2021 second half year-end review and 2022 preview
In the second half of 2021, the 134th Ohio General Assembly focused on the state legislative and congressional redistricting process and finishing work on a wide variety of legislation dealing with topics such as sports gaming, COVID-19 and telehealth. The legislature returns in mid-January for a busy winter and spring schedule with priorities including the capital budget, appropriating more federal COVID-19 relief funding and more.
Politically, all statewide constitutional offices, a United States Senate seat, all of the congressional seats, all Ohio House seats and half of the Ohio Senate seats, and the partisan balance of the Ohio Supreme Court are at stake in the 2022 elections. Ohio’s primary election, scheduled for May 3, is the first electoral contest under new congressional and legislative maps following the completion of the apportionment process. Legislative work will likely wrap up in early June when the chambers will recess and shift focus to the campaign trail and the November general election.
- 2021 second half legislative summary
Most of lawmakers’ attention centered on completing the required redistricting process, but the legislature still completed work on several notable pieces of legislation. Legislative priorities completed at the end of the year reflected work from the beginning of the year, or, in many instances, reflected priorities spanning several General Assemblies.
- House Bill 122 – Telehealth
Work on legislation permitting specified health care professionals, including physician assistants, to provide telehealth services finished in December 2021 with the Senate passing the measure on December 7, and the House concurring in amendments on December 16. Governor Mike DeWine signed the legislation on December 22, completing a legislative process started in the previous General Assembly. A longtime priority for many statehouse stakeholders, telehealth authorization moved to the top of many policymakers’ priority lists at the onset of the COVID-19 pandemic.
- House Bill 126 – Contest property values
The Senate Ways and Means Committee amended and reported House Bill 126 on December 7, 2021, to greatly limit school districts’ ability to contest property values in their communities. House Bill 126 prohibits any person or political subdivision from filing a property tax complaint with respect to property that the person or political subdivision does not own. The bill allows a school district to file a counter-complaint only if the school board first adopts a resolution authorizing the counter-complaint. Lastly, House Bill 126 prohibits a school district that has filed a counter-complaint from appealing the decision of a board of revision. The Senate passed the bill by a vote of 24-7 on December 15. Due to Senate amendments, the House will need to concur with the Senate changes prior to the bill being sent to the governor.
- House Bill 29 – Sports gaming
After several years, Ohio joined the growing number of states permitting wagers on professional and collegiate sports. The legislation, signed by Governor DeWine on December 22, 2021, creates three categories of gaming licenses: Type A – mobile wagering; Type B – brick-and-mortar sports books; and Type C – for specified liquor license holders. Casinos, racinos and Ohio’s professional sports teams receive preference for Type A and Type B licenses. Ohio’s Casino Control Commission is already working on the necessary regulations. Type A license holders are entitled to operate up to two mobile platforms, often referred to as “skins.” The legislation calls for sports gaming to begin no later than January 1, 2023, but the Casino Control Commission can authorize wagering earlier, provided all license types can begin operations at the same time.
- Congressional and legislative redistricting
During the month of September 2021, the Ohio Redistricting Commission, a newly created commission for the redistricting process, held public meetings across the state soliciting public input on the future of the Ohio House and Ohio Senate legislative districts. Ultimately, the Ohio Redistricting Commission failed to reach a bipartisan consensus, necessary for adopting a ten-year map, and approved a four-year district map. Shortly thereafter, several parties filed lawsuits against the maps at the Ohio Supreme Court. The Ohio Supreme Court held oral arguments on December 8. After oral arguments, the court asked parties to brief a separate issue regarding the court’s jurisdiction over a four-year map. Parties are awaiting a decision. Candidates will need to file their candidate petitions by February 2, 2022.
Responsibility for adopting new congressional districts initially sits with the General Assembly, but the legislature failed to draw congressional maps by the constitutional deadline of September 30, 2021. When that happens, the Ohio Constitution gives the Ohio Redistricting Commission until October 31 to reach the necessary bipartisan consensus for a full ten-year map. However, in late October, House Speaker Bob Cupp (R-Lima) and Senate President Matt Huffman (R-Lima), leaders of the commission, made it clear that the commission would not meet the constitutional deadline. The process reverts back to the General Assembly, which passed Senate Bill 258 without minority caucus support, creating four-year maps. Subsequently, the congressional maps were challenged in two separate lawsuits. The Ohio Supreme Court heard oral arguments on December 28.
- 2022 legislative preview
The Ohio General Assembly signaled many of its intended 2022 priorities with the work the respective chambers completed at the end of the year. Below is a preview of some of the expected priority bills for 2022.
