By Christen Smith

A federal judge ruled Wednesday that only the Ohio Supreme Court can determine whether state law thwarted a citizen advocacy group’s ballot petition against nuclear plant subsidies.

Judge Edmund A. Sargus Jr., of the U.S. District Court for the Southern District of Ohio, denied Ohioans Against Corporate Bailouts’ motion for a preliminary injunction after the group claimed 38 days of its 90-day allowance to collect signatures were wasted in a “blackout period” during which it sought the attorney general’s approval of the petition’s language before circulation could begin.

The group has alleged a well-funded opposition harassed and bribed its petitioners, further complicating its effort to gather 265,774 signatures by Oct. 21. (See Ohio Nuke Petition Misses Signature Deadline.)

“This 90-day period they claim is burdened arises from the Ohio, not the federal, Constitution,” Sargus wrote. “Whether the Ohio Constitution guarantees a full 90-day period for petition circulation, and whether the statute’s requirements ‘burden the 90-day period,’ is a question beyond the jurisdiction of this court. Instead, these questions should be resolved by the Ohio Supreme Court.”

Ohioans Against Corporate Bailouts has led a campaign against Ohio’s House Bill 6 — a $150 million nuclear subsidy program funded with ratepayer surcharges — having begun organizing petition efforts the same day Gov. Mike DeWine signed the legislation in July. The group fell nearly 45,000 signatures short of the count necessary for the referendum’s inclusion on the 2020 ballot, according to documents filed Wednesday.

“We look forward to making our case to the Ohio Supreme Court that the petitioning ‘blackout’ period is an unfair infringement on our constitutional right to referendum,” Gene Pierce, the group’s spokesperson, said in a statement. “Ohioans deserve the opportunity to vote on House Bill 6, and the despicable campaign by supporters of the bill to prevent that should not be rewarded.”

William Rogers, president of Advanced Micro Targeting, the Nevada-based company that managed the referendum effort, said in court documents that he had never encountered a “more hostile environment” in any other state throughout his 30-year career. He said Ohio’s draconian preregistration requirement, coupled with the opposition’s abuse of public records to target petition circulators for harassment and bribery, undercut the group’s efforts. (See Federal Court Waives Ohio Preregistration Law.)

Rogers said he knew in late September that the constant interference would prevent the group from meeting its deadline, so he began contracting with pay-per-signature firms to keep the campaign on track — to no avail. He claims the opposition poached 900 circulators between Sept. 3 and Oct. 21 by offering up $2,100/day to peddle a “fake petition.” AMT, by comparison, paid just $150/day.

Rogers told the court he estimated that it would take about 75 days to gather the necessary signatures and had initially expected circulators would collect around 4,100 per day.

Secretary of State Frank LaRose, the state’s chief election official and a defendant in the lawsuit, argued that the so-called blackout period is an “elections-mechanics rule that sets forth certain procedures for the referendum process” and doesn’t preclude advocates from promoting a petition in public discourse. He said that questions about whether the Ohio statute intends to give petitioners a full 90 days just for collecting signatures is worth exploring, but not in a federal court.

Sargus agreed, noting that the Ohio Supreme Court could give the group the remedy it seeks: a stay of HB 6 and additional time to circulate its petition.

“At the heart of plaintiffs’ claims is [the] proposition that the Ohio Constitution affords them 90 days to circulate a referendum petition, and that their First Amendment rights are violated by the statute because of the blackout period,” he said. “But Ohio courts have not held whether the 90-day period is guaranteed for circulating, or whether the required review by the attorney general violates the Ohio Constitution.”

Tom Becker, spokesperson for FirstEnergy Solutions, said Thursday the court’s decision “ensures that its citizens will have lower electric bills and cleaner air.” The company previously warned that it would resubmit deactivation notices for its Perry and Davis-Besse nuclear plants should the advocacy group succeed in its efforts. FES rescinded deactivation notices for both facilities in July after the state approved HB 6. (See Ohio Approves Nuke Subsidy.)

“We are pleased that our state will continue to benefit from diverse energy resources and that more than 4,000 jobs have been saved at our carbon-free, reliable nuclear power plants,” he said.