State ex rel. Bailey v. Celebrezze

Per Curiam. The sole issue before this court is whether the proposed ballot language “is such as to mislead, deceive, or defraud the voters.” Section 1, Article XVI of the Ohio Constitution. Relators contend that the proposed ballot language should be held invalid since it misleads the voters by “improperly” implying that adoption of the amendment will both increase taxes and cause the workers’ compensation system to be transformed into a “profit-making enterprise.” On the other hand, respondents, except for Van Meter, argue, first, that the ballot language properly identifies the substance of the proposal, and, second, that the alleged defects in the ballot language are “too technical and insubstantial to support” relators’ claim. 1 [519] In order to pass constitutional muster, “[t]he text of a ballot statement***must fairly and accurately present the question or issue to be decided in order to assure a free, intelligent and informed vote by the average citizen affected.” Markus v. Bd. of Elections (1970), 22 Ohio St. 2d 197, paragraph four of the syllabus. In resolving the issue herein presented, we recognize the difficulty inherent in formulating ballot language which properly describes any given proposed constitutional amendment. We are also cognizant of the fact that the test for determining the validity of proposed ballot language is not whether the members of this court might have used different words to describe the language used in the proposed amendment, but, rather, whether the language adopted by the ballot board properly describes the proposed amendment. State, ex rel. Foreman, v. Brown (1967), 10 Ohio St. 2d 139, 150. Because of the relative uniqueness of each case and the necessarily subjective nature of any synopsis of a given statute or constitutional amendment, it is difficult to establish firm criteria against which the decisions of the ballot board may be measured. Nevertheless, such criteria do exist and it is appropriate to state that the following are generally applicable to cases of this nature. First, a voter has the right to know what it is he is being asked to vote upon. State, ex rel. Burton, v. Greater Portsmouth Growth Corp. (1966), 7 Ohio St. 2d 34, 37. Second, use of language which is “ ‘in the nature of a persuasive argument in favor of or against the issue***’ ” is prohibited. Beck v. Cincinnati (1955), 162 Ohio St. 473, 474-475. And, third, “the determinative issue* **is whether the cumulative effect of these technical defects [in ballot language] is harmless or fatal to the validity of the ballot.” State, ex rel. Williams, v. Brown (1977), 52 Ohio St. 2d 13, 19; State, ex rel. Commrs. of the Sinking Fund, v. Brown (1957), 167 Ohio St. 71. Testing the proposed ballot language in light of these criteria, it appears that the same is invalid in two respects. First, use of the word “presently” in conjunction with the phrase “at no cost to the Ohio taxpayers,” in the second paragraph of the proposed ballot language, creates the clear impression that, if the amendment is adopted, Ohio taxpayers [520] will be required to bear some of the cost of providing protection to injured workers. This statement creates more than a mere inference that such will transpire. It is in the nature of an argument against adoption of the amendment. While we are reluctant to read too much into this statement, this court is fully aware that effective arguments can be made as easily by what is said as by what is left unsaid, or implied. The second prong of relators’ attack is upon the first phrase in the third paragraph of the proposed ballot language: “This proposed amendment would change the existing nonprofit Ohio workers’ compensation system***.” Respondents urge that “***[t]he ballot language does not state that the proposed amendment would change either the existing state fund or the level of the benefits. It states that it would change the existing system* * *.” This language is subject to the same criticisms as the language contained in paragraph two of the proposed ballot language. The clear inference to be garnered from a perusal of the language is that the “non-profit” system would be changed into something else; presumably, a system that is profit making. To include this language in the ballot is in the nature of an argument and misleads the voters. We find, therefore, that the proposed ballot language, as particularly set forth above, is invalid. Accordingly, the writ of mandamus is allowed, and respondents, members of the Ohio Ballot Board, are hereby ordered to reconvene, forthwith, and adopt ballot language which properly describes the proposed constitutional amendment in order that such may appear on the ballot at the forthcoming general election. Writ allowed. Celebrezze, C. J., Sweeney, Locher, Holmes and Krupansky, JJ., concur. W. Brown and C. Brown, JJ., dissent.