- Energy and utilities
- House Bill 317 – Repeal electric security plans
The House Public Utilities Committee adopted a substitute bill for House Bill 317 in September 2021. If enacted, the bill eliminates an electric security plan for electric distribution utilities, including the standard service offer. The standard service offer is the default commodity rate charged to customers. Additionally, it eliminates the ability for an electric distribution utility to provide a market rate offer. Instead, electric distribution utilities would be required to apply for a new hybrid concept called a "competitive power plan." Utilities would have to apply to the Public Utilities Commission of Ohio to establish those plans every five years. The sponsor, Representative Shane Wilkin (R-Hillsboro), is continuing to work on the legislation, and we anticipate another substitute bill in the new year.
- House Bill 389 – Energy efficiency and peak demand reduction portfolios
After several versions of House Bill 389 were adopted in the House Public Utilities Committee, the committee reported the bill out unanimously on November 17, 2021. With strong bipartisan support, including bipartisan cosponsors Representative Dave Leland (D-Columbus) and Representative Bill Seitz (R-Cincinnati), House Bill 389 is expected to move out of the House chamber in 2022. If enacted, electric distribution utilities will be permitted to apply to the Public Utilities Commission of Ohio for approval of a portfolio of programs for energy savings, such as energy efficiency savings and peak demand reduction savings. If passed by the Ohio House, the Senate will begin its own committee process.
- Consumer personal data
i. House Bill 376 – Ohio Personal Privacy Act
- A financial institution, data or an affiliate of a financial institution governed by Title V of the federal “Gramm-Leach-Bliley Act” and related regulations
- A covered entity or business associate governed by the privacy, security and breach notification rules issued by the U.S. Department of Health and Human Services and the Health Information Technology for Economic and Clinical Health Act
- Any business-to-business transactions or any insurer or independent insurance agent
Referred to the House Government Oversight Committee, the bill received four hearings before the end of the year. The committee adopted a substitute bill during the third hearing in December. Although the committee scheduled a vote at the bill’s fourth hearing, a vote was not called. Representative Carfagna said that the Republican caucus needs more time with the language to understand its impacts.
i. Senate Bill 256 – Travel insurance
Senate Bill 256 was introduced on October 19, 2021. The Senate Insurance Committee quickly got to work and adopted a substitute bill on November 17, which includes the National Association of Insurance Commissioners (NAIC) standard minimum nonforfeiture rate language. The substitute bill also codifies the practice of electronic signatures in the insurance code, adopts the NAIC Rebating Model Act, and clarifies recent changes to title insurance adopted in the operating budget, House Bill 110.
The Senate Insurance Committee reported the bill out of committee unanimously on December 15. We expect the legislation to make its way to the Senate floor in early 2022.
- Senate Bill 236 – Insurers digital communications
Senate Bill 236 enables insurers using an online platform to automatically enroll purchasers in digital communications. Senators George Lang (R-West Chester) and Steve Wilson (R-Maineville) introduced Senate Bill 236 on September 28, 2021, and it was referred to the Senate Insurance Committee. After five hearings and several amendments, the committee unanimously reported the bill out on December 15. The bill is likely to be considered by the full Senate in early 2022.
- Prohibiting vaccine mandates
In the spring of 2021, legislative activity regarding vaccine mandates centered around House Bill 248, which generally prohibited state and local governments, businesses, employers, schools, day-care centers, colleges, nursing homes, health care providers and insurers from requiring individuals to receive a vaccine. The bill also prohibited discrimination based on vaccination status and required vaccine disclosures and passports.
When House Bill 248 stalled in the House Health Committee, the House amended House Bill 218, originally a measure exempting bars from statewide curfews, to address COVID-19 vaccine mandates. House Bill 218 passed the House on November 18, 2021, and is pending in the Senate General Government Budget Committee, where it received two hearings at the end of the year. As amended, House Bill 218 generally prohibits schools, colleges and employers from mandating that students and employees receive a vaccine unless the vaccine has been granted full approval from the Food and Drug Administration. The bill would remain in place until sunset provisions take effect on September 30, 2025. Among other provisions, the legislation notably creates an exemption from vaccine requirements based upon medical contraindications, natural immunity and reasons of personal conscience.
President Biden’s administration issued a vaccine requirement through an Occupational Safety and Health Administration (OSHA) Emergency Temporary Standard (ETS) requiring that large employers (100 or more employees) implement mandatory vaccine requirements or weekly testing regiments for unvaccinated employees. Since its unveiling, the ETS faces multiple lawsuits, including one led by Ohio Attorney General Dave Yost. As of the drafting of this memo, the U.S. Court of Appeals for the Sixth Circuit lifted the stay from the Fifth Circuit for OSHA’s vaccination and testing ETS. OSHA stated it will not issue citations for any violations of the ETS before January 10, 2022, and will not issue citations for violations of the testing requirements before February 9, as long as an employer is exercising reasonable, good faith efforts to come into compliance with the ETS. A challenge to the ETS is currently pending at the U.S. Supreme Court with oral arguments scheduled for January 7.
