The US Court of Appeals for the Sixth Circuit on Monday granted an en banc rehearing for a case about procedures for Ohio citizens proposing Ohio constitutional amendments through ballot initiatives.

In order for an Ohio citizen:

[t]o get a proposed constitutional amendment on the Ohio ballot, petitioners must submit their amendment, a summary of their amendment, and one thousand qualified supporting signatures to the Ohio Attorney General. The Ohio Attorney General must then determine if the summary is a fair and truthful statement of the proposed amendment and, if so, certify the summary. Only once the Attorney General certifies the summary may petitioners begin collecting the approximately 400,000 signatures necessary to put the proposed amendment on the ballot.

The appellants are Ohio citizens who sent all the required information to Ohio Attorney General David Yost, but “[o]n at least six occasions, Yost declined to certify Plaintiffs’ summary.” The appellants sued Yost in his official capacity in federal district court to block the enforcement of the law governing certification, Ohio Revised Code § 3519.01, after no success in the Ohio courts. They argued that Yost’s enforcement of the statute “functions as an unconstitutional obstacle to their ballot access and their ability to speak about and advocate for their proposed amendment as they wish, in violation of the First and Fourteenth Amendments.” The district court denied their injunctive relief request and they appealed to the Sixth Circuit.

The appeals court found the enforcement of the Ohio statute to be overburdening on political speech because it “requires Plaintiffs to change their summary without any review of Yost’s decision making.” Additionally, the court found that it would be too difficult for the appellants to get the signatures necessary for the ballot, which limits statewide discussion of the proposed amendment. However, the appeals court recognized that it has to balance the burden on the appellants’ political speech with Ohio’s compelling interests in “‘voter education, fraud deterrence, and the integrity of the initiative process and election.'” So, the appeals court looked for any alternative method that would achieve Ohio’s interests in a less burdensome way for the appellants. It found that one alternative could be moving the Ohio Attorney General’s summary approval to after the 400,000 signature deadline.

Accordingly, the appeals court reversed the district court’s decision, granted the injunctive relief to prohibit enforcement of the Ohio statue, and ordered “Yost to send Plaintiffs’ proposed amendment and the most recent summary to the ballot board for the next phase of the process.”

The en banc rehearing order requires the parties to file notice to the appeals court to express their decision on additional briefing and oral argument, and to propose schedules for both if so, by June 18, 2024, at 12:00 p.m. EST. Afterwards, the parties will await the appeals court’s order for the required materials for the en banc hearing.  Federal law provides that en banc hearings have a panel of all the judges of the appeals court instead of the typical three-judge panels.