Supreme Court of Ohio Clerk of Court - Filed March 20, 2023 - Case No.

2023-0388

Case No. ______________

Supreme Court
of the State of Ohio
STATE OF OHIO ex rel. MARGARET DeBLASE,
and
STATE OF OHIO ex rel. JOHN GIROUX,
Relators,
v.
OHIO BALLOT BOARD,
and
FRANK LaROSE, Chairman, Ohio Ballot Board, and

THERESA GAVARONE, Member, Ohio Ballot Board, and

PAULA HICKS-HUDSON, Member, Ohio Ballot Board, and

WILLIAM N. MORGAN, Member, Ohio Ballot Board, and

ELLIOT FORHA, Member, Ohio Ballot Board, and

NANCY KRAMER, Member, Committee to Represent the Petitioners, and

AZIZA WAHBY, Member, Committee to Represent the Petitioners, and

DAVID HACKNEY, Member, Committee to Represent the Petitioners, and

JENNIFER McNALLY, Member, Committee to Represent the Petitioners, and

EBONY SPEAKES-HALL, Member, Committee to Represent the Petitioners,

Respondents.

Original Action in Mandamus

VERIFIED COMPLAINT FOR WRIT OF MANDAMUS

Counsel for Relators: Counsel for Respondents Ohio Ballot Board
Curt C. Hartman (0064242) and its Members:
The Law Firm of Curt C. Hartman David Yost (0056290)
7394 Ridgepoint Drive, Suite 8 Ohio Attorney General
Cincinnati, Ohio 45230 Julie Pfeiffer (0069762)
(513) 379-2923 Chief, Constitutional Offices Section,
[email protected] Office of the Ohio Attorney General
30 E. Broad Street, 16th Floor
Columbus, OH 43215
(614) 466-2872
[email protected]

Counsel for Respondents Members of the

Committee to Represent Petitioners:
Donald J. McTigue (0022849)
McTigue & Colombo, LLC
545 East Town Street
Columbus, OH 43215
(614) 263-7000
[email protected]
 SUPREME COURT
OF THE STATE OF OHIO

STATE OF OHIO ex rel. MARGARET DeBLASE : Case No. ___________

℅ Curt C. Hartman, Legal Counsel :
7394 Ridgepoint Drive, Suite 8 :
Cincinnati, Ohio 45230, :
:
and :
STATE OF OHIO ex rel. JOHN GIROUX :
℅ Curt C. Hartman, Legal Counsel :
7394 Ridgepoint Drive, Suite 8 : VERIFIED COMPLAINT
Cincinnati, Ohio 45230, : FOR WRIT OF MANDAMUS
:
Relator, :
:
v. :
:
OHIO BALLOT BOARD :
℅ Frank LaRose, Chairman :
Office of the Ohio Secretary of State :
180 East Broad Street, 16th Floor :
Columbus, Ohio 43215 :
:
and :
FRANK LaROSE :
Chairman, Ohio Ballot Board :
Office of the Ohio Secretary of State :
180 East Broad Street, 16th Floor :
Columbus, Ohio 43215 :
:
and :
:
THERESA GAVARONE
:
Member, Ohio Ballot Board,
:
1537 Cedar Lane
:
Bowling Green, Ohio 43402
:
:
and
:
PAULA HICKS-HUDSON :
Member, Ohio Ballot Board :
2633 Robinwood Avenue :
Toledo, Ohio 43610 :
:
and

[ continued on next page ]

 :
WILLIAM N. MORGAN :
Member, Ohio Ballot Board :
8740 Soutsville Pike :
Soutsville, Ohio 43154 :
:
and :
ELLIOT FORHA :
Member, Ohio Ballot Board, :
1520 Oakmount Road, Apt. #2 :
South Euclid, Ohio 44121 :
:
and :
NANCY KRAMER :
Member, Committee to Represent the Petitioners :
955 Urlin Avenue :
Columbus, Ohio 43212 :
:
and :
:
AZIZA WAHBY
:
Member, Committee to Represent the Petitioners
:
2971 Paxton Road
:
Shaker Heights, Ohio 44120
:
and :
:
DAVID HACKNEY :
Member, Committee to Represent the Petitioners :
2918 Huntington Road :
Shaker Heights, Ohio 44120 :
and :
:
JENNIFER McNALLY :
Member, Committee to Represent the Petitioners :
2409 Brentwood Road :
Bexley, Ohio 43209 :
and :
:
EBONY SPEAKES-HALL :
Member, Committee to Represent the Petitioners :
6617 English Oaks Station :
Middletown, Ohio 45044 :
:
Respondents. :

