A Governor Above the Law?

by Rob Walgate

What if the people of Ohio passed a constitutional amendment limiting nuclear power plants to four specific facilities in four precise locations? What if the energy companies actually wrote the amendment and spent millions to promote it at the polls? And what if shortly after the amendment passed the Governor sat down behind closed doors with the energy companies and cut a very different deal, authorizing eleven statewide nuclear facilities. Would the people of Ohio have the right to cry “foul” and look to the Courts to enforce the Constitution and uphold the measure passed by the voters?

Change just a few words and you have the legal suit Walgate v. Kasich in which the American Policy Roundtable and eight other plaintiffs are suing John Kasich for breaking the law by disregarding the 2009 casino amendment. That amendment authorizes four casinos in four specific locations. Instead the Governor and his casino allies cut a back room deal for eleven facilities. They rammed the statute through the legislature and in the process violated at least three constitutional amendments dating back to 1973.

This is not the first time the Roundtable has asked the Ohio courts to hold a Governor accountable to the law. In 2002 we sued Bob Taft and the Ohio General Assembly because they broke the law and robbed the schools of lottery proceeds. We were granted standing in that case and won a major provision returning over $41 million to Ohio schools.

In the current Roundtable challenge to Governor Kasich, a Franklin County Judge threw out the case claiming the plaintiffs did not have “standing” or the right as citizens to sue the Governor and his agents. This action shocked many legal experts and clearly violated earlier precedent. Now the question of “standing” is before the Ohio Supreme Court. Here is the key issue: if the citizen plaintiffs of Ohio, including organizations and individuals, do not have the right to call for the just enforcement of the Ohio Constitution, then who does have that right and responsibility?

Some will say, “We have elections. Just vote the lawbreakers out of office next time.” A good idea for sure, but what of the damage/harm done in the meantime? The law is the law for everyone and at all times. We don’t elect politicians so that they can make up the law as they wish. We require them to take an oath pledging to defend the law, including due process. When they fail to do so, the Courts must have the courage to say so out loud, regardless of the politics or popularity of the moment. If the Courts fail to defend the Constitution, the message to the Governor is clear: He can make up the rules as he wishes knowing the Courts will turn a deaf ear to citizens seeking a just enforcement of the rule of law.

None of this needed to happen. The Governor and casino owners could have taken their expansion proposal to the ballot and asked the people to authorize 7 more “racinos” and substantive revisions of the Ohio Lottery. Instead the casino cartel tried a short cut, broke the law, and are proving once again that casino gambling and good government don’t mix.

The Ohio Courts should grant the people standing to defend their constitution and then throw the Governor’s illegal plan off the books. The people passed the 2009 casino amendment along with the lottery amendments in the 70’s and 80’s. The people of Ohio should always have the final say on amending their Constitution – not out of state casino owners and their political friends. That’s the way the Constitution is written. Will the Courts have the courage to hold the Governor accountable to the rule of law?

Rob Walgate is vice president of the American Policy Roundtable and Melanie Elsey is its legislative director. The Roundtable is a non-profit media, education and research organization founded in 1980. This article originally appeared on the Roundtable’s website.

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