As you may recall, we have previously written about ballot initiatives in California and Ohio that are attempting to provide relief from increasing drug prices. While the California measure has recently qualified for the ballot, the Ohio measure has recently hit a roadblock. PhRMA has filed, through their lawyer, a request that Ohio Secretary of State (SOS), Jon A. Husted, review the some of the signatures submitted on behalf of the initiative.
As previously written, the Ohio Drug Price Relief Act, would require the state to pay no more for medicines that the U.S. Department of Veterans Affairs, who gets a twenty-four percent discount on average manufacturer prices.
In order to be placed on the ballot in Ohio, activists needed to first collect 91,677 signatures to force the state legislature into taking action on the proposal. If the state legislature refused to take action within four months of receiving the proposed law, the activists needed to collect an addition 91,677 signatures for the measure to be placed on the ballot.
Not So Fast
The required signatures were collected, in part, on behalf of several activists and activist groups, including the AIDS Healthcare Foundation. As Bricker & Eckler, LLP, counsel to PhRMA, noted in their letter to Ohio SOS, there are two “statistically and legally significant issues” at stake with regard to the signatures collected.
False Circulator Affidavits
Ohio is one of the few states that require a petition circulator swear under oath that he or she personally witnessed each individual signature on the petition. A circulator affidavit is provided on each initiative petition and must be signed in the presence of a notary public.
According to Christopher N. Slagle, counsel who drafted the letter on behalf of PhRMA, “a sizeable percentage of the part-petitions” have false circulator affidavits because the circulator attested to “having witnessed significantly more signatures than actually appear on the actual part petition.” Mr. Slagle points to one recurring example, where the circulator affidavit swore to 28 signatures, but the part-petition only had one or two signatures. Mr. Slagle attached as reference to his letter a listing of the 6,435 part-petitions (containing 40,612 signatures) that were affected by this potentially illegal move.
In Ohio, failure to provide an accurate number of signatures gathered renders the part-petition invalid. Under Ohio law, “no initiative or referendum part-petition is properly verified if it appears on the face thereof … [that the circulator’s] statement is false in any respect.”
Ohio courts have recognized that the requirement for circulators to accurately list the number of signatures they have witnessed is a reasonable requirement that protects against the fraudulent practice of them adding additional signatures later. Ohio courts, however, also support a reasonable approach where circulators are permitted to demonstrate that their part-petition should not be denied because the signature discrepancies were minor and isolated; and a reasonable explanation for such discrepancies is provided. Here, however, it is clear that 6,435 part-petitions is more than “minor and isolated.” Mr. Slagle believes that allowing circulators to attest to a certain number of signatures under oath and allowing additional signatures to be submitted after the fact “renders the statutory requirement for a circulator to witness signatures effectively meaningless.”
Altered Petitions
The other issue with some of the petitions is that a “significant number” seem to have been altered by someone other than the circulator or the signer. Exhibit B to Mr. Slagle’s letter listed 5,598 part-petitions, representing 118,574 signatures, that contained signatures that were “clearly stricken by someone other than the circulator or signer.”
Ohio law only authorizes three people to strike signatures from a petition before it is filed: the circulator, the signer, and an attorney-in-fact acting pursuant to Ohio law. Mr. Slagle believes that some person, other than one of the three people permitted, struck the questionable signatures and altered the petitions in such a way that the petitions cannot be verified.
It is up to the Board of Elections to determine the validity of a signature on a part-petition, not a “money-making, petition circulat[ing] company[y].” While Mr. Slagle, PhRMA, and concerned citizens everywhere may want these stricken signatures and part-petitions to be invalidated, all that has been asked of at this point in time is that a review take place to determine if the electors involved authorized their attorney-in-fact to strike their signatures.
Conclusion
Two days after Secretary of State Husted asked election officials to take a second look at the more than 171,000 signatures collected in the part-petitions, activists filed suit attempting to stop such a review.
It is interesting to think about why, if the signatures were collected in accordance with the law, the activists would be so concerned about election officials taking a second glance at them? Only time will tell what the outcome is, but we are watching this case closely to see whether the law, or activist emotion, prevails.
I think it is very clear why people are concerned about the “taking a second glance” at the petitions.
First, this tactic significantly shortens the time during which to collect the second round of required signatures probably keeping the initiative off the November ballot.
Second, the referral back to the counties is not what the Ohio Revised Code mandates (ORC 3519.16) “the supreme court of Ohio shall have exclusive original jurisdiction in all challenges to initiative and referendum petitions”. The Secretary of State should have referred this challenge to the Supreme Court.