2
 The STATE OF OHIO, by and through Relators MARGARET DeBLASE and JOHN

GIROUX, brings this action in order to obtain the issuance of a writ of mandamus:

to compel Respondents OHIO BALLOT BOARD and the members thereof:

(i) to vacate their decision and determination of March 13, 2023, that, with
respect to the initiative petition purportedly seeking to propose an
amendment to the Ohio Constitution entitled “The Right to Reproductive
Freedom with Protections for Health and Safety,” said petition contains
only one proposed constitutional amendment;

and, pursuant to R.C. 3505.062:

(ii) to issue a determination that the foregoing initiative petition contains

more than one proposed amendment to the Ohio Constitution;
(iii) to divide the foregoing initiative petition into individual petitions, each
containing only one proposed constitutional amendment; and
(iv) to certify the approval of each of the individual petitions containing only
one proposed constitutional amendment to the attorney general.

1. Relator MARGARET DeBLASE is a citizen and qualified elector of the State of Ohio,

residing in Montgomery County.

2. Relator JOHN GIROUX is a citizen and qualified elector of the State of Ohio, residing

in Hamilton County.

3. Respondent OHIO BALLOT BOARD is a body politic and corporate, mandated by

Article XVI, Section 1 of the Ohio Constitution, and provided for by R.C. 3505.061.

4. Respondent FRANK LAROSE is the Ohio Secretary of State and, in such capacity, is

one of the five members of the OHIO BALLOT BOARD, as well as serving as the chairman of

the OHIO BALLOT BOARD.

5. Respondent THERESA GAVARONE is one of the five members of the OHIO

BALLOT BOARD.

3
 6. Respondent PAULA HICKS-HUDSON is one of the five members of the OHIO

BALLOT BOARD.

7. Respondent WILLIAM N. MORGAN is one of the five members of the OHIO

BALLOT BOARD.

8. Respondent ELLIOT FORHA is one of the five members of the OHIO BALLOT

BOARD.

9. Respondent NANCY KRAMER is one of the five members of the Committee to

Represent the Petitioners designated on the preliminary initiative petition at issue herein and, in

such capacity, has or may claim an interest in the transaction that is the subject of this action and

the disposition of the action may as a practical matter impair or impede her ability to protect that

interest.

10. Respondent AZIZA WAHBY is one of the five members of the Committee to

Represent the Petitioners designated on the preliminary initiative petition at issue herein and, in

such capacity, has or may claim an interest in the transaction that is the subject of this action and

the disposition of the action may as a practical matter impair or impede her ability to protect that

interest.

11. Respondent DAVID HACKNEY is one of the five members of the Committee to

Represent the Petitioners designated on the preliminary initiative petition at issue herein and, in

such capacity, has or may claim an interest in the transaction that is the subject of this action and

the disposition of the action may as a practical matter impair or impede his ability to protect that

interest.

12. Respondent JENNIFER McNALLY is one of the five members of the Committee to

Represent the Petitioners designated on the preliminary initiative petition at issue herein and, in

4
such capacity, has or may claim an interest in the transaction that is the subject of this action and

the disposition of the action may as a practical matter impair or impede her ability to protect that

interest.

13. Respondent EBONY SPEAKES-HALL is one of the five members of the Committee to

Represent the Petitioners designated on the preliminary initiative petition at issue herein and, in

such capacity, has or may claim an interest in the transaction that is the subject of this action and

the disposition of the action may as a practical matter impair or impede her ability to protect that

interest.

14. This Court possesses subject matter jurisdiction over this original action pursuant to

Article IV, Section 2(B)(1)(b) of the Ohio Constitution.

Overview of role of OHIO BALLOT BOARD for an initiated constitutional amendment

15. Pursuant to Article II, Sections 1 & 1a of the Ohio Constitution, the people of the State

of Ohio reserved unto themselves the power to proposed amendments to the Ohio Constitution

through an initiative petition process.

16. Pursuant to R.C. 3519.01(A), those seeking to propose an amendment to the Ohio

Constitution by initiative petition must, initially by a written preliminary initiative petition

containing the signature of at least 1,000 registered voters in the State of Ohio, submit the

proposed amendment and a summary thereof to the Ohio Attorney General.

17. Upon receipt of the foregoing preliminary initiative petition, the Ohio Attorney General

is required to conduct an examination of the summary contained on the preliminary initiative

petition in order to determine whether the summary is a fair and truthful statement of the

proposed constitutional amendment.

5
 18. If the Ohio Attorney General determines that the summary contained on the preliminary

initiative petition is a fair and truthful statement of the proposed constitutional amendment, he

shall then certify such determination and forward the petition to the OHIO BALLOT BOARD

for its approval under R.C. 3505.062(A).

