make such nomination, subject to the approval of Council within 30 days. d) If there is no successor to any organization referenced herein, the nomination shall be made by the President Pro Tern of Council, subject to the approval of Council

. e) A member shall serve until her successor takes office.S UPREME C OURT OF O HIO

24 f) Council shall confirm all nominations for appointment at the next meeting of Council.

(Emphasis added.) {¶ 64} First, the inclusion of the wor d “unelected” in the ballot lang uage to describe the members of the tr ust-fund board is unnecessarily a rgumentative. Under the proposed amendment, while the board members are not t o be elected, they are to be appointed by city council. The argumentative nature of the word “unelected” is made worse by the omission from the ballot langu age of city council’s role in the appointment of trust-fund board members. The language of the proposed amendment does not limit city council’s role to a mechanical adoption of the nominees. Under the language of the proposed charter am endment, city council has nominating power, approval power , and confirmation power. Its role is not immaterial. Even though the proposed charter amendment’ s language requires city council to approve c ertain duly made nominations, the amendment contains language that require s city council through its presid ent pro tempore to make other nominations and submit the nominations to city counc il for its discretionary approval. {¶ 65} Because the ballot language does not accurately and without argument describe the process of how individuals will become me mbers of the trust-fund board, “leav[ing] voters to speculate about who sele cts the [trust-fund board] members,” State ex rel. Voters First v. Ohio Ballot Bd. , 133 Ohio St.3d 257, 2012-Ohio-4149, 978 N.E.2d 119, ¶ 34, and failing “to properly identify one of the key elements of the proposed * * * amendment,” id. at ¶ 37, I would require the board and the secretary of state to revise this ballot language so that it accurately
describes the trust-fund boar d and the process of being appoint ed to it.January Term, 2021

25 B. Ballot Language on the Potential Funding Sources {¶ 66} In describing the potential funding sources for the trust fund in the ballot summary, the board of elections replaced the proposed ch arter amendment phrase “from among” with the phrase “to be paid from,” and by doing so, it unnecessarily obfuscated the ballot language. The majority opi nion says that the use of the disjunctive word “or ” plainly indicates that funding need not be drawn from each of the listed sources, citing In re Estate of Centorbi , 129 Ohio St.3d 78, 2011-Ohio-2267, 950 N.E.2d 505, ¶ 18 (“use of the word ‘or,’ a disjunctive term, signifies the presence of altern atives”). While we have found the use of the word “or” to signify alternatives, the language at issue in Centorbi was not structured similarly to the language in the proposed charter amendment. I n Centorbi , the choices relating to the use of the word “or” were essentially l imited to two options,
which is not the situation here. See id. at ¶ 17. {¶ 67} Here, the proposed charter amendment permits funding from a combination of sources by using the phrase “from among.” But u sing in the ballot summary the phrase “to be paid from” in conjunction with a numb ered list in which the word “or” appears only before the last alternative creates the impression that only one alternative may be sel ected from the numbered list. {¶ 68} Because the language of the proposed charter amendment expressl y permits funding “from among” a number of different sources, I s ee no reason for changing what is actually fewer words that are unambiguous to m ore words that dissemble the proposal’s meaning. The clear and correct langua ge used in the proposed charter amendment—“fro m among”—was unnecessarily modif ied in the ballot language and does not prope rly describe the proposed ame ndment. R.C. 3505.06(E). For this reason, I would extend the writ to requir e the use of the two simple words from the propos ed charter, “from among.” {¶ 69} Additionally, the ballot language omits a potential funding sou rce that must be included for any Ci ncinnati voter to make an infor med choice onS UPREME C OURT OF O HIO

