Are Ohio Republicans Hampering Abortion Rights by Attempting to Change Ballot Rules?

Before voters consider enshrining pro-choice language in their state constitution, they will decide whether it should be harder to do so

Are Ohio Republicans Hampering Abortion Rights by Attempting to Change Ballot Rules?
Protesters hold placards at an abortion-rights rally in Dayton, Ohio, in 2022. (Whitney Saleski/SOPA Images/LightRocket via Getty Images)

Dr. Marcela Azevedo tried to go about her day as if it were any other. She commuted to the intensive care unit at the hospital where she worked in Northeast Ohio and focused on taking care of her patients — with a nauseating pit in her stomach that refused to go away. That day, the Supreme Court was ruling in the case of Dobbs v. Jackson Women’s Health Organization. Rushing around, helping to care for young, sick mothers, all she could think about was how she might soon not be able to save their lives and futures.

When a young woman dies from a pregnancy complication in critical care, Azevedo said, “all you can hear are the screams of her partner outside of her room.” Thanks to the Dobbs decision, she feared that the screams would become only more frequent and more pronounced.

The maternal mortality rate in Ohio was already on the rise.

“How many more young mothers will I see die on a daily basis?” she asked. “I see a lot of people die, but some are not meant to die yet.” Dobbs was taking away her “right to take care of these patients” and her right to keep them safe.

Feeling helpless, Azevedo went home and helped pen a letter reflecting physicians’ disillusionment with a system that catered more to the whims of a political clique over the will of the people and the recommendations of medical practitioners. In less than a week, nearly 1,000 doctors had signed the letter. Now, she says, triple that number are members of the organization she helped co-found in the aftermath: the Ohio Physicians for Reproductive Rights.

Today, Azevedo feels less helpless, emboldened even. She is one of the thousands of volunteers who have canvassed Ohio’s 88 counties, gathering signatures to put abortion on the ballot in November.

“We officially qualified with close to 500,000 signatures”, she said over email on July 30, surpassing the 400,000 required to let Ohioans decide whether they want to amend their state constitution — and, in this case, enshrine the right to abortion. Other states have succeeded in doing so, circumventing Dobbs.

Ohio could be next. That is, if Republicans do not manage to change 111 years of voting practice in the state to stop them.

Those who heard Peter Range testify during an Ohio Senate committee hearing in March might have thought he was discussing a dystopian film, not voting thresholds. The CEO of the anti-abortion group Ohio Right to Life argued passionately that “tens of thousands of babies will be starved to death or dismembered in perpetuity” if the amendment in question were not passed. The rights of “all parents are on the line,” he argued, as was the safety of all women and mothers. The resolution being considered, however, was not about abortion or gender-affirming care — it was about supermajorities.

With the abortion rights ballot that Azevedo and others are working so hard to push forward meant to reach voters in November, Ohio Republicans have decided that August is the time for citizens to consider raising the threshold of votes needed to make edits to the state constitution from a simple majority of 50% plus one to 60%. They also want to make it harder for citizens to put an issue on the ballot by raising the number of signatures needed. Their efforts could fundamentally change Ohioans’ voting and constitutional rights.

It is true that supermajority requirements are not exceptional. Many democracies enforce them to help tilt the scales against change in special cases, constitutional amendments being a big qualifier. According to Michael Gonidakis, president of Ohio Right to Life for 16 years, this supermajority ballot is “not all about abortion” but rather about protecting the Ohio Constitution from “special out-of-state interests.”

With a 60% threshold, it certainly would have been harder for Ohioans to legalize blackjack. “Why do we have gambling in our state constitution?” Gonidakis asks.

Gonidakis is not alone. Since 2017, at least 64 bills have been proposed in 11 states aimed at imposing supermajority requirements for ballot measures, according to Represent Us, an anti-corruption nonprofit organization. State constitutions can certainly be bogged down by verbose ambition — New York’s constitution has about seven times as many words as the federal Constitution, while Alabama’s has 389,000 words in total, longer than Leo Tolstoy’s “Anna Karenina.”

To make matters worse, not every state allows citizens to initiate constitutional amendments. Out of 24 states that allow citizens to bypass the state legislature and put issues on the ballot directly, just 17 permit the constitution to be subject to cross-examination. Of those, Ohio is one of several that allows a ballot to pass with a simple majority. Other states, including Florida and Illinois, already require a 60% supermajority. Gonidakis just wants the same for Ohio, he says. The fact that it will also make an amendment on abortion rights harder to pass is merely fortuitous.

