Ohio’s referendum is another win for abortion-rights campaigners

Editor’s note (August 9th 2023): This article has been updated.

OHIOANS ARE unused to voting in August. Previously, elections were held in the summer only in dire circumstances. Even then not many people turned up—primaries held in August last year, including for a Senate seat, got only single-figure turnout. But this year turnout was around 40%. Ohioans were voting in substantial numbers to answer one question.

On August 8th the Buckeye State decided in a special election against making its constitution harder to change: voters rejected a proposal to introduce a higher hurdle by about 57% to 43% President Joe Biden welcomed the defeat of “a blatant attempt to weaken voters’ voices.” In Ohio residents can collect signatures to force a popular vote on proposed amendments. This referendum, put forward by the state legislature, would if passed have required aspiring citizen-sponsored amendments to collect signatures from every county, rather than the current requirement to have them from just half the counties. For those that made it that far, the threshold for a proposal to pass would have been raised to 60% of the vote (from a simple majority).

Supporters argued that the changes would leave legislating to the legislature. If the statehouse gets something wrong “we can change it tomorrow,” said Brian Stewart, the representative who led the charge for the special election. “Once it’s in the constitution, it has generally been there to stay.” The higher bar would lead to bipartisanship, proponents in Ohio argued.

Across America, 26 states allow residents to initiate ballot measures, including 18 where citizens can propose constitutional amendments. In recent years such votes have become a tool to enact liberal ideas in Republican-controlled states, including legalising marijuana, raising the minimum wage and expanding Medicaid (health insurance for the poor). In Ohio Republicans have controlled the state government since 2011. The proposed amendment was “not about creating consensus”, argued Kelly Hall of the Fairness Project, a national non-profit group that supports liberal ballot initiatives and campaigned against Ohio’s proposed change. Rather, it was “a power grab by the legislature to make sure that more decisions remain in their hands”.

Activists worried that the extra signature requirements to get on the ballot would have limited future campaigns to well-funded corporate interests. The 60% threshold would have had immediate implications—which goes some way to explain the timing of the special election. In November Ohioans will face another ballot measure, this time about whether to introduce a right to abortion into the state constitution. It would be a stark change: currently, a six-week abortion ban is being litigated in state courts. If the August amendment had passed, November’s vote would have needed to reach the 60% threshold.

Six other states have voted on abortion since the Dobbs decision in the Supreme Court overturned Roe v Wade last year. In each case, voters have opted to protect access to abortion. But in Kansas, Kentucky and Michigan the abortion-rights campaign won with less than 60% of the vote. In Ohio the legislature brought about the August special election after it became likely that the abortion amendment would make it onto the ballot. “There’s never a wrong time to do the right thing,” explained Frank LaRose, the Republican secretary of state who campaigned to raise the threshold. The timing was incidental, he argued: if the vote was not close to an abortion vote, it would be close to some other liberal issue.

Ohio is not the only state where the legislature is pushing back against ballot initiatives. The Ballot Initiative Strategy Centre, a group that supports progressive votes, has tracked 50 initiative-limiting measures across 14 states this year. It’s the “culmination of ten years of what [Republican-controlled legislatures] view as progressive wins”, says Sarah Walker, one of the group’s strategists, but “the Supreme Court’s decision with Dobbs has amplified those concerns.”

Some of the recent changes have been procedural to the point of pedantry: South Dakota now requires all signatures supporting a ballot initiative to be on one piece of paper, and in a 14-point font, leading to sail-sized petitions being passed around at county fairs. Other changes are more fundamental. Next year North Dakota will vote on whether to require that constitutional amendments be passed twice, first at a primary election and then at a general election. In Arkansas a state law passed this year raises the number of counties where it is necessary to collect signatures from 15 to 50 (of the total of 75). In Ohio Bryan King, a Republican state senator, broke with his party over the proposed law. “It’s just a principle thing,” explained Mr King, known locally as “independent cowboy conservative” (and an actual cow farmer). “It’s what the birth of our country was about: challenging what the government does…We shouldn’t be making it this hard.”

But rather than showing how easy it is to change constitutions, the efforts often demonstrate the opposite. Last year in Arkansas and South Dakota ballot measures to raise the thresholds to 60% both failed. Though Arizona’s supermajority for tax-related measures passed, another measure there that would have allowed the legislature to change successful ballot initiatives lost. In Ohio the campaign against raising the bar for amendments raised three times as much money as its opponents. And the voters’ rejection of the proposed change was decisive.

In the Progressive Era ballot initiatives became popular, amid widespread distrust of the functioning of democracy. The record of such direct democracy is mixed, and can lead to ill-considered laws (just ask Californians). But many voters, in Ohio and elsewhere, are reluctant to dilute it.