COLUMBUS - After Ohio Issue 1 was soundly defeated Tuesday, Ohio legislative leaders had two takeaways: Let's keep working on criminal justice reform. And let's get rid of these pesky constitutional amendments.
On the former, Senate President Larry Obhof, R-Medina, is working with two former political rivals – Franklin County Prosecutor Ron O'Brien, a Republican, and Columbus City Attorney Zach Klein, a Democrat – to come up with new solutions.
The proposed changes include:
- reducing most fourth- and fifth-degree felony drug possession charges to a first-degree misdemeanor. Fentanyl, carfentanil and date rape drugs would remain felony offenses.
- stating a preference that those convicted of misdemeanor drug possession receive treatment and probation, but allowing judges to sentence offenders to county jail if needed.
- allowing those currently in prison for fourth- and fifth-degree drug possession convictions to ask a judge to have those sentences reduced. That would eliminate a felony on their record, which can be a barrier to work.
- expanding opportunities to seal past felony convictions.
- eliminating mandatory prison sentences for nearly all drug offenses. There would be an exception for those convicted of the major drug offender specification – sometimes referred to as the drug kingpin law – for running a large-scale drug operation.
Klein opposed Issue 1, concerned about how it would let certain felons out early and hurt drug courts trying to get people into treatment. But Klein said he agreed with the overall goal.
"I know it was well-intended. I truly believe the status quo just isn’t working," he said.
Obhof said at the post-election Impact Ohio conference Thursday that he was glad Ohioans rejected Issue 1, 63.4 percent to 36.6 percent.
“The Issue 1 campaign, I am proud to say, went down in flames," Obhof said. “I absolutely do not believe that issues like that should be dealt with in the Ohio Constitution.”
But Obhof said he will work with O'Brien, Klein and lawmakers to tackle more nuanced criminal justice reforms, starting in the coming months and continuing into the next two-year legislative session next year.
Cut down on constitutional amendments?
Lawmakers had another takeaway from Issue 1: it's too easy for outside groups to change the state constitution.
"The Ohio Constitution has been used and abused for decades," Obhof said Thursday.
Casino owners successfully modified the Ohio Constitution in 2009. Marijuana companies tried it in 2015. And 2018's Issue 1 was backed by Facebook founder Mark Zuckerberg's advocacy arm and Democratic donor George Soros' Open Society Policy Center.
Ohio lawmakers have long bemoaned the well-funded efforts from strategists and lobbyists to modify the state constitution. But they have done little in the past century to change it.
Now, they want to take a crack at it.
"For too long, it’s been under attack for all the wrong reasons, and we need to address that," said Ohio Speaker Ryan Smith, R-Bidwell.
The effort is also backed by business groups, which often foot the bill to oppose constitutional amendments.
A group of lawmakers and citizens called the Ohio Constitutional Modernization Commission offered one solution in 2017, but the commission was disbanded before the changes could go anywhere, said Mike Curtin, a former Democratic state lawmaker who worked on the proposal.
Their fix included:
- raising the percentage needed to pass a constitutional amendment from 50 percent to 55 percent.
- making it easier for groups to pass a citizen-proposed law by reducing the number of signatures needed to make the ballot and preventing lawmakers from changing it for several years.
Rep. Niraj Antani, R-Miamisburg, offered another idea. He proposed raising the threshold for constitutional amendments to 60 percent, preventing paid signature collectors and increasing the number of signatures needed to make the ballot.
Most ballot proposal groups try to amend the state constitution rather than trying to pass a law. Since 1912, Ohioans have voted on just three of these citizen-backed statutes. The most recent was the indoor smoking ban in 2006.
There's a reason: The state constitution is much more difficult to change. Changing an amendment requires another constitutional amendment and another vote. Under the current setup, groups could pass a citizen-backed law and Ohio's legislators could repeal or revise it soon after.
Making the ballot will already be more difficult in the next four years because of record turnout in Tuesday's election. That's because the number of signatures needed is tied to the last governor's race.
Obhof and Smith haven't detailed what specific changes they want to make, and any proposal would need approved by voters. But Curtin advised legislators not to make constitutional amendments more difficult without giving people another route to the ballot box.
"It will not win wide acceptance without another option," Curtin said.