26 whether to vote to amend the city charter. See Kilby , 133 Ohio St.3d 184, 2012- Ohio-4310, 977 N.E.2d 590, at ¶ 19; Cincinnati for Pension Reform , 137 Ohio St.3d 45, 2013-Ohio-4489, 997 N.E.2d 509, at ¶ 23-26. The prop osed charter amendment provides: “Nothing herein shall be construed to permi t the council to raise revenue for purpose of thi s Article through an increase i n the rate of income
tax unless the issue is first submitted to a vote of the electo rate.” City council argues that including this potential source of funding in the b allot summary would be misleading because, in its opinion, it is a “theoretical fut ure tax” and it therefore
should not be included on the ballot. {¶ 70} Omitting ballot language about a voter-approved tax increase to help cover the proposed $50 million a ppropriation will deny voters r eading the ballot language the right to know what it is they are being asked to v ote on. Omitting the fact that voter approval is requi red for the city income-tax ra te to be increased to help fund an additional $50 milli on appropriation instead of ta king that money from the present and succeeding budgets denies voters information th at surely might move them one way or another conc erning the proposed charter am endment. For instance, some might like the idea of controlling their municip al-taxation destiny through an “automatic” referendum to decide whether they will p ay more taxes. But others might harbor doubts a bout whether a tax increase wou ld ever occur and may fear the impact of a $50 million budgetary loss on vital ci ty services in each municipal budget cycle. {¶ 71} In short, information about whether a tax increase as a potenti al funding source for the $50 million appropriation is subject to voter approval is
critical to a voter’s understandi ng of the consequences of mand ating that $50 million come “off the top” of any new city budget for the purpo ses of the housingtrust fund. Had this kind of transparency been observed in cre ating the ballot language, there would have been little need to include language that is not in the proposed charter amendment sta ting that the $50 million appropr iation in eachJanuary Term, 2021

27 budget cycle would come from “funding sources otherwise dedicat ed to providing for essential City services and public infrastructure needs.” In section I of the first separate opinion, the author dis cusses problems with this langu age, and I concur with section I of that opinion a nd agree that a writ should iss ue as to this language. The above-quoted language does not comport with R.C. 3505.06, b ecause it is inaccurate and misleading for the reasons stated in the separat e opinion and therefore does not properly describe the proposed charter amendment. A writ should issue to require the board of elections to modify this p ortion of the ballot language. Similarly, and contrary to city council’s argument, the proposed taxincrease-funding-source language is not theoretical; nor is it prohibitory—it is explanatory and forms a proper de scription of the proposed char ter amendment and should be included as part of the ballot language.
III. Conclusion {¶ 72} For these reasons, I join the majority’s decision to grant the writ concerning the ballot language t hat involves legal conclusions regarding two potential funding sources, but I would extend the writ beyond w hat the court grants. I would extend the writ to the secretary of state for the statu tory reasons stated above. And I would require the board of elections to certify to the secretary of state new language in accordance with its duty under the law to properly describe the proposed charter amendment fr ee from argumentative, inaccur ate, or misleading language, with the secretary in turn being required to exercise his powers under R.C. 3501.05 and to ensure that the local ballot l anguage complies with R.C. 3505.06(E) and “properly describes the question, issu e or * * * amendment proposed.” {¶ 73} Relators are entitled to this relief, having properly circulate d and
received certification of a valid petition for a charter amendm ent to be submitted to the electors of the city of Cincinnati for the May 4, 2021 prim ary election. Most importantly, the electors of the city of Cincinnati are entitle d under R.C. 3505.06(E)S UPREME C OURT OF O HIO

28 to ballot language that properly describes for them just what t hey are being asked to vote on concerning the proposed charter amendment. Accordin gly, I concur in the majority’s judgment in part and dissent in part.
D ONNELLY , J., concurs in the foregoing opinion.

_________________ McTigue & Colombo, L.L.C., Donald J. McTigue, J. Corey Colombo, Derek S. Clinger, and Ben F.C . Wallace, for relators. Joseph T. Deters, Hamilton County Prosecuting Attorney, and Dav id T. Stevenson and Jesse K. Daley, Assistant Prosecuting Attorneys, for respondent Hamilton County Board of Elections. Dave Yost, Attorney General, and Heather L. Buchanan and Caitly n N. Johnson, Assistant Attorneys General, for respondent Ohio Secre tary of State Frank
LaRose. Andrew W. Garth, Cincinnati Cit y Solicitor, Emily Smart Woerner , Deputy City Solicitor, and Erica Faaborg, Assistant City Solicitor, fo r respondent Cincinnati City Council. Lazarus & Lewis, L.L.C., Stephen S. Lazarus, and Kimberly Rutow ski, urging denial of the writ for a micus curiae Cincinnati Fraterna l Order of Police, Queen City Lodge No. 69. Vorys, Sater, Seymour & Pease, L.L.P., Jacob D. Mahle, Petra G. Bergman, and John J. Kulewicz, urging denial of the writ for amici curia e Keep Cincinnati Beautiful; Ohio Council 8, American Federation of State, County and Municipal Employees, AFL-CIO; and The Port of Greater Cincinnati Developm ent Authority. Minnillo Law Group Co., L.P.A., and Robb S. Stokar, urging deni al of the
writ for amicus curiae Cincinna ti Organized and Dedicated Emplo yees, Inc.

_________________