On September 21, 2018, the Ohio Supreme Court held in State ex rel. Twitchell et al. v. Saferin et al., that the Lucas County Board of Elections (BOE) did not abuse its discretion in denying a writ of mandamus to place a proposed amendment to the Toledo City Charter on the November ballot. Slip Opinion No. 2018-Ohio-3829. An organization called Toledoans for Safe Water proposed the Lake Erie Bill of Rights (LEBOR) initiative to create legal rights for the Lake Erie ecosystem to “exist, flourish, and naturally evolve.” It also recognized the rights of the people of the City of Toledo to a clean and healthy environment. Lake Erie Bill of Rights, Section 1(a). The initiative would “prohibit activities and projects that would violate the bill of rights.” Lake Erie Bill of Rights, Preamble.

The Supreme Court concluded it was proper for the Lucas County BOE to refuse to place the LEBOR on the November ballot because the LEBOR would have created a new cause of action to enforce the newly created rights. The decision in Twitchell echoed the Supreme Court’s holding in State ex rel. Bolzenius v. Preisse, decided on September 14, 2018. As we previously noted in a blog post dated September 18, 2018, the Court found the Columbus Community Bill of Rights exceeded municipal authority because it, too, created a new cause of action.

The Relators in both the Twitchell and Bolzenius cases have filed a motion for reconsideration of the Supreme Court decisions in those cases. In both motions, Relators argued that the Court should have analyzed the constitutionality of House Bill 463. Additionally, the Relators in the Twitchell case pointed to a recent Southern District of Ohio ruling that pre-election content-based censorship of local initiatives by BOEs violate the First Amendment of the Constitution. The BOEs and Amici/Intervening Respondents in both cases have filed memoranda in opposition, and the parties in both cases await final decisions by the Supreme Court.