The Ohio Supreme Court ruled Monday that Ohio officials must rewrite parts of a ballot initiative state Republicans pushed to raise the threshold for passage of citizen-originated ballot proposals to 60 percent from its current simple majority.
The move is aimed most squarely at an upcoming ballot initiative that would enshrine abortion access in the state’s constitution. The GOP initiative would not, coincidentally, raise the threshold for proposals that originate in the legislature. The ballot initiative raising the threshold will also go before voters in an oddly timed August special election; the abortion proposal will be on the ballot in November.
A collection of groups and individual voters pushed for broad rewrites of the initiative text, including details about what the current thresholds are, to make clear to voters that the proposal would raise them in significant ways.
The Republican-majority court batted down that request, saying that the group has “not shown that voters will be misled, deceived, or defrauded based on the ballot language’s failure to state that the proposed amendment would change constitutional provisions that have been in effect since 1912.”
But the court did order changes to the text, including to the way it described the increased number of signatures a citizen-initiated measure would have to have. It also ruled that Secretary of State Frank LaRose (R) must change the title of the amendment — currently, “Elevating the Standards to Qualify for and to Pass Any Constitutional Amendment” — because the word any gives the impression that these standards would apply across the board. Again, they would not alter the current process for amendments that originate in the state legislature.
Two of the court’s three liberals write in dissent, saying the ordered changes don’t go far enough.
Justice Jennifer Brunner, a former Ohio secretary of state, is strongest in her dissent, sprinkling in swipes at the state General Assembly for ignoring the Court’s redistricting orders and for being swayed by special interest groups.
“The General Assembly will continue to be able to put whatever issue it wants on the ballot if it can obtain approval by three-fifths of each house,” she writes. “And if the General Assembly continues to ignore orders of this court regarding the state legislative redistricting process, gaining a three-fifths vote should not be difficult for it to accomplish.”
She hammers that the new requirements, which, in addition to the raised threshold, include more onerous signature collection requirements and eliminate the opportunity to cure an insufficient ballot, would effectively cut out regular citizens from being able to get a proposal on the ballot.
“Under S.J.R. 2, the ability of ordinary citizens to propose an amendment to the Ohio Constitution by collecting signatures from other citizens would be severely hampered,” she writes. “Only a small number of the wealthiest people in this state could afford to exercise that power, and even they might find it easier — and less costly — to seek constitutional change by simply speaking to members of the General Assembly, to whom they may make generous campaign contributions.”
Justice Michael Donnelly, joined by Brunner and Justice Melody Stewart, writes that the word “elevate” in the ballot proposal’s title “creates prejudice in favor of the measure.”
“The proposed amendment at issue is seeking to make it harder to amend the Ohio Constitution based on an initiative petition than it is under the current constitutional provision,” he writes. “Some might, not implausibly, call this restricting or curtailing or diminishing or limiting the power of the people to amend the Constitution.”
The groups behind the amendment that would enshrine abortion rights in the Ohio constitution are still collecting signatures, and told TPM that they wanted to get on the ballot in 2023 in between major presidential cycles, when much of the newly turbo-charged energy around abortion can be channeled into their state. As Ohio has a Republican state government and conservative-majority Supreme Court, a ballot initiative is the most feasible way to protect access to the procedure. Ohio Gov. Mike DeWine (R) has already signed a law that would ban nearly all abortions in the state, but it’s tangled up in litigation.
In late 2022, state Rep. Brian Stewart (R), in a letter to his colleagues, made abundantly clear what the effort to raise the citizen initiative threshold is about.
“After decades of Republicans’ work to make Ohio a pro-life state, the Left intends to write abortion on demand into Ohio’s constitution,” he wrote. “If they succeed, all the work accomplished by multiple Republican majorities will be undone, and we will return to 19,000+ babies being aborted each and every year.”
The situation in Ohio is unique neither in the push to secure abortion rights through constitutional amendments — an effort that many groups, particularly in red states, are planning or have already begun — nor in Republicans’ attempts to change the rules and thwart them.
While abortion rights advocates are hoping that the anger and motivation unleashed by Dobbs is enough to overcome these manufactured obstacles, many Republicans are banking on their supremacy in red (and, even, many purple) states — often secured by gerrymandering — to rig the game in their favor. The GOP push to raise the threshold brought hundreds of protesters to the statehouse, and has garnered opposition from many local election officials.
Read the Ohio Supreme Court opinion here: