State Courts Can Provide Much-Needed Protection From Voter Deception

In the 2024 election, advocates placed several hot-button initiatives on state ballots, with varied results. Abortion rights initiatives passed in conservative states like Missouri, Montana, and elsewhere, while similar initiatives failed in Florida, South Dakota, and Nebraska. In Ohio, an initiative that would have ended partisan gerrymandering failed, though similar initiatives have passed in previous elections in Arizona, Michigan, and California.

While numerous factors drove these divergent outcomes — Florida’s constitution requires a supermajority of 60 percent to approve any amendment, for example — state courts played a key role as well. Initiatives fared better in states like Missouri and Montana, where courts intervened to protect voters from state-sponsored disinformation, than in Florida and Ohio, where courts refused to do so.

In Missouri, once a citizen initiative has been approved for the ballot, the secretary of state drafts a description to appear alongside it. Secretary of State Jay Ashcroft, an avowed abortion opponent, drafted an inflammatory and negative description for that state’s abortion rights initiative. The secretary’s description falsely stated that the initiative would allow “dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice.” Supporters of the initiative sued. A lower court judge ruled that the language was “unfair, insufficient, inaccurate and misleading,” and a state appellate court agreed. The courts rewrote the ballot description in clear and neutral descriptive terms, requiring that voters be asked, at the outset, “Do you want to amend the Missouri Constitution to: establish a right to make decisions about reproductive health care, including abortion and contraceptives, with any governmental interference of that right presumed invalid,” and that they be reassured that the initiative would not interfere with reasonable health regulations. Armed with accurate information, voters chose to establish this express right. (The courts also intervened at an earlier stage to prevent the state attorney general from blocking the initiative.)

Similarly, in Montana, Attorney General Austin Knudsen drafted the required ballot statement to falsely inform voters that the initiative would “allow post-viability abortions up to birth” and prevent the enforcement of “medical malpractice standards against providers.” Initiative proponents sued. Holding that the attorney general’s draft language “would prevent a voter from casting an intelligent and informed ballot,” the state supreme court drafted its own neutral description, informing voters that the initiative “would amend the Montana Constitution to expressly provide a right to make and carry out decisions about one’s own pregnancy, including the right to abortion” and “prohibit the government from denying or burdening the right to abortion before fetal viability.” (As in Missouri, Montana courts also intervened to prevent officials from blocking the initiative altogether.) Once again, with access to clear and unbiased information, voters chose, by a more-than-15 point margin, to protect abortion rights.

One more state’s courts deserve mention for protecting voters from state-sponsored deception this election: Utah’s. Courts there blocked an underhanded legislative effort to persuade voters to reverse a recent successful ballot initiative reforming the redistricting process.

The initiative process played out very differently in Florida. The Florida governor and his administration unleashed a barrage of disinformation aimed at deterring voters from approving an abortion rights initiative. And when the initiative campaign sought protection from the state courts, the state supreme court turned them away.

Specifically, the court allowed the administration to set up a website devoted to scaring voters about the effects of the initiative (“Florida Cares”), including that it “threatens women’s safety.” And it allowed the administration to put out a comically inaccurate fiscal impact statement warning that the initiative, if passed, could cost taxpayers by leading to litigation, public funding requirements, and a smaller future population. (In reality, experts believe that reproductive rights protections benefit the economy by enabling more women to remain in the workforce, reducing social welfare costs, and improving health and education outcomes for patients and their families.) Support for the initiative shrunk in Florida just before the election, from 69 percent in July 2024 (before the disinformation campaign took off) to just over 57 percent in the election (still strong, but just short of Florida’s supermajority requirement).

Another state-sponsored disinformation campaign may have tanked an Ohio initiative that would have ended partisan gerrymandering. Despite already having an express constitutional prohibition on partisan gerrymandering, the legislature for years has defied court orders enforcing that prohibition and drawn maps extremely gerrymandered to favor Republicans. This year, a bipartisan group of pro-voter advocates (including the Brennan Center) drafted a citizen initiative to take redistricting out of the legislature’s hands altogether and place it under the control of an independent redistricting commission subject to neutrality requirements. Similar initiatives have passed elsewhere and have led to fairer maps that elect representatives better aligned with public opinion.

Only a few months ago, the idea of ending the legislature’s partisan gerrymandering polled at 60 percent, attracting bipartisan support. Then the secretary of state and Ohio Ballot Board (by a 3–2 vote) imposed a truly Orwellian ballot description, warning voters that the initiative would actually “require” partisan gerrymandering and “eliminate” constitutional protections. This language would seem to be a textbook violation of the constitutional requirement that ballot language “properly identify the substance of the proposal to be voted upon,” be descriptive rather than persuasive, and not “mislead, deceive, or defraud” voters, as well as the statutory requirement that the board not “create prejudice for or against the measure.” A bare majority of the state supreme court held otherwise, in a decision characterized by the dissenting justices as “absurd,” “lacking in integrity,” and “an abject failure” of judicial review. Unsurprisingly, the ballot description confused voters, causing some to vote against the measure even though they supported it in substance. The initiative lost by about seven points.

One lesson from the 2024 election is that state courts play a major role in overseeing how officials communicate with the public about the issues being put to a popular vote. When courts refuse to enforce protections against voter deception, these officials have more power to bend the results to their own preferences.

Alice Clapman is a senior counsel at the Brennan Center for Justice.

Stuart DeButts is a student at CUNY School of Law and a former intern with the Brennan Center for Justice.

Suggested Citation: Alice Clapman & Stuart DeButts, State Courts Can Provide Much-Needed Protection From Voter Deception, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Dec. 19, 2024), https://statecourtreport.org/our-work/analysis-opinion/state-courts-can-provide-much-needed-protection-voter-deception-0