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Posted by The Dean of Cincinnati
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The cat is out of the bag: first Mark Painter’s item in the Enquirer a couple days ago, and then this item by Kevin Osborne in CityBeat from yesterday. The Beacon spoke with public transit advocate Brad Thomas about this recent kerfuffle, just to clarify the problem with the NAACP’s approach to opposing the streetcar—an approach which ultimately resides in the phrase “streetcar system.”
According to Thomas, the proposed charter amendment “goes against the expressed will of the voters, it’s arbitrary, overly broad and deceptive in language and intent.” Sound familiar? This is the same reason why I revoked my support for the NAACP’s 2009 campaign—even though, back then, I had concerns about the streetcar plan. But even for people who have legitimate concerns about the streetcar, it has once again become too dangerous to oppose it through this over-broad signature campaign.
For Thomas, arbitrary dates in the new proposal are troublesome. ” It blocks rail for the rest of this decade for no apparent reason,” he explained. ” It would be illegal to design, engineer, construct or operate rail in Cincinnati on December 31st, 2020 but suddenly the next day it is fine to do so. Obviously there is no way these rail opponents can predict out to 2021, so it is a bad idea to tie the hands of our city (and our region as the city will have to be a part of any regional rail plan) so far out into an uncertain future.”
Further, if Cincinnati voters were to decide they actually wanted to support a tax for the development of rail projects, this would prevent such an expression of the citizens’ will. “It applies to ‘money from any source whatsoever,’” Thomas clarified. “Federal or private money would be barred. A dedicated tax for rail subsequently passed by city voters would be barred. It is entirely over-broad. It would also be (to the best of my knowledge) the most restrictive anti-transit charter amendment in the country. It would be harder (actually impossible) to build rail in Cincinnati than any other city in the entire country.”
Of course, when you consider the role the far-right anti-tax advocates at COAST have in crafting the NAACP’s legal language for these amendments, we can understand the potential for hidden agendas. Such groups oppose all taxes, and the idea that people would actually want to support something of the sort is not acceptable to their ideology.
Ultimately, what this comes down to, in a legal sense, is the use of the word “streetcar system.” In his Enquirer piece, Mark Painter explained the significance:
The drafters of this amendment define a “streetcar system” as “a system of passenger vehicles operated on rails primarily in existing public rights of way.” By changing “street or highway” to “public right of way” these special-interest groups have greatly expanded the scope of this anti-rail amendment.
The definition of “right of way” under Ohio law is expansive: “land, property, or the interest therein, usually in the configuration of a strip, acquired for or devoted to transportation purposes.” The city (or Metro) owns the rights of way where any rail system would travel. And any trains running in these rights of way would be prohibited for the next 10 years.
This broad definition of “streetcar system” would prevent any future rail planning without first amending our city’s constitution. What if someone wanted to bring back an incline, even mostly at private expense? Or if, in 2020, the federal government awarded a grant to cover 100 percent of the cost of a new rail system? The anti-rail amendment would ban federal grants or private donations as well.
Any competent attorney drafting this ballot language would first research the legal definition of “streetcar.” So the drafters knew exactly what they were doing when they wrote this new, broader definition of “streetcar system.” Or they are incompetent.
Brad Thomas agreed, especially given the fact the petition uses more words than necessary. “The drafters of this amendment used 27 words when only 1 was needed,” he explained. “If they wanted to limit this amendment only to the streetcar, the existing definition of ‘streetcar’ would have been sufficient (and they could have inserted the actual text of the existing definition of ‘streetcar’ if they wanted to just in case the definition of ‘streetcar’ were to change in the future’).”
It’s an important distinction. Ohio Revised Code provides an exact definition of a “streetcar”: “(R) ‘Streetcar’ means a car, other than a railroad train, for transporting persons or property, operated upon rails principally within a street or highway.”
“By creating a new term—‘streetcar system’— the drafters of this amendment have greatly expanded the scope of the amendment and done so in a way that is likely to confuse the voters,” concluded Thomas. “Without independent research, no one would know the difference between a ‘streetcar’ and a ‘streetcar system.’ This is a deceptive measure that only serves to confuse voters and leverage perceived opposition to the Cincinnati Streetcar into a generation long rail ban for our city.”
Why is the NAACP once again trying to oppose all rail projects for the forseeable future under the guise of opposing only the streetcar? Looks like they didn’t learn their lesson in 2009. Let’s hope the voters do remember, and once again vote down this terrible concept—this time once and for all.
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