With the Athens County Board of Elections slated to certify spring primary ballot petitions on Tuesday, county Prosecutor Keller Blackburn is poised to recommend that an anti-fracking measure be approved for the November election.
The group behind the measure, the Athens Bill of Rights Committee, has sent a letter to the elections board and Blackburn through its attorney requesting the measure be approved for a vote on May 6.
This was after Blackburn was informed by the elections board office, and subsequently notified the group, that Ohio Revised Code stipulates that ordinance petitions must be put before voters only on a general election ballot.
Blackburn reaffirmed his position Friday, saying that he has not received any authoritative legal argument from the group for making an exception to put the question on the primary ballot instead.
"I asked (the BORC's attorney) for any authority at all that they could find in law that didn't create a fatal flaw and would allow this to go on the (spring) ballot," he said. "The group did not respond with any type of authority whatsoever."
Blackburn added Friday that his office has found state precedent showing that, even though the submitted petition carries the May primary date, the local elections board can certify it for the November ballot regardless of a designated date that contradicts state law.
"That is not a fatal flaw, so it will be my advice to the Board of Elections that they should consider this for the general election, and vote up or down on this as a general election petition," he said. "Their mistake does not keep it off the ballot."
He said he also has issued a verbal opinion to the elections board, reiterating his stance that the measure should be on the November general election ballot.
With regard to whether the Board of Elections could still consider approving the measure for the primary ballot as requested in the BORC letter, Blackburn said that his advice would be for them to avoid violating the law.
"The big deal here is that it can't go on the primary ballot. It's not allowed, by law, to go on the primary ballot," Blackburn said. "But they don't have to re-circulate the petitions. This is a lucky situation that the (Ohio) Supreme Court has specifically spoken to the fact that putting the wrong date on the petitions does not make it fatally flawed."
In January, the BORC submitted a re-written ballot proposal to ban fracking and related activities in the city of Athens. A similar proposal was rejected by the Athens County Board of Elections in August after an objection was raised by a group of Athens residents.
ORC 731.28 states, in part, that a local elections board "shall submit such proposed ordinance or measure for the approval or rejection of the electors of the municipal corporation at the next general election occurring subsequent to 90 days after the auditor or clerk certifies the sufficiency and validity of the initiative petition to the board of elections."
A "general election" is defined under ORC as "the election held on the first Tuesday after the first Monday in each November."
Elections Board Director Debbie Quivey cited ORC on Friday in making the point that no one can run an initiative petition in a primary election.
"They have to be run in a general," she said. "So I can tell you pretty certainly that this will not be running in the primary. As to the board, I'm not sure if they will certify it to the general on Tuesday or not. I can not speak for them."
The Athens County Elections Board is composed of Democrats Helen Walker and Kate McGuckin, and Republicans Ken Ryan and Aundrea Carpenter-Colvin.
In last summer's vote on the objection to the petition, McGuckin recused herself from the vote, citing a conflict of interest.
Quivey said Friday that as of that time the elections board had not been made aware of any plans to challenge the latest iteration of the ordinance initiative, and that no protest had been filed.
"We have not been contacted by any attorney's office, or anyone," she said. "I have not heard of anything."
In August, the objection to the BORC's anti-fracking initiative was filed by a group of seven Athens area residents represented by local attorneys John Lavelle and Rusty Rittenhouse. It was sustained by the three voting elections board members.
In October, the BORC announced it would amend its proposal and work to get the measure to voters.
Last week, Lavelle said he could not comment as to whether he would represent another challenge to the petitions. Elections board staff have verified more than enough valid signatures.
Arguing for the measure's placement on the primary ballot, BORC attorney Sean Kelly emphasized safety and the risk of any drilling activities in the interim as reasons for the exception.
"We are making this request because any delay in presenting our Initiative Petition to the voters for a decision is unnecessary and potentially harmful to the health and safety of everyone who lives or works in Athens City," he wrote.