Resolute Square

The Rule Of Law(lessness)

Published:June 1, 2023
Just how lawless is the GOP attack on the Ohio Constitution? "Brace yourself," says David Pepper

*Published with the generous permission of David Pepper. Read and watch more of David's work at Pepperspectives.

By David Pepper

The latest GOP attack on Ohio’s Constitution (trying to sneak a Constitutional Amendment through an August special election) is outrageous in so many ways—a glaring symbol of how desperate the far-right is EVERYWHERE to avoid our nation’s and states’ pro-choice majorities. It’s also the lobbyists’ and special interests’ dream—a path to eliminate the power of the people themselves as the last remaining check on the special interest lock on Ohio’s statehouse politicians.

But of all the outrages, one thing we should not overlook is just how lawless the whole thing is, from start to finish. It’s a case study of what happens as one lawless act builds into another, ultimately erasing any semblance of the rule of law in an entire state. And how dangerous that is to democracy and basic rights.

As I review in the video above, there are multiple layers of lawlessness to this monstrosity:

The body pushing the Amendment (which would up the threshold for passage of future citizen-led Amendments to 60%) is itself considered the most corrupt statehouse in the nation, so much so that its recent Speaker will be sentenced to prison in the coming weeks for the largest bribery scandal in the history of Ohio. More broadly, the statehouse is dominated by special interests and a pay-to-play culture. Such a broken institution cries out for reform—not a seizing of more power directly from the people themselves, which only further buffers those special interest agendas from the interests of the people.

The body spearheading this attack on the Ohio Constitution is itself in power in violation of the Ohio Constitution. Remember, statehouse leaders are the ones who violated the Ohio Constitution and Ohio Supreme Court orders five times as they rigged their own districts in 2022. And after all was said and done, they were elected on a map that also was found to be in violation of the Ohio Constitution (nevertheless, the election on that illegal map occurred after two Trump-appointed federal judges demanded it, against clear precedent, as the best of bad options). This means that not only are these legislators governing with questionable legitimacy, but they have an artificially high majority. That illegally inflated majority is the only reason they had the votes needed to pass their Resolution calling for the Amendment to the Ohio Constitution.

The date of the special election—August 8—is not a legally permissible date on which to have a statewide election. Why? Because this same legislature banned August special elections only months ago, taking credit as they did so. Of course, once citizens later began circulating petitions to enshrine abortion access into Ohio’s Constitution (through a November election), the legislature and its extremist supporters were stuck—they have to have a special election in August to move the goalposts on the reproductive rights referendum they know would otherwise succeed. So they quickly advanced a bill to rescind their own ban on August special elections (a confession, of course, that they know that prior law needs to be rescinded to legally have an August election). But then they fell short of the votes needed to rescind that law, so the bill died—that’s right, the ban on special August elections has never been rescinded! So what does America’s most corrupt legislature do? They simply pass a resolution demanding an August special election, knowing full well that such an election violates the Ohio Revised Code.

This and other legal disputes (e.g. they approved Orwellian ballot language that tilts heavily in favor of passage of the measure) will be settled by the Ohio Supreme Court soon. But again, here, the rule of law problem is manifold. One, at the same time that the legislature ignored the newly independent Supreme Court throughout 2021 and 2022, they also changed the rules of Ohio Supreme Court elections to make them openly partisan (prior to 2022, judicial candidates did not carry partisan labels)—which achieved their goal of forging a highly partisan, 4-3 court majority last November. Throw in one swing justice who is the son of the sitting Governor who refuses to recuse himself in major cases involving his father, another who likens abortion to slavery, and a third (recently appointed) who has such a long history of trading personal and family favors with both the Governor and his fellow Justice (and son of the Gov) that one paper called it “incestuous,” and you might forgive Ohions paying attention for doubting that the clear illegality of an August election will get a fair airing.

Bottom line: this is all outrageous. And lawless. A sign of the abject fear these people have of a straight-up vote on issues such as abortion access.

At this point, rather than expecting elected officials, including judges, to sort out these obvious problems, it will almost inevitably be left to the voters to see through this outrageous and illegal power grab and crush it in August. (Future newsletters will keep you abreast on how you can make this happen).

But beyond Ohio, this is also a warning to all parts of this country: once you allow lawlessness to topple a first or second domino, the other dominoes follow very quickly. And when they’re done falling, the rule of law itself may be gone.