While House Bill 218 has no legal bearing on the OSHA ETS, because of federal preemption, a decision by the U.S. Supreme Court could impact whether the General Assembly takes further action on vaccine related legislation.
- Capital budget
Senate Finance Committee Chair Matt Dolan (R-Chagrin Falls) announced an agreed upon timeline by the General Assembly and Governor Mike DeWine’s administration for the capital budget for 2022. Traditionally, Ohio adopts a capital budget in even-numbered years, providing funding for state capital projects and community projects. The announced goal is to complete the capital re-appropriations budget by March 31, 2022, funding already authorized projects. Separately, appropriations for new capital projects are on a later timeline.
Requests for new capital projects are due to legislators by March 18. Legislators will then submit their priorities by April 1. The General Assembly scheduled a spring break for the May primary from mid-April to early May, but we anticipate the Legislature will move quickly on the capital budget this spring when in session.
- Cannabis legislation
There were multiple pieces of cannabis legislation introduced in 2021, however, only Senate Bill 261 received traction in the fall, passing the Senate on December 15, 2021. Senate Bill 261 proposes expanding the types of medical conditions that are eligible for treatment and allowing a physician to recommend medical marijuana via telemedicine. Additionally, a physician can recommend medical marijuana if the patient’s symptoms may reasonably be expected to be relieved or otherwise benefit from medical marijuana.
Other legislation allowing various levels of growing, possession, taxing and recreational use of cannabis that were introduced, but have not received a committee hearing yet, include House Bills 210, 382 and 498. Furthermore, petitioners began the process of a citizen’s initiated statute forcing the legislature to consider legislation authorizing the use of recreational marijuana. See more on the proposed initiated statute below.
- Criminal justice reform
Senator Nathan Manning (R-North Ridgeville) recently stated that an omnibus criminal justice reform bill is forthcoming in 2022 and will possibly include provisions simplifying the record sealing process and giving judges an option to expunge rather than seal records. Lawmakers and criminal justice reform advocates have been working on comprehensive reform measures for several General Assemblies.
- Streamlining state government
Lieutenant Governor Jon Husted along with Senator Steve Wilson (R-Maineville) and Representative Thomas Hall (R-Madison Township) announced on December 14, 2021 a plan developed with artificial intelligence aimed at reducing the occasions that Ohioans must interact in person or by mail with government. Companion legislation, House Bill 524 and Senate Bill 279, was subsequently introduced at the end of December, and is estimated to save about $4.4 million and 5,800 hours of labor per year. More details to follow in 2022 on this initiative.
- Possible ballot issues
A. Medical marijuana
On July 27, 2021, the Coalition to Regulate Marijuana Like Alcohol submitted an initiative petition for an initiated statute to legalize and regulate adult use of cannabis. Attorney General Dave Yost rejected the initially-filed petition due to the summary not accurately capturing the proposed statute’s contents and, therefore, was not a fair and truthful statement of the proposed chapter of law. The group resubmitted the initiative petition with a different summary on August 13. Attorney General Yost’s office approved the petition on August 20. The Ohio Ballot Board certified the initiative as a single issue. The petitioners collected and submitted 206,943 signatures. On January 3, 2022, Secretary of State Frank LaRose notified the petitioners that they did not reach the threshold of 132,877 valid signatures. The petitioners missed the threshold by about 13,000 valid signatures. The petitioners have until January 13 to file the additional signatures for the matter to be put before lawmakers for their consideration. If the group meets the threshold, the General Assembly will have four months to consider the proposal. If the General Assembly fails to take action, the group can collect an additional 132,877 signatures and put the issue before voters in November.
A group of petitioners filed an initiated statute petition titled “Vaccine and/or Gene Therapy Choice and Anti-Discrimination” with the attorney general’s office on November 30, 2021. The initiated statute petition language, similar to House Bill 248, prohibits employers, public officials and others from requiring people to receive any vaccine. The Attorney General rejected the petition on December 9, because the petition’s summary of the proposal failed to be a “fair and truthful statement” of the proposed law. To proceed, the group needs to resubmit the summary along with 1,000 signatures. The petitioners intend to refile. However, even if successful, the measure will not be placed before legislators or voters in 2022.