19. Pursuant to R.C. 3505.062(A), upon receipt of a preliminary initiative petition from the

Ohio Attorney General, the OHIO BALLOT BOARD is tasked to make a legal determination of

whether the petition proposes only one proposed constitutional amendment.

20. Pursuant to R.C. 3505.062(A), if the OHIO BALLOT BOARD determines that a

preliminary initiative petition contains only one proposed constitutional amendment, it shall

certify its approval thereof to the Ohio Attorney General.

21. Pursuant to R.C. 3505.062(A), if the OHIO BALLOT BOARD determines that a

preliminary initiative petition contains more than one proposed constitutional amendment, the

OHIO BALLOT BOARD is required to divide the petition into individual petitions each

containing only one proposed constitutional amendment and, in turn, to certify its approval of

each individual petition to the Ohio Attorney General.

22. And, if the OHIO BALLOT BOARD determines that a preliminary initiative petition

contains more than one proposed constitutional amendment and, in turn, divides the petition into

individual petitions each containing only one proposed constitutional amendment, then the

petitioners advancing the initiative petition must resubmit to the attorney general appropriate

summaries for each of the individual petitions arising from the BOARD’s division of the

initiative petition for review and pursuant to R.C. 3519.01(A).

6
 Factual Events

23. According to the website of the Ohio Attorney General, on March 2, 2023, Ohio

Attorney General David Yost certified as a fair and truthful statement the summary contained

within a Preliminary Initiative Petition submitted to him pursuant to R.C. 3519.01(A) and

seeking to propose a constitutional amendment. The title of the proposed constitutional

amendment was set forth as “The Right to Reproductive Freedom with Protections for Health

and Safety Amendment”.

24. A true and accurate copy of the Preliminary Initiative Petition with the text and

summary of the proposed constitutional amendment entitled “The Right to Reproductive

Freedom with Protections for Health and Safety Amendment”, as published on the website of the

Ohio Attorney General, is attached hereto as Exhibit A.1

25. A true and accurate copy of a letter dated March 2, 2023, and issued by Ohio Attorney

General David Yost, as obtained from the website of the Ohio Attorney General, setting forth the

determination and certification of the Ohio Attorney General is attached hereto as Exhibit B. 2

26. Respondents NANCY KRAMER, AZIZA WAHBY, DAVID HACKNEY, JENNIFER

McNALLY, and EBONY SPEAKES-HALL are the five members of the Committee to

Represent the Petitioners as designated on the Preliminary Initiative Petition.

27. According to the website of the Ohio Secretary of State, the OHIO BALLOT BOARD

held a meeting on March 13, 2023.

1
Published at https://www.ohioattorneygeneral.gov/getattachment/cf27c10f-b153-4731-
ae9e-e3555a326ed9/The-Right-to-Reproductive-Freedom-with-Protections-for-Health-and-
Safety.aspx.
2
Published at https://www.ohioattorneygeneral.gov/getattachment/565d7148-689a-4cd2-
90e7-d80e5841eb75/The-Right-to-Reproductive-Freedom-with-Protections-for-Health-and-
Safety.aspx.

7
 28. According to the agenda, as published on the website of the Ohio Secretary of State, for

the meeting of the OHIO BALLOT BOARD held on March 13, 2023, the only substantive

business was the examination of a proposed constitutional amendment, entitled “The Right to

Reproductive Freedom with Protections for Health and Safety”, i.e., the Preliminary Initiative

Petition certified by the Ohio Attorney General on March 2, 2023, in order to determine whether

it contains only one proposed amendment.

29. A true and accurate copy of the agenda for the meeting of the OHIO BALLOT BOARD

held on March 13, 2023, as obtained from the website of the Ohio Secretary of State, is attached

hereto as Exhibit C.3

30. An audiovisual recording of the meeting of the OHIO BALLOT BOARD held on

March 13, 2023, is available from the website of The Ohio Channel at https://

ohiochannel.org/video/ohio-ballot-board-3-13-2023.4

31. At the meeting of the OHIO BALLOT BOARD held on March 13, 2023, only two

members of the general public spoke regarding the Preliminary Initiative Petition with respect to

the proposed constitutional amendment entitled “The Right to Reproductive Freedom with

Protections for Health and Safety”, viz., Donald J. McTigue and Relator JOHN GIROUX.

32. As indicated from the audiovisual recording of the meeting of the OHIO BALLOT

BOARD held on March 13, 2023, there was absolutely no discussion or debate whatsoever by

the members of the OHIO BALLOT BOARD as to whether the Preliminary Initiative Petition

with respect to the proposed constitutional amendment entitled “The Right to Reproductive

3
Published at https://www.ohiosos.gov/legislation-and-ballot-issues/ballot-board/.
4
The meeting of the OHIO BALLOT BOARD conducted on March 13, 2023, was also
transcribed by a court reporter. The Office of the Ohio Secretary of State has indicated that, as
of Friday, March 17, 2023, the transcript of the meeting was not yet available.
8
Freedom with Protections for Health and Safety” actually contains only one proposed

constitutional amendment.

