[author: Nathaniel Goldfinger]

This week the Ohio Supreme Court denied three Ohio counties’ attempts to ban high-volume hydraulic fracking. But that denial was procedural, not substantive, so the victory is limited to the instance at hand and the counties are free to try again.

Earlier this summer, citizens of Medina, Fulton, and Athens counties petitioned their respective Boards of Elections to place on the November 3, 2015, general election ballot a measure to introduce a new county charter that would increase the ability of the electorate to make laws through popular voting methods, such as initiatives and referenda. The target of these proposed charters was to ban high-volume hydraulic fracking as well as new oil or gas exploration in each county. Following ballot protests filed by county electors against the petitions, Ohio Secretary of State Jon Husted invalidated the petitions and struck them from the November ballot. In August, the petitioners challenged Secretary Husted’s decision by seeking a writ of mandamus from the Ohio Supreme Court, asking the Court to order Secretary Husted to certify their petitions and allow their proposed charters on the ballot. The Ohio Supreme Court denied the petitioners’ requests and upheld Secretary Husted’s decision to block the county charters from a general election vote this November.

But the victory for the oil and gas industry is severely limited. Although the court upheld the Ohio secretary of state’s authority to keep the proposed county charters off the ballot, it did so based on procedural rather than substantive reasons. Ohio Revised Code Section 307.95(C), which provided the basis for the court’s decision, grants the Ohio secretary of state the authority to “determine the validity or invalidity of [a] petition” for a proposed ballot measure. Here, Secretary Husted held the charter petitions invalid on two separate grounds:

1) the proposed charters violate the procedural requirements of Article X, Section 3 of the Ohio Constitution and Ohio Revised Code Section 302.02 by referencing the status quo regarding the selection of a county executive instead of expressly stating the manner of election or appointment of a county executive; and

2) the proposed charters’ prohibition on hydraulic fracking infringes on the state’s sole and exclusive authority to regulate oil and gas extraction.

Holding that Secretary Husted’s authority to determine the validity of a petition applies only to procedural matters and does not extend to merit-based judgments, the court rejected Secretary Husted’s second argument. The court held that Secretary Husted lacked authority to determine that the charters violated state oil and gas law and to deny them on that basis. Rather, Secretary Husted’s sole authority to block the petitions derived from his power to assess their procedural validity.

In sum, based upon the decision, the Ohio secretary of state lacks authority to thwart a proposed ballot measure based on a constitutional or legal objection to the measure’s substance. In fact, an unconstitutional or otherwise illegal petition may still constitute a proper ballot measure; a ballot measure may be deemed substantively unconstitutional or illegal only by a court. Therefore, in the future, county petitions to prohibit oil and gas extraction and exploration will likely make the ballot and be subject to popular vote; recourse may be sought only in a court of law.