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New Hurdles for Citizen Ballot Initiatives

Ohio legislators aim to head off an abortion rights constitutional amendment.

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This month, the Ohio Supreme Court gave the go-ahead for an August special election on a proposed amendment to make it harder to amend the Ohio Constitution. The change would go into effect just in time to raise the threshold required to pass an abortion rights amendment that is expected to go on the ballot this November — and the timing is not a coincidence.

The amendment, proposed by the state legislature, would raise the proportion of votes required for passing a constitutional amendment from 50 percent of the vote to 60 percent. It would also create more onerous signature requirements for citizen initiatives. Similar measures have popped up in other states. (Most recently, Arkansas voters defeated a proposed supermajority amendment in 2022.) But as with many issues related to state constitutions, the U.S. Supreme Court’s abortion ruling in Dobbs has raised the stakes and brought greater focus to the role of direct democracy in the states.

In 2022, six states had abortion-related measures on the ballot, some establishing and some weakening or eliminating abortion rights. Voters in every one of these states — California, Kansas, Kentucky, Michigan, Montana, and Vermont — came down on the side of abortion rights.

This has contributed to burgeoning interest among abortion rights advocates to put more abortion measures on the ballot, especially in states, like Ohio, where a gerrymandered state legislature supports abortion bans but there is public support for abortion rights and a citizen initiative option for amending the state constitution. This has in turn prompted increased interest from state legislatures in making it more difficult to amend state constitutions, particularly through ballot measures.

Ohio may be a bellwether. The issue before the court in State ex rel. One Person One Vote v. LaRose was narrow but potentially significant for the success of the ballot measure: the timing of the special election in which voters will decide whether to adopt the amendment.

Earlier this year, Ohio enacted a law requiring that special elections be held only on certain dates specified by statute. Votes on constitutional amendments were not included on the list of authorized August special elections, and a separate provision required any special election for a constitutional amendment to correspond with the primary election date, which under Ohio law does not occur in August.

These limits on August amendments had been supported by the secretary of state and local election officials because August elections are expensive to implement and have low turnout. Nevertheless, when the legislature adopted a joint resolution to put the proposed amendment on the ballot, it called for an August 8 election — a move that critics suggested was designed to make it harder to organize opposition to the change.

In a 4–3 ruling, the court concluded that the legislature was within its powers to set an August date, pointing to a state constitutional provision authorizing the Ohio General Assembly to submit a proposed amendment to voters “at either a special or general election as the General Assembly may prescribe.” Citing a 1910 dictionary definition of “prescribe” (the relevant constitutional provision was adopted in 1912), the court concluded that a special election could take place on a date specified in the joint resolution proposing the amendment. The dissent characterized the majority as allowing “the General Assembly to break its own laws” and highlighted that joint resolutions don’t ordinarily have the force of law.

One of the really striking aspects of state constitutions is that they are so much easier to amend, especially in the 18 states that have initiative processes. It’s one of the ways that state constitutionalism is far more dynamic — and populist — than what we’re used to in the federal context. One thing to watch in Ohio is whether this dynamism may end up being used to tighten voters’ ability to change their constitutions going forward.

Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.

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