33. The only comment made by any member of the OHIO BALLOT BOARD at the

meeting on March 13, 2023, with respect to the Preliminary Initiative Petition with respect to the

proposed constitutional amendment entitled “The Right to Reproductive Freedom with

Protections for Health and Safety” was by Respondent THERESA GAVARONE who wanted it

“noted for the record” that she was pro-Life and that the issue before the BOARD was was she

characterized as “procedural”.

34. Thus, there was no debate or discussion whatsoever by the members of the OHIO

BALLOT BOARD at the meeting of March 13, 2023, as to whether the Preliminary Initiative

Petition with respect to the proposed constitutional amendment entitled “The Right to

Reproductive Freedom with Protections for Health and Safety” actually contains only one

proposed amendment.

35. Nonetheless, on the motion offered by Respondent FRANK LaROSE, the OHIO

BALLOT BOARD determined the Preliminary Initiative Petition with respect to the proposed

constitutional amendment entitled “The Right to Reproductive Freedom with Protections for

Health and Safety” contained only one proposed amendment.

36. On March 13, 2023, the Secretary of the OHIO BALLOT BOARD issued a letter to the

Ohio Attorney General certifying the determination of the OHIO BALLOT BOARD that the

Preliminary Initiative Petition with respect to the proposed constitutional amendment entitled

“The Right to Reproductive Freedom with Protections for Health and Safety” contained only one

proposed amendment.

9
 37. A true and accurate copy of the certification letter issued by the Secretary of the OHIO

BALLOT BOARD to the Ohio Attorney General, as provided to undersigned counsel by the

Office of the Ohio Secretary of State, is attached hereto as Exhibit D.

Legal requirements for a single proposed constitutional amendment

38. “In extraordinary actions challenging the decisions of the Secretary of State and boards

of elections, the standard is whether they engaged in fraud, corruption, or abuse of discretion, or

acted in clear disregard of applicable legal provisions.” State ex rel. Husted v. Brunner, 123

Ohio St.3d 288, 915 N.E.2d 1215, 2009-Ohio-5327 ¶9 (quoting Whitman v. Hamilton Cty. Bd. of

Elections, 97 Ohio St.3d 216, 778 N.E.2d 32, 2002-Ohio-5923 ¶11). “This standard also applies

when evaluating a ballot-board decision to divide a proposed constitutional amendment into

separate ballot measures.” State ex rel. Ohioans for Secure & Fair Elections v. LaRose, 159

Ohio St. 3d 568, 152 N.E.3d 267, 2020-Ohio-1459 ¶14; accord State ex rel. Ohio Liberty

Council v. Brunner, 125 Ohio St.3d 315, 928 N.E.2d 410, 2010-Ohio-1845 ¶30 (“[t]his standard

is also appropriate for gauging the propriety of the ballot board’s determination here”).

39. The determination of the OHIO BALLOT BOARD and its members that the

Preliminary Initiative Petition, i.e., Exhibit A, contained only one proposed amendment to the

Ohio Constitution constitutes an abuse of discretion and/or an act in clear disregard of applicable

legal provisions.

40. “Because this separate-petition requirement is comparable to the separate-vote

requirement for legislatively initiated constitutional amendments under Section 1, Article XVI of

the Ohio Constitution, [this Court’s] precedent construing the constitutional provision is

instructive in construing the statutory requirement.” State ex rel. Ohio Liberty Council v.

Brunner, 25 Ohio St. 3d 315, 928 N.E.2d 410, 2010-Ohio-1845 ¶41.

10
 41. “[A] proposal consists of one amendment to the Constitution only so long as each of its

subjects bears some reasonable relationship to a single general object or purpose.” State ex rel.

Willke v. Taft, 107 Ohio St.3d 1, 836 N.E.2d 536, 2005 Ohio 5303 ¶34 (quoting State ex rel.

Roahrig v. Brown, 30 Ohio St.2d 82, 84, 282 N.E.2d 584 (1972)).

