NRPLUS MEMBER ARTICLE O n Tuesday, Ohio voted 57 percent to 43 percent against Issue 1, a ballot measure that would have increased the threshold for amending the state constitution via ballot initiative from 50 percent of votes cast to 60 percent.
The outcome was another sign of the strength the Left has shown in special elections held since the Dobbs decision in June 2022. With a referendum to add a pro-abortion amendment to the Ohio constitution looming in November, turnout for the “no” vote on Issue 1 was high. More than 3 million Ohio voters cast ballots on Issue 1 — a strong showing for an August referendum, but still 1 million fewer votes than were cast in last November’s midterms. The dropoff in turnout was steeper among Republicans than Democrats. An August election in an odd-numbered year is almost by definition going to be a base election, and the progressive base has been more revved up in special elections since June 2022. As one liberal pundit put it, “The weirdly timed election gimmick now plays into the hands of Democrats’ highly educated neurotic base.”
While turnout was part of the story, there has been little evidence in recent years of voters’ wanting to make it more difficult to enact laws at the ballot box — even when abortion wasn’t a major driving force behind such proposals. In early June 2022, South Dakotans voted 67 percent to 33 percent against establishing a 60 percent threshold for ballot measures increasing taxes or appropriating more than $10 million. In November 2022, Arkansas voters rejected a ballot measure to establish a three-fifths threshold for initiatives enacting a constitutional amendment or statute, 59 percent to 41 percent.
The failure of Issue 1 does of course have significant implications for abortion. In the short term, opponents of the proposed Ohio abortion amendment have their work cut out for themselves. While polling that underestimated Republican support before the November 2022 election found Ohio voters evenly divided on the state’s six-week abortion ban (currently enjoined by a lower-court ruling), a recent Suffolk poll found that 57.6 percent of Ohioans support the pro-abortion-rights amendment when the text of the measure is read to them. As a recent National Review editorial explained, “the proposed amendment is extreme in ways the average voter would not know simply from reading the text.” The text of the amendment gives voters the false impression there could be meaningful limits on late-term abortion. The text doesn’t explicitly say anything about providing unlimited taxpayer funding of abortion for Medicaid recipients, or creating a right for minors to get puberty blockers or get an abortion without parental consent, but it is written in a lawyerly way to ensure that it would do both of those things. The mainstream media are not going to educate Ohio voters about what the amendment would truly do; that task is going to fall entirely to those who believe the proposed amendment goes too far.
If the November Ohio abortion referendum turns out along the same lines as Issue 1, it would be another example of the pro-life side losing an up-or-down ballot measure even as pro-life candidates emerged from the Dobbs decision mostly unscathed. Pro-life GOP governors who signed pro-life laws paid no electoral price in the November elections. Ohio governor Mike DeWine, after signing a six-week abortion limit into law, won reelection by 26 points. Georgia GOP governor Brian Kemp won reelection in 2022 by eight points in a state Trump lost in 2020 after Kemp had signed a six-week abortion limit into law. The GOP Senate candidates who lost in key battleground states would have won if they’d simply earned as many cumulative votes as pro-life GOP House candidates in those states.
In Kentucky, GOP senator Rand Paul won reelection by 24 points at the same time as a ballot measure declaring there was no right to abortion in the state constitution failed by four points. To see how the post-Dobbs environment upended the dynamics of abortion referenda, compare the 2022 losses for pro-lifers in Kansas and Kentucky with the 2020 Louisiana election in which voters passed an amendment declaring no constitutional right to abortion by a 24-point margin. That big swing was due both to the reality of abortion laws taking effect and confusion about what those laws mean. “Perhaps the single most important thing pro-life officials can do right now is work to ensure all hospitals act on the correct understanding that every abortion law includes an exception at least to protect the life of the mother, and that no law requires doctors to wait until a threat is imminent to provide treatment,” a National Review editorial argued.
It’s not unusual that an issue might lose in a referendum but fail to sink a candidate whose position is on the wrong side of public opinion. Consider the fights over public-sector unions in 2011: Ohio voters repealed the state’s law paring back the collective-bargaining power of such unions 62 percent to 38 percent, but Wisconsin voters rejected the June 2012 effort to recall Governor Scott Walker over his collective-bargaining reform by a seven-point margin. Different rules yielded different results: Wisconsin doesn’t have activist-initiated referenda, and Walker’s public-union law has remained in effect for over a decade.
One lesson from pro-life losses at the ballot box is that Roe’s fall is not a good reason to jettison the strategy of pro-life incrementalism. Pro-life gains may need to be made in smaller increments in red states where ballot measures can and do overturn pro-life laws. While about half of all states have laws with significant limits on abortion, there are ten states where those protections for unborn lives could be rolled back via ballot initiative.
“Ohio is one of 10 states that both significantly restricts abortion (or soon might) and allows citizen-sponsored ballot initiatives. The others are Arizona, Arkansas, Florida, Missouri, Montana, Nebraska, North Dakota, Oklahoma and South Dakota,” David Leonhardt reports at the New York Times. “Efforts have made relatively little progress in Arkansas, Nebraska, North Dakota or Oklahoma. The same is true in Montana, although abortion remains legal there, despite state officials’ attempts to restrict it.” Florida established a 60 percent threshold for constitutional amendments two decades ago, so pro-lifers have decent odds of beating back a radical pro-abortion amendment there. A similar amendment was enacted in Democratic-leaning Michigan in 2022 with 56.7 percent of the vote.
In the United States, constitutional amendments placed on the ballot by activists aren’t sacrosanct: Only 18 states allow them, and half of those states that allow them have a requirement greater than a single simple-majority vote for enactment. (An additional eight states allow voter-initiated referenda for statutes but not constitutional amendments.) But there’s little evidence that voters anywhere will increase the threshold for passing a referendum via a referendum, as they were being asked to do in Ohio. And that means both sides of the abortion debate will have to play under the existing rules for the foreseeable future.