Legislative efforts in Missouri and Mississippi are attempting to prevent voters from having a say over abortion rights, building on anti-abortion strategies seen in other states, including last year in Ohio.
Democrats and abortion rights advocates say the efforts are evidence that Republican lawmakers and abortion opponents are trying to undercut democratic processes meant to give voters a direct role in forming state laws.
The past year saw a continued trend of increased interest in direct democracy, with the highest number of statewide ballot measures for an odd-numbered election year in over 15 years. These measures, which came from both state legislatures and citizen-led initiative campaigns, addressed an array of subjects ranging from reproductive rights to religious rights, public utilities to public benefits, and taxation to timber production.
Many of the measures decided also involved matters related to democracy. These measures presented voters with essential questions like who can vote, how elections should be run, and whether to restrict their own ability to engage in direct democracy in the future. The particulars of the measures varied, as did the voters’ responses. And with the coming presidential election cycle in 2024, voters can expect to see even more of these types of ballot measures in the coming year.
This explainer recaps 2023’s democracy-related ballot measures, exploring the legal and political context in which they were proposed, as well as some of the arguments offered for and against them. It then looks ahead to the democracy-related measures that may appear on the ballot during the pivotal 2024 presidential election cycle….
1. The City of San Diego (the “City”) held an election on an initiative proposing a special tax (Measure C) on the express condition and with the uncontradicted public understanding that a two-thirds majority vote of the electorate was required for its passage. The measure undeniably failed to garner enough “yes” votes to meet that threshold, yet after the votes were cast and counted, the City declared that the measure had actually passed by a simple majority vote. May a city change the outcome of an election by lowering the applicable vote threshold after the election had already been completed?
2. The Elections Code requires that a city council “declare the results” of an election on a ballot measure “no later than the next regularly scheduled city council meeting following presentation of the 28-day canvass of the returns, or at a special meeting called for this purpose.” (Elec. Code, § 10263, subd. (b); see also Elec. Code § 15400.) Here, the City Council waited a full year after receiving the canvass of the returns before declaring that Measure C had passed under a lower vote threshold than stated in the City Clerk’s certification. Does a city have the discretion to delay declaring whether a measure has passed or failed, and to contravene the official certification of the election results by the impartial elections official?
I’ll be watching this one closely.
Issue 1 was projected to fail on Tuesday, according to Decision Desk HQ, dealing a blow to Ohio Republicans who wanted to hamstring a November ballot question on abortion rights.
Decision Desk HQ, an election results reporting agency providing results and race calls for the USA TODAY Network Ohio, called the race around 8:09 p.m. With about 28% of the vote counted, no vote was leading 68% to 32%.
Tuesday’s election was the culmination of a months-long fight that began last year, when Secretary of State Frank LaRose and Rep. Brian Stewart, R-Ashville, first introduced a plan to tighten the rules for constitutional amendments. The debate played out in the halls of the Ohio Statehouse, on the campaign trail and even in the courtroom as opponents tried to stop GOP lawmakers in their tracks.
Proponents of the measure said they want to keep controversial policies out of the constitution and reserve it for the state’s fundamental rights and values. Critics argued the ballot measure was a power grab that would hamstring the rights of citizens to place an issue on the ballot….
Republicans made it clear that they wanted to hold the election before November, when Ohioans will decide whether to enshrine reproductive rights in the constitution. That turned Tuesday’s election into a nationally watched proxy war over the abortion debate, as Ohio is the only state voting on the issue in 2023.
Even with such high stakes, convincing Ohioans to pay attention to a convoluted political issue in the summer cost both sides millions of dollars
Murray and Shaw NYT Oped:
In Dobbs v. Jackson Women’s Health Organization, the Supreme Court justified its decision overruling Roe with an appeal to democracy. In the Dobbs majority opinion, Justice Samuel Alito wrote that the conclusion in Roe that the Constitution protected the right to abortion had stripped the American people of “the power to address a question of profound moral and social importance.” On this logic, the Dobbs decision merely corrected an egregious error, returning the power to regulate abortion “to the people and their elected representatives.”
Despite this paean to democracy, in the past year, elected officials in a number of states have demonstrated a disturbing hostility toward democracy when it is used to protect abortion rights and reproductive freedom. In that time, more than a dozen states have banned abortion, through the enforcement of pre-Roe abortion bans or the enactment of new ones. In other states, abortion access has been severely limited.
But one important countervailing trend in the post-Dobbs era has been the use of direct democracy to protect abortion rights. The mechanisms of direct democracy — referendums, initiatives, ballot questions and the like — allow voters to register their preferences directly, bypassing elected officials and other intermediaries.
These vehicles have proved remarkably effective. Since the fall of Roe, every time Americans have gone to the polls to vote directly on matters of abortion, they have voted to protect reproductive rights, expanding protections for abortion access and rejecting efforts to roll back access to abortion.
Perhaps that is why many Republican officials — many who once celebrated Dobbs and the prospect of democratic deliberation — are now laboring mightily to restrict access to direct democracy.
