Supreme Court Issues Temporary Stay on Ohio’s Qualified Immunity Ballot Initiative
On April 9, a federal appeals court determined that the free speech rights of supporters advocating for the ballot question were likely infringed upon.
The U.S. Supreme Court issued a temporary order on April 10, stopping Ohio voters who back the repeal of the qualified immunity rule from collecting signatures to bring the matter to a future ballot.
Qualified immunity is a judicially established rule that protects government officials, including police officers, from personal liability unless they violate a clearly established legal right. In recent years, civil libertarians have increasingly criticized qualified immunity, arguing that it enables government officials to evade accountability for serious misconduct.
The order from the Supreme Court, referred to as an administrative stay, allows the justices additional time to review Yost’s request to formally block the ruling from the lower court.
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In March 2024, upon reviewing the respondents’ initiative summary, Yost concluded that it “did not fairly and truthfully represent their proposed amendment.” The summary was dismissed due to repeating inaccuracies and omissions previously flagged by the Attorney General in past rejections, according to the application.
Judge Graham remarked that Yost’s repeated refusals of the initiative summaries “achieved a level of hypercorrectness that extended beyond ensuring that citizens could understand what they were being asked to consider.”
For instance, Yost rejected a summary in November 2023 partly because it failed to clarify that the amendment would apply to immunities or defenses available to government actors or any subset thereof. Furthermore, Yost dismissed a March 2024 version that included the phrase “any subject thereof,” indicating that comma placement rendered the added wording confusing while also pointing out some repetitiveness in the language, as noted by the judge.
“The Attorney General might be seen as an adversarial copyeditor, rejecting [respondents’] submissions on technicalities,” Graham stated.
On March 17, Graham imposed a stay on the injunction to enable an appeal by the state. Although the chances of a successful appeal are uncertain, Graham asserted, “it is at least plausible.”
The appeals court indicated that the respondents’ First Amendment rights were likely violated, stating that “the other stay factors do not favor Yost, so we grant [the respondents’] motion to lift the stay.”
This ruling from the Sixth Circuit contrasts with decisions rendered by the Eighth, Tenth, and District of Columbia Circuits, as cited in Yost’s application.
Without the “immediate intervention” from the Supreme Court, Yost will have to adhere to the preliminary injunction and certify the plaintiffs’ summary language, the application warns.
“If allowed to remain, the injunction would cause irreparable damage to Ohio. This injunction alters the state’s near century-long process for amending its Constitution, even though the federal Constitution does not impose such a requirement. It is difficult to imagine a greater violation of Ohio’s sovereignty,” the application states.
Yost expressed in his application confidence that he will prevail in the case, arguing that the respondents’ assertion of a First Amendment violation is unfounded.
“Laws regulating the initiative process itself (as opposed to those that govern supporters’ speech about initiatives) do not engage the First Amendment,” he asserted.