The text of the Proposed Constitutional Amendment

42. As indicated in the Preliminary Initiative Petition, the Proposed Constitutional

Amendment, in its entirety, reads as follows:

FULL TEXT OF PROPOSED AMENDMENT

Be it Resolved by the People of the State of Ohio that Article I of the Ohio
Constitution is amended to add the following Section:

Article I, Section 22. The Right to Reproductive Freedom with Protections for Health and
Safety
A. Every individual has a right to make and carry out one’s own reproductive decisions,
including but not limited to decisions on:
1. contraception;
2. fertility treatment;
3. continuing one’s own pregnancy;
4. miscarriage care; and
5. abortion.
B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or
discriminate against either:
1. An individual’s voluntary exercise of this right or
2. A person or entity that assists an individual exercising this right, unless the State
demonstrates that it is using the least restrictive means to advance the individual’s
health in accordance with widely accepted and evidence-based standards of care.
However, abortion may be prohibited after fetal viability. But in no case may such
an abortion be prohibited if in the professional judgment of the pregnant patient’s
treating physician it is necessary to protect the pregnant patient’s life or health.
C. As used in this Section:
1. “Fetal viability” means “the point in a pregnancy when, in the professional
judgment of the pregnant patient’s treating physician, the fetus has a significant
likelihood of survival outside the uterus with reasonable measures. This is
determined on a case-by-case basis.”
2. “State” includes any governmental entity and any political subdivision.
D. This Section is self-executing.

11
 The Proposed Constitutional Amendment improperly seeks to place
an “inherently different” and “unique act”
under in the same general category of “one’s own reproductive decisions”

43. The Proposed Constitutional Amendment contains more than one proposed amendment

and, thus, the OHIO BALLOT BOARD abused its discretion and/or acted in clear disregard of

applicable legal provisions when it determined and certified that the Preliminary Initiative

Petition contains and proposes a single constitutional amendment.

44. As developed below, the United States Supreme Court has: (i) recognized that abortion

is “inherently different” than other intimate, personal rights (such as procreation or

contraception), see Roe v. Wade, 410 U.S. 113, 159 (1973); and (ii) described abortion as a

“unique act”, see Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992). Thus, the effort

within the Proposed Constitutional Amendment to include abortion, as well as a right of deciding

whether to continue one’s own pregnancy, with other rights under the rubric of “one’s own

reproductive decisions” does not and cannot relate to a single general object or purpose.

45. As abortion (or deciding not to continue one’s own pregnancy) is “inherently different”

and a “unique act”, it cannot ipse facto relate to a single object or purpose of other matters

concerning “one’s own reproductive decisions”.

46. In Section A, the Proposed Constitutional Amendment proposes to establish or create

an individual constitutional right regarding “one’s own reproductive decisions” and, then, in

turn, attempts to specifically establish various actions under this rubric, i.e., contraception,

fertility treatment, continuing one’s own pregnancy, miscarriage care, and abortion.5

5
Based on information and belief, those advancing the Proposed Constitutional
Amendment have not, to date, provided any explanation of the distinction between a decision
concerning “continuing one’s own pregnancy” versus concerning “abortion” even though the
terms are used separately within the Proposed Constitutional Amendment. In light of such terms
essentially being synonymous, references herein concerning “abortion” as used within the
12
 47. Separately and distinctly from establishing an individual constitutional right, the

Proposed Constitutional Amendment in Section C specifically engages in a separate legislative

action, i.e., line-drawing, with respect to “abortion” which is not limited to or constrained to an

individual’s “own reproductive decisions” but also concerns the interest and rights of a third

party, i.e., the unborn child. (And the same can be said with respect to decisions concerning

“continuing one’s own pregnancy”.)

48. But, by including “abortion” and “continuing one’s own pregnancy” within Section A

of the Proposed Constitutional Amendment as being under the rubric of “one’s own reproductive

decisions,” the Proposed Constitutional Amendment does not and cannot relate to a single

general object or purpose, as “abortion” has been recognized by the United States Supreme Court

as an “inherently different” and “unique act”, and the same logic applies to the synonymous

concept of decisions regarding “continuing one’s own pregnancy”.

49. Thus, decisions regarding “contraception”, “fertility treatment”, and “miscarriage care”

are distinctly and materially different from decisions regarding “continuing one’s own

pregnancy” and “abortion” as used in Section A of the Proposed Constitutional Amendment.

Stated otherwise, decisions regarding “contraception”, “fertility treatment”, and “miscarriage

care” do not relate to the same general object or purpose as decisions concerning “continuing

one’s own pregnancy” and “abortion”.

50. In fact, as acknowledged by Ohio Attorney General David Yost, “every abortion

inflicts the most irreparable harm imaginable – death – on the unborn child”, and the same logic

applies to the synonymous concept of decisions concerning “continuing one’s own pregnancy”.

