Must public officials assess a new law to determine whether it’s constitutional before carrying it out? That’s the upshot of a federal-court ruling Monday declaring Secretary of State Jon Husted liable for enforcing a law passed by the Ohio General Assembly that later was declared unconstitutional. At issue was a 2013 measure — Senate Bill 47 — declaring that circulators of initiative petitions must be Ohio residents. Judge Michael Watson of U.S. District Court in Columbus said that even if Husted assumed the law were constitutional, “a reasonable official would have understood that enforcement of the residency requirement would violate plaintiffs’ First Amendment right to engage in political speech despite the presumptive validity of the statute.”
The restriction on petition circulators was almost identical to one on people who circulate presidential-elector petitions, which was struck down as unconstitutional seven years ago, Watson noted.
Husted’s office questioned Monday’s ruling denying him qualified immunity, saying his role in the executive branch is to carry out a law, not interpret it.