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Sunday, September 22,2013

Athens won't have anti-frack measure on ballot this year

By David DeWitt

Members of the Athens County Board of Elections have declined to elaborate on their reasons for rejecting a local anti-fracking ballot initiative from going to voters this November.

Meanwhile, the group that originally filed the initiative petition says that it's now too late for the measure to go on the Nov. 5 city ballot.

In August, three election board members voted unanimously to sustain an objection to the citizens' ballot initiative that would have banned deep-shale oil and gas drilling and waste-disposal activities in the city, as well as expressing an intention to penalize fracking polluters upriver from Athens.

The measure had been pushed by the Bill of Rights Committee, an anti-fracking group composed of city and non-city residents. The objection to the BORC's anti-fracking initiative was filed by a separate group of Athens residents represented by local attorneys John Lavelle and Rusty Rittenhouse.

Following the board's decision, an attorney from the Community Environmental Legal Defense Fund, on behalf of the BORC, wrote a letter to the elections board seeking a written explanation for the decision.

On Sept. 19, the elections board issued a response, though it didn't provide any specific reasons for the members' votes.

"We are aware of no legal obligation to respond to your request in the manner in which you have specified," stated the letter signed by board chair Helen Walker and members Aundrea Carpenter-Colvin and Ken Ryan.

Board member Kate McGuckin recused herself from voting on the matter, having signed in support of the petition before she was a Board of Elections member.

The letter said that the board members discussed the matter during its most recent open meeting and had agreed to let their decision speak for itself.

"Each member had in his or her own mind the specific reason for voting to sustain the objection of the protestors and rejecting the petition," the letter said. "However, the board remains unified in its decision, which was based upon the law recited by our counsel Keller Blackburn (county prosecutor) and agreed upon by both you and Attorney Lavelle."

The Board of Elections' letter cites other cases in Ohio where county elections boards have recently approved fracking-ban measures to go to the voters in November.

Lavelle and Associates represented protests of ballot measures in Youngstown and Bowling Green. The protest against the measure in Youngstown was pulled at the last minute, and in Bowling Green the protest was unsuccessful and not sustained by the elections board.

"We are aware of actions in other counties in Ohio similar to the Bill of Rights Committee in Athens County but understand that these actions deal with substantively different procedural matters," the Athens County elections board's letter concluded.

Both of those measures differed from the Athens one in that they did not include language referencing Ohio Revised Code and "jurisdiction" with regard to pollution incidents. They also came in charter amendment form as opposed to a city ordinance here in Athens.

The BORC issued a press release over the weekend in response to the letter.

The response said the board "completely failed" to address the request, and went on to react to the elections board's letter point by point.

The BORC response acknowledged that each member may have had a specific reason in mind.

"But the question was not whether each member had 'in his or her own mind the specific reason,' to reject the petition; the question is what the specific reason was," the BORC said.

Regarding the law as read by Blackburn that was agreed upon during the meeting, the BORC said that the group does agree that evidence and arguments should be presented.

"But by refusing to explain its decision, the BoE has failed to follow the law, implying that the proceeding was only a quasi-hearing requiring no more than a straw vote, a mere show of hands," the committee wrote.

Next, the BORC addressed the comment regarding "substantively different procedural matters," and cited comments from board member Ryan reiterating that the board sees a difference between those charter proposals and the ordinance in Athens.

"The board's assertion that a 'substantive difference' exists between the rights of Athens' citizens and the rights of other Ohio citizens is astonishing," the BORC wrote. "On the contrary, the Ohio Constitution, Article 1, implies that the citizens of all municipalities have equal rights and political powers."

The section in question states that initiative and referendum powers "are hereby reserved to the people of each municipality on all questions which such municipalities may now or hereafter be authorized by law to control by legislative action."

The BORC asserted that if the elections board decision is allowed to stand, it will set a precedent and invalidate all past and future petition initiatives in Athens County.

"Quite apart from the board members' refusal to disclose the reason for their decision, their gratuitous assertion that the citizens of a statutory city like Athens do not enjoy the rights of initiatives and referendum is false and completely unacceptable," the BORC wrote.

BORC spokesperson Dick McGinn said Sunday that it's too late for the initiative to make the ballot this year, and that the group hasn't decided on its next step yet.

He said that they could file an appeal but that with the elections board "stonewalling" them, it makes it more difficult to do so.

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