Proposed Constitutional Amendment can and should also relate to the language in the Proposed
Constitutional Amendment concerning decisions concerning “continuing one’s own pregnancy”.
13
See Preterm-Cleveland v. David Yost, Ohio Supreme Court Case No. 2023-004, Brief in Support

of Jurisdiction of Appellants Dave Yost, et al., at 10.6

51. Furthermore, by including efforts to impose certain legislative requirements specifically

with respect to abortion within Section C of the Proposed Constitutional Amendment but also

including within the Proposed Constitutional Amendment items such as contraception, fertility

treatment, and miscarriage care, the Proposed Constitutional Amendment does not and cannot

relate to a single general object or purpose, as “abortion” has been recognized by the United

States Supreme Court as an “inherently different” and “unique act”, and the same logic applies to

the synonymous concept of decisions “continuing one’s own pregnancy”.

52. In fact, the unique distinction or difference between all intimate personal decisions,

including those relating to reproduction or procreation, on the one hand, and abortion or deciding

on continuing one’s own pregnancy, on the other hand, has repeatedly been recognized and

acknowledged by the United States Supreme Court.

53. As recognized by Justice Blackmun of the United States Supreme Court in Roe v.

Wade, 410 U.S. 113, 159 (1973)(with emphasis added):

The pregnant woman cannot be isolated in her privacy. She carries an embryo
and, later, a fetus, if one accepts the medical definitions of the developing young
in the human uterus. The situation therefore is inherently different
from…procreation….

54. Similarly, in Planned Parenthood v. Casey, 505 U.S. 833, 851 (1992), the United States

Supreme Court acknowledged (with emphasis added) that, while “[o]ur law affords

constitutional protection to personal decisions relating to marriage, procreation, contraception,

family relationships, child rearing, and education” but, on the other hand, “[a]bortion is a unique

6
Available at
https://www.supremecourt.ohio.gov/pdf_viewer/pdf_viewer.aspx?pdf=936103.pdf&subdirectory
=2023-0004\DocketItems&source=DL_Clerk
14
act” to such personal decisions. The former are akin to the nature of the right established in

Section A of the Proposed Constitutional Amendment, except decisions on abortion and

continuing one’s pregnancy, while the latter is akin to what is being legislated in Section C of the

Proposed Constitutional Amendment and also established as a right in Section A of the Proposed

Constitutional Amendment vis-à-vis decisions on abortion and continuing one’s own pregnancy.

55. And, just recently, the United States Supreme Court reiterated once again that

legislation regarding abortion is clearly distinguishable from personal intimate rights of

individuals:

What sharply distinguishes the abortion right from the rights recognized in the
cases on which Roe and Casey rely is something that both those decisions
acknowledged: Abortion destroys what those decisions call “potential life” and
what the law at issue in this case regards as the life of an “unborn human being.”
See Roe, 410 U.S., at 159, 93 S. Ct. 705, 35 L. Ed. 2d 147 (abortion is “inherently
different”); Casey, 505 U. S., at 852, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (abortion
is “a unique act”).

Dobbs v. Jackson Women's Health Org., 597 U.S. __, __, 142 S. Ct. 2228, 2258 (2022)

(emphasis added).

56. If “abortion” or deciding on “continuing one’s own pregnancy” is “inherently different”

from other intimate individualized rights and is also considered “a unique act”, then the

Proposed Constitutional Amendment does not concern a single general object or purpose of an

individual’s (or a woman’s) own reproductive decisions. Furthermore, by providing standards

specific to abortion, the Proposed Constitutional Amendment has gone far afield of an

individual’s (or a woman’s) own reproductive decisions and, instead, also pulls into play the

interests and rights of the unborn child.

57. As the Proposed Constitutional Amendment involves separate and distinct matters, i.e.,

it does not address a single general object or purpose, but the OHIO BALLOT BOARD

15
wrongfully determined, as a matter of law, that the Proposed Constitutional Amendment contains

only one proposed amendment, the OHIO BALLOT BOARD acted in clear disregard of

applicable legal provisions when it determined that the Proposed Constitutional Amendment

contains only one proposed amendment.

58. Additionally, “[t]he failure to exercise discretion is itself an abuse of that discretion.”

Bank of Am. v. Litteral, 191 Ohio App. 3d 303, 945 N.E.2d 1114, 2010-Ohio-5884 ¶24 (2d

Dist.); accord Dickson, Carlson & Campillo v. Pole, 83 Cal. App.4th 436, 449 (2000); see In re

Lloyd's Register N. Am., Inc., 780 F.3d 283, 291 (5th Cir. 2015)(“the court's failure to explain its

decision is an abuse of discretion”); Roop v. Roop, 2006-Ohio-2862 ¶1 (4th Dist.)(“[b]ecause the

trial court offers no rationale to support its modifications, we conclude that those modifications

were arbitrary, and thus, an abuse of discretion”)

59. As the OHIO BALLOT BOARD determined that the Proposed Constitutional

Amendment contains only one proposed amendment but did so without any substantive

comment, discussion, or debate amongst its members as to whether the Proposed Constitutional

Amendment actually contains only one proposed amendment, let alone making any effort to

explain its determination, the OHIO BALLOT BOARD abused its discretion in making that

determination.

