Supreme Court Temporarily Halts Ohio’s Qualified Immunity Ballot Initiative

A federal appeals court ruled on April 9 that the ballot question supporters’ free speech rights were probably violated.

The U.S. Supreme Court is seen in Washington on Feb. 21, 2024. Kevin Dietsch/Getty Images

The U.S. Supreme Court on April 10 issued an order temporarily preventing Ohio voters who support repealing the qualified immunity rule from gathering signatures to place the issue on a future Ohio ballot.

Qualified immunity, a rule created by the courts, shields government officials, including police officers, from individual liability unless the wrongdoer violated a clearly established right. Civil libertarians have become increasingly critical of qualified immunity in recent years, which they say allows government officials to escape liability for sometimes egregious wrongdoing.

The new order came just hours after Ohio Attorney General Dave Yost filed an emergency application with the Supreme Court seeking to put on hold a ruling issued March 14 by the U.S. District Court for the Southern District of Ohio. The district court ordered Yost to “immediately certify” the proposed language, a key step in the process of getting the question on the ballot.

Justice Brett Kavanaugh, acting on behalf of the Supreme Court, halted the district court order for the time being. He directed the respondents—voters Cynthia Brown, Carlos Buford, and Jenny Sue Rowe—who have asked Yost several times to certify proposed language, to file a response with the Supreme Court by 5 p.m. on April 16.

The Supreme Court’s order, called an administrative stay, gives the justices more time to consider Yost’s request to formally block the lower court order.

The respondents’ proposed amendment to the Ohio constitution, titled “Protecting Ohioans’ Constitutional Rights,” would abolish immunity-based defenses for any “government actor” sued for infringing state-constitutional or civil rights.

Ohio’s ballot initiative law requires the state attorney general to review initiative summaries prepared by ballot question supporters before they are circulated to voters in petition form, to make sure they accurately represent the proposed state constitutional amendment, according to Yost’s application.

In March 2024, Yost reviewed the respondents’ initiative summary and concluded that it “was not a fair and truthful representation of their proposed amendment.” The summary was rejected “because it repeated misstatements and omissions that the Attorney General had identified in previously rejected summaries,” the application said.

U.S. District Judge James L. Graham determined on March 14 that the required review violates the First Amendment and issued a preliminary injunction directing the attorney general to “immediately certify” the proposed language.

Yost’s various rejections of the summaries the respondents presented to him “reached a level of hypercorrectness which went beyond ensuring that citizens could ascertain what they were being asked to support,” the judge wrote.

For example, Yost rejected a November 2023 summary partly “because it did not explain that the amendment would apply to immunities or defenses available to government actors or ‘any subset thereof.’” Yost also rejected a March 2024 version that included the “any subject thereof” phrase because he believed “the placement of a comma made the added language confusing,” and because some of the wording was repetitive, the judge wrote.

“The Attorney General, one might say, has played the role of an antagonistic copyeditor, striking [respondents’] work on technical grounds,” Graham wrote.

Graham stayed the injunction on March 17 to allow the decision to be appealed by the state. Although the court cannot predict if an appeal would succeed, “it is at least plausible,” he wrote.

On April 9, the U.S. Court of Appeals for the Sixth Circuit lifted the stay, allowing the district court’s order to be enforced.

The circuit court wrote that the respondents’ First Amendment rights were probably violated and “because the other stay factors do not weigh in Yost’s favor, we grant [the respondents’] motion to lift the stay.”

The Sixth Circuit’s ruling conflicts with decisions made by the Eighth, Tenth, and District of Columbia Circuits, according to Yost’s application.

Without the Supreme Court’s “immediate intervention, the Attorney General will need to comply with the preliminary injunction and certify the plaintiffs’ summary language,” the application said.

“If left in place, the injunction will irreparably harm Ohio. That injunction alters Ohio’s near century-old process for amending its own Constitution, even though the federal Constitution does not require such a process. It is hard to envision a greater affront to Ohio’s sovereignty than that.”

Yost said in the application that he will likely prevail in the case because the respondents’ claim that he is violating their First Amendment rights is invalid.

“Laws that regulate the initiative process itself (as opposed to laws that regulate supporters’ speech about initiatives) do not implicate the First Amendment.”