Dive Brief:

• Whether Ohio voters get the chance to approve or reject a recently enacted $1.5 billion bailout of nuclear and coal-fired power plants is now before the Ohio Supreme Court, following a federal judge's request for a ruling on the meaning of a state constitution provision that gives state legislation opponents 90 days to gather voter signatures to create a ballot issue.

• Ohioans Against Corporate Bailouts, the group opposing House Bill 6, the legislation approved in July creating non-bypassable rate increases on the bills of all customers of investor-owned utilities in the state, went to federal court a week ago. The group did not meet a state deadline to submit a petition to the Ohio Secretary of State with 6% of the state's voters demanding the electric rate increases be put on the ballot in November 2020. 

• The state's constitution gives citizen opponents of a bill 90 days from the date the legislation becomes law to gather valid voter signatures. Ohioans Against Corporate Bailouts said their First Amendment rights had been violated by the Ohio Secretary of State and Attorney General who took 38 of the 90 days to approve the petition used to gather signatures. They wanted the federal court to order the state to give them an additional 38 days.

Dive Insight:

U.S. District Judge Edmund Sargus, Jr. denied the group's request for an injunction but did not entirely drop the case. Instead, he certified five questions of law underlying the case and requested the Ohio Supreme Court to rule on them. 

Most important of these constitutional questions is whether the meaning of the provision in the state constitution gives opponents of legislation just 90 days or whether later changes in state law requiring the attorney general and the secretary of state to take an unspecified amount of time to approve the form and wording of the petition itself before it can be circulated can be counted in the 90 days.

Under the Ohio Supreme Court's Rules of Practice, the parties in this case, namely the Secretary of State, the state's Attorney General and Ohioans Against Corporate Bailouts now have 20 days to file arguments on the issue. The state Supreme Court justices can either answer or decline to answer the request of the federal court. The rules do not specify a time frame for the court to rule. If the court decides to answer the questions, then the case in the federal court would likely proceed, according to Edward Miller, director of the Supreme Court's office of public information.

Ohioans Against Corporate Bailouts also asked Sargus for a stay of a state rule requiring those who collect voter signatures to complete a state form including their names, addresses and phone numbers. They argued that a parallel organization created to support HB 6 and oppose the referendum petition drive with a phony petition of their own had used the forms, which are public record, to "poach" those gathering signatures to place the issue on the November 2020 ballot, either by offering them cash and a one-way plane ticket out of Ohio or by recruiting them. Sargus granted that request, allowing people hired during the last two weeks of the petition drive to skip filing the state form. 

HB 6 would give FirstEnergy Solutions nearly a billion dollars in cash between 2021 and 2027 for its nuclear plants in northern Ohio and about half a billion dollars to subsidize two 1950s coal plants operated by the Ohio Valley Electric Corp. (OVEC)  in southern Ohio and Indiana. OVEC is jointly owned by the state's utilities. HB 6 also set aside about $20 million a year for utility-scale solar farms already approved, while slashing the state's renewable energy mandates to 8.5% by the end of 2026.