Supporters of reproductive freedom across the country must continue to flock to the polls to defeat efforts to throttle democratic processes where they are being used to limit democratic deliberation on abortion.
Nowhere is this imperative more pressing than in Ohio, where one of the most brazen attempts of this kind is underway. There, elected officials are seeking to erect obstacles to amending the state Constitution, almost certainly to prevent Ohio voters from enshrining reproductive freedom in that state’s charter.
John Matsusaka has posted this draft on SSRN. Here is the abstract:
Direct democracy backsliding occurs when a state alters its laws to hinder the use of initiatives and referendums. This study quantifies the prevalence of direct democracy backsliding over the period 1960-2022, and investigates its causes. I find a continuous chipping away at direct democracy throughout the period; legislatures proposed 2.3 amendments restricting direct democracy every two-year electoral cycle on average, and there were four amendments restricting direct democracy for one expanding it. Contrary to media speculation, the amount of such activity is not unusually high recently. Using time series and cross-sectional variation with state and year fixed effects, I identify two factors that triggered anti-direct democracy proposals: Republican control of the state legislature, and successful initiatives and referendums. I develop a theoretical framework to characterize the motives for direct democratic backsliding, and provide evidence suggesting that strategic motives – restricting direct democracy to induce favored policy outcomes – may be less important than philosophical preferences over processes, including objections to citizen lawmaking in principle. Anti-direct-democracy efforts were largely driven by elites – ordinary voters did not appear to share the negative orientation of their elected representatives.
Politico: “National Democrats had all but written off Florida as a lost cause — a former purple state turned solid red by the MAGA movement and Gov. Ron DeSantis. But key party leaders in the state, desperate to turn things around in 2024, are confident that citizen initiatives dealing with abortion rights and recreational marijuana legalization could fuel turnout and boost the party’s chances.”
After an abortion rights amendment qualified to appear on the November ballot in Ohio, a new lawsuit from Republicans asks the Ohio Supreme Court to block the measure.
Filed on Friday, the challenge argues that the abortion rights petition did not identify which state laws would have to be repealed if the constitutional amendment were to be adopted….
The legal challenge came three days after the Ohio Secretary of State Frank LaRose approved the amendment for the November ballot, certifying that the required number of valid signatures were obtained to put the issue before voters.
The Fix on the August ballot measure that would raise the threshold for amending the state constitution from 50% plus one to 60%, in order to make it more difficult to enact an abortion rights initiative later this year:
It turns out that not only do voters overwhelmingly oppose changing the rules for amending the state constitution, but also that the abortion rights measure might have gotten to 60 percent anyway.
Suffolk University provided the data.
We learned last week that Ohioans opposed State Issue 1 — raising the ballot measure threshold, among other restrictions on the process — 57 percent to 26 percent.
Now Suffolk has released numbers on the abortion measure specifically, and the deficit for the GOP is similarly lopsided: Ohioans support the amendment 58 percent to 32 percent.
In related news, Ohio Capitol Journal reports: “Once a rallying point to exclaim about unsubstantiated fraud, Ohio Republicans are embracing mail-in and early voting ahead of the August 8 special election.”
Marin Independent Journal reports:
AB 1416, which became effective in January, requires that the supporters and opponents of statewide and local measures be listed on ballots. However, the law allows counties to opt out of participating.
On Tuesday, Marin County supervisors voted 4-1 to do just that, at least for the 2023 and 2024 election cycles. Supervisor Mary Sackett cast the dissenting vote.
The majority chose not to follow the recommendation of the county’s election advisory committee, which voted 6-4 to recommend implementation of the law.
As the August 8 special election for Issue 1 in Ohio approaches, many voters are taking advantage of early voting.
According to Ohio Secretary of State Frank LaRose, as of Wednesday, 155,000 absentee ballots have been cast so far.
Since 1912, Ohio has used a simple majority of voters statewide to pass a constitutional amendment. Issue 1 would raise that threshold to 60% of the vote.
To get to the ballot box, voters need to keep in mind changes made to voter ID laws last year, in a late-night legislative move approved by Gov. Mike DeWine at the beginning of 2023.
Those changes, made through House Bill 458, mean different identification allowed at the polls, and limits to the absentee ballot dates….
Ironically, HB 458’s original intent was to eliminate most August elections, a GOP-supported measure back when the bill was passed due to the cost of an extra primary and the historically low turnout.
Since then, Republicans have backtracked, re-implementing the August election specifically for the purpose of Issue 1, the measure to require citizen-initiated ballot measures to have signatures in all 88 counties in the state and 60% voter approval.
On Monday, Alaskans for Better Elections filed a complaint against former Republican U.S. Senate candidate Kelly Tshibaka, a nonprofit that she operates and Alaskans for Honest Elections, which is campaigning to repeal ranked choice voting in Alaska.
The complaint alleges that Tshibaka and her nonprofit, Preserve Democracy, have been lobbying and campaigning without registering with the Alaska Public Offices Commission or submitting regular financial disclosures, something required by law.
The complaint further suggests that Preserve Democracy sent mailers to select voters in the spring Anchorage municipal election without reporting to the commission.