CAUSE OF ACTION
Writ of Mandamus

60. Relators incorporates by reference all of the foregoing paragraphs as if fully restated

herein.

61. Relators have standing to ensure compliance with all aspect of election laws, including

those dealing with initiative petitions seeking to propose constitutional law. See State ex rel.

Holwadel v. Hamilton Cty. Bd. of Elec., 144 Ohio St. 3d 579, 45 N.E.3d 994, 2015-Ohio-5306

16
¶41 (“Resident electors have standing to bring mandamus actions to enforce public duties in

election matters”).

62. Relators have a clear legal right to the requested relief as, in determining the Proposed

Constitutional Amendment contains only one proposed amendment, the OHIO BALLOT

BOARD abused its discretion and/or acted in clear disregard of applicable legal provisions, and

Relators have a clear legal right to ensure compliance by a public body with election laws that

limit initiative petitions proposing a constitutional amendment be limited to one proposed

amendment. See State ex rel. Ohioans for Secure & Fair Elections v. LaRose, 159 Ohio St. 3d

568, 152 N.E.3d 267, 2020-Ohio-1459 ¶66 (Kennedy, J., concurring)(“[f]or the remaining

requirements of clear legal right and clear legal duty, in the absence of any evidence of fraud or

corruption, the dispositive issue is whether the ballot board abused its discretion or clearly

disregarded applicable law”).

63. The OHIO BALLOT BOARD and its members have the clear legal duty, under R.C.

3505.062, to divide all initiative petitions that seek to propose more than one constitutional

amendment into individual petitions and to then certify its approval of each individual petitions

to the Ohio Attorney General and, in particular, to do so with respect to the Preliminary Initiative

Petition containing the Proposed Constitutional Amendment set forth in paragraph 42 above.

64. The OHIO BALLOT BOARD and its members have the clear legal duty, under R.C.

3505.062, to actually exercise any discretion it may have under R.C. 3505.062 and to not forego

any analysis and assessment whatsoever in making its determination of whether an initiative

petition seeks to propose more than one constitutional amendment.

65. Relators lack an adequate remedy in the ordinary course of law as R.C. 3505.062

does not provide or afford any person disagreeing with the determination of the OHIO BALLOT

17
BOARD with a statutory right to appeal or otherwise challenge its decision. See State ex rel.

Ohioans for Secure & Fair Elections v. LaRose, 159 Ohio St. 3d 568, 152 N.E.3d 267, 2020-

Ohio-1459 ¶15 (“Ohio-SAFE does not have an adequate remedy, because there is no statutory

right to appeal from a decision of the ballot board”); see also State ex rel. Morgan v. State

Teachers Retirement Bd. of Ohio, 121 Ohio St.3d 324, 904 N.E.2d 506, 2009-Ohio-591 ¶20

(mandamus is an appropriate remedy to correct an abuse of discretion by a public board in a

decision that is not appealable). Additionally, the time constraints on the initiative petition

process precludes a full and complete opportunity to otherwise challenge the abuse of discretion

and/or clear disregard of applicable law by the OHIO BALLOT BOARD.

WHEREFORE, the STATE OF OHIO, by and on relation to Relators MARGARET

DeBLASE and JOHN GIROUX, prays for the issuance, in its name, of a peremptory writ of

mandamus, or, in the alternative, an alternative writ of mandamus:

(i) compelling Respondent FRANK LAROSE, as chairman of the OHIO BALLOT

BOARD to convene a meeting of the OHIO BALLOT BOARD at the earliest

possible date in order to undertake the actions set forth below;

(ii) compelling the OHIO BALLOT BOARD and its members at such meeting to:

a. to vacate their decision and determination of March 13, 2023, that,

with respect to the initiative petition purportedly seeking to propose

an amendment to the Ohio Constitution entitled “The Right to

Reproductive Freedom with Protections for Health and Safety,” said

petition contains only one proposed constitutional amendment;

18
 b. to issue a determination that the foregoing initiative petition, i.e., the

Preliminary Initiative Petition, contains more than one proposed

amendment to the Ohio Constitution;

c. to divide the foregoing initiative petition into individual petitions,

each containing only one proposed constitutional amendment; and

d. to certify the approval of each of the individual petitions containing

only one proposed constitutional amendment to the attorney general;

(iii) any other relief in mandamus to which the law and equities warrant.