IV. 2022 election preview
Ohio will be filled with campaign activity in 2022 as a U.S. Senate seat and all of its statewide executives are on the ballot. Three of the seven seats on the Ohio Supreme Court will also be on the November 2022 ballot. The court’s majority will be in play. All Ohio House seats and the odd-numbered Senate districts will be up as well. Because congressional districts were passed so late in 2021, Ohio legislators created two separate filing deadlines for candidates for office. Candidates for the U.S. House of Representatives must file nominating petitions by March 4. Ohio law requires all other candidates to file their nominating petitions by February 2.
- U.S. Senate
Senator Rob Portman’s decision not to run for reelection resulted in a rare open U.S. Senate seat, attracting a crowded primary election field. Republican primary candidates include State Senator Matt Dolan, Mike Gibbons, former State Treasurer Josh Mandel, Bernie Moreno, former Ohio Republican Party Chair Jane Timken and author J.D. Vance. Congressman Tim Ryan faces Morgan Harper in the Democratic primary.
- U.S. Congress
Ohio lost a congressional seat as a result of the 2020 census, dropping the state’s congressional delegation to 15 seats. With legal challenges to the newly drawn congressional districts and a nominating petition deadline of March 4, 2022, we won’t know all of the candidates for federal office for some time, but some noteworthy potential early congressional races include Max Miller, a former advisor to former President Donald Trump, and Shay Hawkins, a former aide to South Carolina U.S. Senator Tim Scott, who will face each other in a primary for the seat currently held by Congressman Anthony Gonzalez, who is not seeking reelection. Republican State Senator Theresa Gavarone (R-Huron) announced that she will run against Democratic Congresswoman Marcy Kaptur (D-Toledo).
- Statewide executives
Governor Mike DeWine and Lieutenant Governor Jon Husted face former Congressman Jim Renacci and Joe Knoop, as well as Joe Blystone and Jeremiah Workman in the Republican primary for Governor. Dayton Mayor Nan Whaley and running mate Cuyahoga Councilmember Cheryl Stephens, and Cincinnati Mayor John Cranley and running mate State Senator Teresa Fedor, are competing in the primary for the Democrat ticket for governor.
Attorney General Dave Yost competes against Cuyahoga County Democratic State Representative Jeffrey Crossman in his bid for reelection.
Secretary of State Frank LaRose faces a primary challenge from former Republican State Representative John Adams. Forest Park City Councilwoman Chelsea Clark is currently the only announced Democrat running for Secretary of State.
Republican incumbents, Auditor of State Keith Faber and Treasurer of State Robert Sprague, await the announcement of their respective opponents.
- Ohio Supreme Court
Perhaps the most watched races in Ohio for the 2022 election cycle are the three seats being contested for the Ohio Supreme Court. Currently, Republicans enjoy a 4-3 majority on the state’s high court, but with three seats up for grabs, the court’s partisan balance is in play. Current Ohio Supreme Court Chief Justice Maureen O’Connor (R), is leaving the court due to age limitations imposed by the Ohio Constitution. Current Ohio Supreme Court Justices Sharon Kennedy (R) and Jennifer Brunner (D) are challenging each other for the role of chief justice. Neither needs to leave their current seats in order to run for the chief justice position.
Republican Justices Pat DeWine and Pat Fischer are both up for reelection and face challenges from Democrat Court of Appeals Judges Marilyn Zayas and Terri Jamison, respectively.
Notably, this is the first election in which Supreme Court and Court of Appeals judicial candidates appear on the ballot with their party designation, due to the passage of Senate Bill 80 in 2021.
- Ohio General Assembly
Representative Emilia Sykes (D-Akron) announced she is stepping down as minority leader at the end of 2021. Several members are reportedly vying to be the next House minority leader.
House Speaker Bob Cupp is term limited at the end of 2022, so the House Republican Caucus will choose a new speaker for the next General Assembly.
In the Ohio Senate, Minority Leader Kenny Yuko (D-Richmond Heights) is also term limited, and the Senate Democrats are beginning the process of selecting a new caucus leader.
Nominating petitions for Ohio House and Senate candidates are due February 2, 2022. If the currently proposed districts withstand legal challenges, 2022 could see multiple matchups between incumbent office holders in both the primary and general elections.
As the calendar turns from 2021 to 2022, Ohio’s elected leadership begins shifting from policy making to campaigning. The agenda remains full, but despite fewer days in legislative session, we expect heavy activity when the General Assembly is in Columbus. Statehouse stakeholders can anticipate that lawmakers will work diligently on their priorities before facing the voters and setting up an eventful lame duck session at the end of 2022. You can view any of the bills discussed in this memo at the Ohio General Assembly’s website.
This is for informational purposes only. It is not intended to be legal advice and does not create or imply an attorney-client relationship.Download PDF