Yet, other state practices aside, citizen-initiated ballots are deeply embedded in the Ohio conscience and comprise a unique flavor of its democratic chops, so much so that five former attorney generals of Ohio (all of them Republican) wrote a letter to every state senator and representative opposing the plan, with four former Ohio governors — two of whom are Republicans — quickly following suit. Simple majorities have also been fruitful for conservative issues in the past.

“If that threshold had been in effect during my time as Governor,” Bob Taft writes, “two signature initiatives, the Clean Ohio Fund and the Third Frontier Project, would not have been approved.” (Taft was governor from 1999 to 2007.) Both measures “have stood the test of time, contributing importantly to the economy and quality of life of our state,” he adds. Impressively, the Clean Ohio Fund, which passed in 2000 with 57% support, resulted in the cleanup of nearly 400 abandoned, polluted sites, preserved 26,000 acres of natural areas and protected more than 39,700 acres of family farms, according to the Coalition of Ohio Land Trusts.

Other amendments that would not have made the cut include a raise in the minimum wage, ensuring women’s suffrage and allowing non-white people and women into the Ohio National Guard. Since 1914, one year after the first constitutional amendment was voted on, only 126 out of 228 proposed amendments have passed — and 50 of the successful measures received less than 60% of the vote, according to an analysis conducted by two outlets, Cleveland.com and the Plain Dealer. Examining the success rate of citizen-initiated ballots paints an even more troubling picture: 19 of 71 citizen-initiated ballots have passed since 1914, a passage rate of 26% with a simple majority, which would have been an unwieldy 10% with a supermajority requirement.

Given the long and storied history of the simple majority, it becomes impossible to ignore the prickly feeling that desiring a supermajority requirement has more to do with reproductive rights than constitutional freedoms. In fact, Republicans have been explicit about mounting a preemptive attack on the abortion rights ballot.

“It is not a coincidence that this is happening a year after Dobbs,” says Melissa Murray, an expert on constitutional law and reproductive rights at New York University. “You are seeing efforts to limit the reach of direct democracy because it has been linked to the prospect of expanding or preserving reproductive freedoms,” she adds. After the Supreme Court’s decision in Dobbs, advocates have increasingly turned to citizen-initiated ballots and other direct democracy measures to fight back — with surprising success.

Since 2022, six states have protected the right to abortion or rejected restrictions on the ability to do so in their state constitutions. More than 50% of residents in Kentucky, Montana and Michigan, as well as nearly 60% of Kansans, leaped over their elected officials to solidify abortion rights.

Voters are also more colorblind than politicians give them credit for. In deep-red Kansas, a state Donald Trump won by 15 points in the 2020 presidential election, the anti-abortion amendment of August 2022 lost 59% to 41%. Turnout was also exceptionally high — more votes were cast than in any primary election in Kansas history, and a small number of Trump-supporting rural counties surprisingly voted it down. In Osage County, which has not supported a Democrat since 1964, residents resoundingly said no by a margin of 12%. In many rural counties where the amendment won, it did so narrowly. Ohio could see similar success. According to a poll conducted by Baldwin Wallace University in 2022, about 57% of Ohioans think abortion should be legal and 59% said they would vote yes to amend the state constitution and protect it (nearly 15% were undecided).

Mickey Dollens, a Democrat and member of the Oklahoma House of Representatives, believes that the gap between party politics and policy is not shocking. A fifth-generation Oklahoman, he has seen that juxtaposition play out in his state for years.

“Oklahoma is ruby red,” he says, laughing. But while every single county voted for Trump in 2016 and 2020, “the same state is passing some of the most liberal policies through citizen-initiated ballots.” In 2018, voters passed one of the most progressive medical marijuana laws in the country. In 2020, they voted to expand Medicaid access.

“People like liberal ideas, but they don’t like the term liberal or Democrat,” Dollens adds.

