The Abortion Fight Has Voters Turning to Ballot Initiatives


In 1910, Ohio voters went to the polls and called a convention to update the state’s constitution, which had been in place since 1851. It was the Progressive Era, and, two years later, a hundred and nineteen delegates—Republicans, Democrats, and a few Independents and Socialists, representing various professions from across the state—met in Columbus, where they advanced reforms reflecting the egalitarian tendencies of the time. Theodore Roosevelt, who had left the White House three years earlier, delivered a speech, lasting more than an hour, called “A Charter of Democracy,” in which he lamented that many state legislatures “have not been responsive to the popular will.” Their interests were often too narrow, he said, their approaches too often dismissive of the people they were elected to serve. The answer was access to more ballot initiatives, led by citizens, “not to destroy representative government, but to correct it whenever it becomes misrepresentative.”

The delegates drafted forty-two amendments, and, later that year, Ohio voters approved thirty-four of them. One abolished prison contract labor. Others mandated an eight-hour workday on government-funded projects, established a workers’-compensation system, created direct primary elections, and gave more authority to municipalities to run their own affairs. (Of course, only men voted, and one of the amendments they rejected, fifty-seven per cent to forty-three, would have granted women the franchise, eight years before ratification of the Nineteenth Amendment.) Significantly, Amendment 6 established a procedure for citizens to gather signatures to place a constitutional amendment directly on the ballot, avoiding the need for another constitutional convention. The number required was, and remains, ten per cent of the total who voted for governor in the prior election, spread across a certain number of counties. If a simple majority vote in favor, the amendment takes effect: “direct popular action,” as Roosevelt called it, containing reasonable barriers “to prevent its being wantonly or too frequently used.”

For more than a century, that’s how things stood. The procedure has certainly not been wantonly used. Since 1950, according to the state chapter of Common Cause, forty-three citizen initiatives to amend the constitution have appeared on a ballot. Voters passed just ten of them. Nevertheless, in recent months, the Republican majority in Ohio’s gerrymandered state legislature has decided that a simple majority is too low a threshold. Despite objections from a bipartisan array of former governors, attorneys general, and election workers, Republican legislators scheduled a rare special election for August 8th, during which they will ask voters to approve raising it to sixty per cent. The stated reason is to “safeguard Ohio’s constitution from special interests.” A more immediate reason, according to the effort’s main sponsor, State Representative Brian Stewart: “The Left intends to write abortion on demand into Ohio’s Constitution.”

The maneuvering in Ohio is a clear example—nearly a year after the Supreme Court, in Dobbs, overturned Roe v. Wade—of the recent, escalating effort by G.O.P.-controlled state legislatures to limit abortion access. In April, nineteen Republican attorneys general filed a brief in support of a Texas lawsuit seeking to take the abortion drug mifepristone off the market. In Idaho, where abortion is banned, with few exceptions, helping a minor travel out of state to obtain one without parental consent is now punishable with prison time. In Tennessee, performing an abortion is a felony in most circumstances, including in cases of rape or incest. Last month, after bitter legislative debate, Republican supermajorities established new restrictions in Nebraska, South Carolina, and North Carolina.

In Ohio, where a six-week abortion ban is on hold, pending a court ruling, supporters of abortion rights are turning to Roosevelt’s “direct popular action,” seeking to gather enough signatures to place a proposed constitutional amendment on the November ballot to guarantee, in almost all cases, that “every individual has a right to make and carry out one’s own reproductive decisions.” They are confident of raising the necessary four-hundred-thousand-plus signatures to do so, bolstered by a Baldwin Wallace University poll last year that suggested that fifty-nine per cent of Ohioans support making abortion a constitutional right. (In neighboring Michigan, in November, nearly fifty-seven per cent of voters approved similar language for their constitution.) Hence the August election scheduled by Ohio’s anti-abortion legislators. “They say they’re trying to protect the Ohio constitution from outside interests,” David Pepper, a former chair of the Ohio Democratic Party, told me. “They’re trying to protect themselves from Ohio voters.”

Referendums and initiatives often accomplish in the voting booth what can’t get through the legislative process, especially in gerrymandered statehouses. “If you ask voters, ‘Whom do you trust to make decisions, the people or the politicians?’ it’s always a landslide, three to one, for the people,” John Matsusaka, a University of Southern California professor of business and law and the author of “Let the People Rule,” told me. “That’s true in every state.” And raising barriers to referendums and initiatives—which can change laws or the state’s constitution—is a tactic that has been historically used by Democrats and Republicans alike. “There’s always a state trying to make it harder,” Matsusaka said. The reason, he believes, is that politicians in power want to preserve that power. “If you go back far enough, you will see that these things come in waves. What typically happens is when voters start to use direct democracy a lot, the politicians start to propose these restrictions.” Some legislators in Florida, where voters recently approved a minimum wage and voted to restore the rights of people with felony convictions, tried to raise the threshold, already at sixty per cent, to nearly sixty-seven per cent.

If ballot initiatives capture democracy in a bottle, they capture the interests of the sponsors and the imperfections of the electorate along with it. The actual text that appears on the ballot is sometimes confusing, or seems to contradict a separate measure, leaving voters flummoxed and outcomes open to interpretation. Given the stakes, ballot contests are becoming costlier. In 2020, in California, home to some of the country’s most noteworthy and notorious citizen initiatives, organizations taking sides raised more than seven hundred and sixty million dollars. Topics included bail reform, rent control, the status of gig drivers, and the regulation of the dialysis industry.

In recent years, voters across the country have approved progressive initiatives expanding Medicaid access, strengthening gun laws, raising the minimum wage, and legalizing marijuana. It’s no surprise, then, that conservative Republicans are currently the ones most often trying to raise the threshold. In principle, there is nothing wrong with making sure that proposed changes to the law or to a constitution have broad-based support. (The Framers made it particularly difficult to amend the U.S. Constitution. Since then, more than ten thousand amendments have been introduced to Congress; only twenty-seven have been ratified.) But Matsusaka sees Republican legislatures seeking to change the rules not to protect government from the whims of slender majorities but to preserve unpopular policy choices.

It hasn’t always gone well for them, even in red states. Last year, voters in Arkansas—a state that voted sixty-two per cent for Donald Trump in 2020—were asked by the Republican-dominated legislature to decide whether to raise the threshold for citizen-approved constitutional amendments to sixty per cent. They voted no, defeating the measure by eighteen points. Republican proponents claimed that the goal was to avoid frequent amendments, but Bonnie Miller, the president of the League of Women Voters of Arkansas, saw it differently. “They didn’t like it when Arkansas voters used ballot measures to create term limits, establish ethics rules they have to follow, and take some of the money out of politics,” she told the Arkansas Democrat-Gazette. Sarah Huckabee Sanders, the governor of Arkansas, signed a law in March that makes it more difficult to gather signatures to put an initiative on the ballot in the first place, by raising the number of counties where signatures must be gathered from fifteen to fifty. (In 2020, Arkansas voters rejected a similar measure.) The League of Women Voters, along with a Republican state senator, one of two Republicans to vote against the bill, has filed a lawsuit to block it from taking effect.


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