Respectfully submitted,

/s/ Curt C. Hartman

Curt C. Hartman (0064242)
The Law Firm of Curt C. Hartman
7394 Ridgepoint Drive, Suite 8
Cincinnati, OH 45230
(513) 752-8800
[email protected]
Attorney for Relators

19
Exhibit A
 Constitutional Offices
Section
Office: 614-466-2872

March 2, 2023

Donald J. McTigue
McTigue & Colombo LLC
545 East Town Street
Columbus, Ohio 43215
[email protected]

Re: Submitted Petition for Initiated Constitutional Amendment to Enact Article I, Section 22
of the Ohio Constitution– “The Right to Reproductive Freedom with Protections for
Health and Safety Amendment”

Dear Mr. McTigue,

On February 21, 2023, in accordance with Ohio Revised Code Section 3519.01(A), I received a
written petition containing (1) a copy of a proposed constitutional amendment, and (2) a summary
of the same measure. One of my statutory duties as Attorney General is to send all of the part-
petitions to the appropriate county boards of elections for signature verification. With all of the
county boards of elections reporting back, at least 1,000 signatures have been verified.

It is my statutory duty to determine whether the submitted summary is a “fair and truthful statement
of the proposed constitutional amendment.” R.C. 3519.01(A). That is, my role is limited to
determining whether the wording of the summary properly advises potential petition signers of a
measure’s material components. If I conclude that the summary is fair and truthful, I am to certify
it as such within ten days after receipt of the petition.

I cannot base my determination on the wisdom or folly of a proposed amendment as a matter of

public policy. “These arguments must be addressed to the electorate,” not to me. State ex rel.
Schwartz v. Brown, 32 Ohio St.2d 4, 11, 288 N.E.2d 821 (1972).

Elected office is not a license to simply do what one wishes. The rule of law necessarily means
that there are limits to the decision-making of those who temporarily exercise public authority.
This is true of prosecutors who will not enforce criminal statutes with which they disagree, or
presidents who wish to take actions not authorized by the Constitution or Congress.

It is also true of attorneys general required by a narrow law to make a decision about the
truthfulness of a summary. My personal views on abortion are publicly known. In this matter, I
am constrained by duty to rule upon a narrow question, not to use the authority of my office to
effect a good policy, or to impede a bad one. A duty that never compels an unpleasant duty or act
is not duty, but self-service, the opposite of public service—government by solipsism. That way
lies chaos, and ultimately the breakdown of self-governance.

30 E. Broad Street, 16th Floor, Columbus, Ohio 43215

www.OhioAttorneyGeneral.gov Exhibit B
I state these first principles because it has become increasingly common for elected leaders to
ignore them when convenient, and the process is accelerating as each side in our perpetual conflicts
expects their own to act as faithlessly as the other side.

Enough.

Having examined the submission, I conclude that the summary is a fair and truthful statement of
the proposed amendment. I am therefore submitting the following certification to the Ohio
Secretary of State:

Without passing on the advisability of the approval or rejection of the measure to

be referred, but pursuant to the duties imposed upon the Attorney General’s Office
under Section 3519.01(A) of the Ohio Revised Code, I hereby certify that the
summary is a fair and truthful statement of the proposed amendment.

My certification of the summary under Section 3519.01(A) should not be construed as an

affirmation of the enforceability and constitutionality of the proposed amendment. See State ex
rel. Barren v. Brown, 51 Ohio St.2d 160, 171, 365 N.E.2d 887 (1977) (holding that the “factual
determination” that a summary is fair and truthful “is the extent of the role and authority of the
Attorney General”). Indeed, there are significant problems with the proposed amendment, and if
adopted, it will not end the long-running litigation on this topic, but simply transform it.

Should the proposal make it to the ballot, those arguments will be properly addressed to the
electorate, as the Ohio Supreme Court suggested.

Yours,

Dave Yost
Ohio Attorney General

cc: Committee Representing the Petitioners

Nancy Kramer
955 Urlin Avenue
Columbus, Ohio 43212

Dr. Aziza Wahby

2971 Paxton Road
Shaker Heights, Ohio 44120

David Hackney
2918 Huntington Road
Shaker Heights, Ohio44120
Jennifer McNally
2409 Brentwood Road
Bexley, Ohio 43209

Ebony Speakes-Hall
6617 English Oaks Station
Middletown, Ohio 45044
 MEETING OF THE OHIO BALLOT BOARD
Pursuant to R.C. 3505.062

Monday March 13, 2023

10:30 A.M.

Senate Finance Hearing Room of the Ohio Statehouse

1 Capitol Square, Columbus, Ohio, 43215

AGENDA

I. Call to Order.

II. Roll Call.

III. Examination of a proposed constitutional amendment, entitled

“The Right to Reproductive Freedom with Protections for
Health and Safety,” to determine whether it contains only one
proposed amendment.

IV. Adjournment.

Exhibit C
Exhibit D