Earlier this year, when Dollens was debating against two bills that aimed to push the voting threshold in Oklahoma up to 60% and 66% respectively — much like Ohio is attempting to do now — he offered a cautionary tale of the new world order. Were these thresholds to be applied retrospectively, “what we would have is legalized cockfighting,” he joked, a blood sport that was made illegal only in 2002 by 56% of voters. And what “we would not have” are the millions of dollars that now flow into Oklahoma’s coffers from the medical cannabis industry, which constitutes a “huge economic driver” for the state, Dollens commented, not to mention the thousands of people who would no longer have access to health care.

State constitutions have always been deserving of the recent limelight. It is state governments, rather than their federal counterparts, that have a long-ignored history of crafting American social policy, argues the political scientist Emily Zackin in her book “Looking for Rights in All the Wrong Places.” In New York state, that has even included the liberty to ski on wider trails, an amendment that was passed in 1987.

A far more important liberty has been education. While there is no explicit protection or right to education in the federal Constitution, in the mid-19th century, states amended their constitutions en masse, requiring the legislature to offer free public education to citizens. Ohio’s constitutional clause was a direct response to these embattled activists making a fuss because their legislature was staying quiet. At a constitutional convention in 1850, supporters of what was then known as the common school movement were so “frustrated with the state legislature’s history of inaction … [they] decided to seek a constitutional provision that would leave the legislature with no choice but to act.” One delegate commented, “It has been said that we ought to trust the management of this interest to the General Assembly,” but the state’s schools had been degenerating rather than improving in “legislative hands.”

States went even further a century later, improving the quality of education on offer when the Supreme Court proved reticent. In San Antonio v. Rodriguez, the highest court in the land ruled that there was no constitutional right to an equal education (let alone an education at all). Schools were funded through property taxes and, over many years, wealthier neighborhoods had more money to spend, creating inequalities in the education system and disadvantaging kids living in poorer districts. In response, in the 1980s and 1990s, the state court ruled that Rodriguez violated the Texas Constitution and required the legislature to update their funding system to give all students a “substantially equal opportunity to access educational funds,” writes Jeffrey Sutton, a judge on the U.S. Sixth Circuit Court of Appeals, in his book “51 Imperfect Solutions.”

Ohio made similar demands. In 1997 and again in 2000, the state’s supreme court ruled that Rodriguez violated its state constitution even if it did not fall foul of the federal one. This led Ohio to innovate — substantially increasing public school funding, injecting “billions of additional dollars” into the system, and turning public schools that were described in one case as “starved for funds, lacked teachers, buildings, and equipment, and that had inferior educational programs,” into something “very different” by 2001, Sutton writes. Complaints were no longer about a lack of buildings or teachers but about the failure of some schools to offer college-level courses. “In Rodriguez, the U.S. Supreme Court said the States could stick with the status quo, yet they did not. And in some cases, the States may have done more than the U.S. Supreme Court ever could have done for the claimants’ cause,” he details. Nor is it only in the realm of education that states have proven themselves mighty players in the experiment of democracy. Property rights, the definition of marriage and even the right to run for office were all born from state ingenuity.

This innovative tact died down during the 20th century, when the Supreme Court began to step in to recognize many rights that state courts were refusing to protect themselves, most notably in the South, says Sutton. Being so enthusiastic to scrap and amend — to enshrine the right to widen ski trails, for example — may have also greatly diminished the value of these foundational documents as litigation tools in the public’s eyes.

But the harsh reality of Dobbs has turned attention back to state constitutions and transformed the Supreme Court from democracy’s gladiator-like defender into one of its many soldiers. The value of state constitutions in advancing rights and demanding change is undeniable — Azevedo and nearly 400,000 signatories recognize this. But, as attacks on direct democracy continue to rise, Ohioans’ ability to bring issues to the ballot has become an increasingly precious right.

From Azevedo’s perspective as a physician, the benefits of an abortion amendment are clear. During the days and weeks following Dobbs, she saw firsthand the confusion, uncertainty and pain that the future could bring to her patients. Parents in the pediatric ward had even begun asking her to prescribe birth control pills for their preteens, she says, worried that they would face the same fate as the 11-year-old girl in the news who was forced to travel to Indianapolis to get an abortion after being raped.

If Republicans succeed in securing the supermajority threshold for ballot initiatives, it may stave off change for now. But if the past year has demonstrated anything, it is that citizens will come out of the woodwork to protect abortion rights.

“There is no waiting till 2024,” Azevedo says.

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