Incentives matter. Which is why Ohioans have much to celebratethis week.
Federal District Judge Michael Watson turned his previous temporary injunction against enforcement of Senate Bill 47 into a permanent injunction. That statue outlawed non-residents from helping Buckeye State residents by gathering petition signatures for an initiative or referendum.
The case is Citizens in Charge v. Husted. Citizens in Charge — where I work — protects initiative rights. Jon Husted is the Ohio Secretary of State.
But Judge Watson went further, declaring Sec. Husted’s office liable for damages to one of our co-plaintiffs, Cincinnati for Pension Reform. The judge found that “a reasonable official would have understood that enforcement of the residency requirement would violate plaintiffs’ First Amendment right to engage in political speech.”
Public officials have what’s known as “qualified immunity,” which protects them from liability when acting in good faith. A spokesman for Husted offered a defense: they were acting “on the assumption that the law is constitutional.”
“Some qualified-immunity cases are difficult,” countered election-law expert Daniel Tokaji. “Not this one.”
Ohio’s residency law was ruled unconstitutional in 2008, after Ralph Nader’s presidential campaign sued. In 2009, the previous secretary of state officially acknowledged the law unenforceable regarding all petitions. Yet, seeking to block citizen petitions, legislators passed it again, and Husted was quick to enforce.
Maurice Thompson of the 1851 Center for Constitutional Law, our attorney, cheered the “deterrence” this decision provides.
“If public officials from the governor down through the police know that they will be liable for enforcing an unconstitutional law,” he explained, “they are far more likely to take Ohioans’ constitutional rights seriously.”
This is Common Sense. I’m Paul Jacob.