For 111 years, Ohio voters have lived with a set of rules for amending their state constitution through citizen initiative. The requirements have not changed and the threshold for enactment has always been 50 percent plus one. Today, Republicans in the legislature want to change that. The reason is abortion, and the maneuvering underway there adds to a bigger story about the Republican Party.
The story in Ohio is somewhat convoluted, as legislative and parliamentary processes often are. But the motive is clear: Facing the possibility that abortion rights could be enshrined into the state constitution by a vote of the people later this year, Republicans want to change the rules by making it tougher to pass such amendments by requiring them to receive 60 percent of the vote.
The effort is as transparent as it is cynical. Some proponents of the rule change will not specify that abortion politics is the reason they are rushing to do this. They offer alternative explanations for their thinking, such as protecting the integrity of the state constitution from nefarious special interests and keeping the constitution from being mucked up with all manner of minor or narrow amendments. Proponents of the abortion rights amendment, however, say those explanations are hollow and hypocritical.
This is part of a broader pattern that spreads beyond Ohio and the issue of abortion. It speaks to the state of contemporary politics and the mind-set of many Republican elected officials, who are using their power in state legislatures to undo rules that they see as unfavorable to them. Early and mail-in voting regulations are prime examples of such action. As seems to be the case with abortion in Ohio, Republican lawmakers are trying to change rules when public opinion appears to be against them.
After the 2020 elections, Republicans decried changes made during the pandemic that expanded early and mail-in voting, which has tended to favor Democrats. In some states, they moved to shorten the period for early voting and tighten rules for mail ballots. When Democrats thumped Republicans in early voting again in 2022, some Republican leaders began to acknowledge that they had a problem of their own and that they must learn how to compete more effectively against Democrats in turning out early voters.
Where Democrats appear to have an advantage in popular-vote elections, many Republicans still favor steps to lessen those advantages. Recently, Cleta Mitchell, a conservative legal strategist, told a gathering of donors that Republicans should look for ways to tighten the rules on campus voting, where the party is getting swamped both by lopsided margins for Democrats and higher turnout, as well as mail ballots.
Since the Supreme Court ended the constitutional right to abortion last year in Dobbs v. Jackson Women’s Health Organization and as Republican-controlled state legislatures have enacted or are considering restrictive abortion laws, proponents of abortion rights have turned to state constitutions to preserve such access.
It happened in Kansas shortly after the Supreme Court acted, when 59 percent of voters said they wanted to keep the protection already in the state constitution. It happened in Michigan last November, when about 57 percent of voters approved a reproductive rights amendment in an election that also saw voters reelect Gov. Gretchen Whitmer (D) with a comfortable margin and give Democrats control of both houses of the legislature.
Proponents of abortion rights in Ohio have drawn up a proposed constitutional amendment patterned on the one approved in Michigan. They are in the process of gathering enough signatures to qualify the initiative for the November ballot. An Ohio bill banning abortions after six weeks has been blocked in the courts.
If they succeed, they will need the support of 50 percent of voters plus one to make it part of the state constitution. Ohio has recently moved toward the Republicans, but the majority of public opinion appears to favor abortion rights, as is the case nationwide. Still, it is doubtful the abortion ballot measure could achieve a three-fifths majority.
Shortly after last November, Ohio Secretary of State Frank LaRose and state Rep. Brian Stewart, both Republicans, called for raising the threshold for passage of proposed amendments to the constitution to 60 percent. LaRose did not talk about the issue during his reelection campaign. Nonetheless, he and other proponents recommended the state legislature move swiftly to enact the change during a lame-duck session.
LaRose said the proposal was designed “to help protect the Ohio Constitution from continued abuse by special interests and out-of-state activists.” Later, Stewart said explicitly in a letter to fellow Republicans in the state House that the reason for the new proposal was because the left was trying to do “an end run around us” to put abortion rights into the state constitution and to give “unelected liberals” and allies on the state Supreme Court power to draw legislative districts.
That lame-duck session effort failed. But it has come back during the current legislative session in an even more restrictive fashion. Not only would the measure raise the threshold for passage to a three-fifths majority, it also would put a much heavier burden on the process of gathering signatures to qualify citizen amendments for the ballot.
The current rule is to gather signatures from at least 5 percent of registered voters in 44 counties. The new measure would extend that to all 88 counties in Ohio and would eliminate the curing period, or the time given to correct for faulty signatures. LaRose opposed these signature-related changes, saying they could disadvantage “truly citizen groups” using largely volunteer labor and give an advantage to corporate or other special interests who could afford paid signature gatherers. (The signature gathering changes would not take effect until next year so would not apply to the proposed reproductive rights amendment.)
There is one other wrinkle in all this. Ohio recently did away with its August elections (except in a few cases) on the grounds that they were costly and generally resulted in low turnout. Having failed to enact the rules change measure in the lame-duck session late last year, the first opportunity to take this to the voters would be next November, in which case it would not apply to the reproductive rights amendment.
So now, proponents of raising the threshold for passage of constitutional amendments also want to authorize an August election. State Senate President Matt Huffman (R) said recently that spending $20 million on an August election is worth the money “if we save 30,000 lives as a result.” The Ohio Health Department reported that there were less than 21,820 abortions performed in the state in 2021.
One of the most vigorous opponents of the rules changes has been Michael Curtin, the former editor and former associate publisher of the Columbus Dispatch. Curtin later served in the Ohio General Assembly as a Democrat. He said in an interview that while abortion “is not my issue,” he is outraged by the attempt to change the rules. Curtin has said the system has worked well for a century and that arguments to the contrary are a smokescreen to go after the reproductive rights amendment. “The hypocrisy was sky high,” he said. “It was a naked attempt to get out ahead of the reproductive rights amendment.”
Rob Nichols, a spokesman for LaRose, said the measure to require a three-fifths vote for passage is intended to solve a general problem and is not aimed at any specific proposal. “When we talk about this, we do not talk about it on specific issues or specific groups,” he said. “Everyone thinks it is about them. The abortion people say he is targeting us. Redistricting people say he is targeting us.”
Nichols said the general problem is that the constitution is “too easy to access.” Curtin scoffed at that explanation and proponents of the new rules are hard-pressed to cite examples of abuse. Curtin said that one previous avenue for abuse, amendments that were designed to affect a single special interest, was curtailed in 2015. He and others have been calling the bluff of those pushing to raise the threshold to a three-fifths majority.
Ohio Republicans have a supermajority in both chambers and are moving forward, both to qualify their own amendment for the ballot and to enact a new law to establish an August election. The bill for an August election would require the signature of Gov. Mike DeWine (R) by May 10. The Ohio Senate approved both a few days ago. Final action by the state House could come next week, although the outcome is not preordained.
Rather than trying to convince a majority of Ohio voters that abortion rights should not be added to the state constitution, Republican legislators have decided to try to move the goal posts. As Curtin has said, this represents a clear attempt to take power away from citizens and put it in the hands of statehouse politicians. That is the way things work these days.