Critics of Ohio Issue 2 say it could bar 17-year-olds from voting in primaries

Ohio's State Issue 2 would prevent local governments from allowing noncitizens to vote in local elections, but critics say it might also prohibit 17-year-olds from voting in primary elections.

Ohio law allows 17-year-olds to vote in primary elections as long as they turn 18 by the general election in November. Opponents of Issue 2 say language added to the state constitution by the proposed amendment might trump that right if passed.

Supporters of the ballot issue, including House Majority Floor Leader State Rep. Bill Seitz, say the argument is a "red herring" put forth by progressives "whose real goal is to facilitate voting by noncitizens." Seitz, R-Green Twp., was a cosponsor of the bill that put the proposal on the November ballot.

Critics worried about how the proposal would alter the language of Ohio's Constitution are primarily concerned about two changes made to Article V in the section that concerns who may vote. The concerns are based on the replacement of the word "every," with "only" at the beginning of Section 1, and the addition of a new sentence following the first, so that it would read:

• "Every Only a citizen of the United States, of the age of eighteen years … and has been registered to vote for thirty days, has the qualifications of an elector, and is entitled to vote at all elections. No person who lacks those qualifications shall be permitted to vote at any state or local election held in this state…"

These adjustments change the language in the state constitution from what constitutional scholars call a "grant" of the right to vote to a "restriction" of that right. Opponents say the flip to a restriction of the right to vote is what brings into question the age qualification in relation to 17-year-olds voting in primary elections.

"These so called 'plain language constitutional scholars' called Republicans," state Rep. Michael Skindell, D-Lakewood, who coauthored the certified argument against the issue. "The plain meeting of that is only citizens (who are) age 18 have the right to vote."

Skindell appeared at an Aug. 22 Ballot Board meeting to share this concern by attempting to alter the board-approved ballot language for Issue 2.

He said the certified ballot language "does not accurately describe the new restrictions to voting that the constitutional amendment will impose," in part because the explanation adds the words "at least" to the qualifications it lists for age and the 30-day voter registration deadline.

Election 2022: What is State Issue 2? Ohioans to decide on noncitizens' voting rights

Secretary of state says impact on 17-year-olds is a nonissue

Ohio Secretary of State Frank LaRose has maintained that the concern over the language raised by critics is a nonissue, because for a long time the interpretation in Ohio has been that people turning 18 by the general election can help determine the candidates that will appear on the ballot in primary elections.

"(LaRose) is saying one thing in public, but demanding the contrary from the language," Skindell said. "Your office put 'at least' in (the ballot language), it's not in the constitution."

LaRose said he doesn't see any impact on 17-year-olds voting.

"This is something that perhaps I should not get ahead of because it could be the subject of future litigation or whatever else, but I don’t see that changing," LaRose said at a press conference for Issue 2. "The most sort-of concise way to amend the Ohio Constitution was to change that first word in this section, so that it says 'only an elector' can vote in all Ohio elections.”

Seitz said even if opponents are correct that the amendment could prevent 17-year-olds from voting in primary elections, it would take a lawsuit to prevent it, which he and other proponents of Issue 2 consider unlikely.

"It was never our intention to do anything with this amendment beyond slamming shut the door on any future proposal by any local government or by the state General Assembly to permit noncitizens to vote," Seitz said. "Even Nan Whaley agrees that Issue 2 deserves passage." Former Dayton Mayor Nan Whaley is the Democratic candidate for governor running against Gov. Mike DeWine in the upcoming election.

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Few 17-year-olds vote in Ohio primaries

This year, there were 574 Ohio 17-year-olds who voted in the May primary and 135 voted in the August primary, according to data from the Secretary of State's office.

Ohioans who are 17, but turn 18 by a general election were first awarded the right to vote in primary elections in 1981, when that right was codified into state law on the tail end of a social movement to expand the voting rights of young people.

That right had gone unopposed until 2015, after Lt. Gov. Jon Husted, then secretary of state, issued a directive barring eligible 17-year-olds from voting in the presidential primary the next year. He was sued by a group of eligible 17-year-olds in 2016 who won in the Franklin County Court of Common Pleas, and Husted declined to appeal the case since it would not have been heard by an appeals court until a day before the election.

Polls show strong support for Issue 2

With just a week until the Nov. 8 election, polls show the majority of Ohio voters support Issue 2. A recent poll of 1,068 likely Ohio voters conducted by the Baldwin Wallace University Community Research Institute shows 72.9% of respondents strongly support Issue 2, including 62.9% of Democrats, 84.1% of Republicans and 71.8% of independent voters.

The push for the ballot issue came after the village of Yellow Springs voted to allow noncitizens to cast ballots in local elections, but Ohio Secretary of State Frank LaRose ordered officials to table the measure. No noncitizens in Yellow Springs have registered to vote since then.

If Issue 2 passes and someone files a suit, the right of 17-year-olds voting in primary elections could depend on how a court chooses to read the constitutional language, said Steven Huefner, law professor at Ohio State University's Moritz College of Law.

"I am quite comfy believing that the purpose of this amendment is not to change anything about 17-year-olds voting in primaries. The problem is that most courts today are not going to be looking at the purpose alone, they're going to start with the text," Huefner said. "If it says clearly that you have to have these characteristics in any election … on its face it's going to invalidate the statute that allows 17-year-olds to vote."

Nolan Simmons is a fellow in the E.W. Scripps School of Journalism's Statehouse News Bureau.

This article originally appeared on The Columbus Dispatch: Ohio Issue 2 critics: 17-year-olds could lose right to primary vote