People For the American Way Foundation

Biden Judge Casts Deciding Vote Requiring State Attorney General to Allow Proposed Constitutional Amendment on Qualified Immunity to Go Forward

Biden Judge Casts Deciding Vote Requiring State Attorney General to Allow Proposed Constitutional Amendment on Qualified Immunity to Go Forward

Judge Andre Mathis, nominated by President Biden to the court of appeals for the Sixth Circuit, cast the deciding vote in a 2-1 decision that reversed a lower court and required the Ohio Attorney General to submit to a state ballot board a proposed amendment to the state constitution restricting qualified immunity so that the process of trying to amend the constitution can proceed. Judge Mathis joined an opinion written by Judge Karen Nelson Moore, who was nominated by President Clinton, and to which Trump nominee John Bush dissented. The May 2024 decision was in Brown v Yost.

 

What is the background of this case?

 Since 2023, a group of Ohio voters has worked put an initiative on the 2024 ballot that would abolish qualified immunity for alleged abuse by police officers. Under Ohio law, initiative proponents must submit 1000 signatures, the proposed language, and an explanation of the amendment to the state attorney general. If he rejects the summary as inaccurate, they must start the process again. The proponents had to follow that process six times, because Republican Attorney General Dave Yost has rejected proposed explanations all six times.

Yost’s most recent rejection occurred on March 14, 2024. Since some 400,000 signatures by July 3, 2024 are necessary to qualify the initiative for the ballot, the voters went to the state supreme court to seek an order directing the Attorney General to certify their proposal. The state court, however, refused to expedite the proceedings. As a result, the voters filed a complaint in federal court in Ohio, seeking prompt relief.

Specifically, the voters contended that Yost’s use of the attorney general review requirement to block their initiative violated the First and Fourteenth Amendments and sought a preliminary injunction requiring him to certify the initiative so the process could go forward. The district court declined, and the voters appealed to the Sixth Circuit.

 

How did Judge Mathis and the Sixth Circuit Rule and Why is it Important?

 Judge Mathis’ vote made possible a 2-1 ruling by Judge Moore that reversed the lower court and granted a preliminary injunction against Yost, which requires him to send the ballot question and summary to the state ballot board. This will allow the initiative proponents to seek to gather the necessary 400,000-plus voter signatures by the July 3 deadline to put it on the November ballot.

Judge Moore carefully analyzed the record in the case and relevant precedent. She explained that Yost’s refusal to certify the initiative imposed a “severe burden” on proponents’ First Amendment rights by “restricting one-on-one communication between petition circulators and potential signatories” and by “making it less likely” that proponents “will be able to garner the necessary signatures” on time “to be placed on the ballot.” Judge Moore found that the AG review process was not “narrowly tailored” to achieve the state’s legitimate interests, moreover, because Yost could have, for example, supported expedited review by the state supreme court.

Judge Moore thoroughly reviewed and rejected numerous contrary arguments by the dissent and by Yost. For example, Judge Moore wrote, the dissent maintained that the voters have not suffered an injury caused by Yost because they can use “alternate avenues of expression” like the news media. As Judge Moore pointed out, however, this argument “has been expressly rejected by the Supreme Court.”

Proponents of eliminating qualified immunity for police in Ohio have much more work to do, particularly in light of time constraints and additional signature and voting requirements. The decision made possible by Judge Mathis’ deciding vote is nonetheless very important because it gives them a realistic opportunity to achieve their goal. It also sets and reinforces significant precedent concerning the ability of proponents to get state constitutional amendments on the ballot, particularly in Ohio and elsewhere in the Sixth Circuit, which also includes Michigan, Kentucky, and Tennessee.  In addition, the ruling serves as an important reminder of the significance of promptly confirming fair-minded nominees to our federal courts.