How Conservatives Are Trying To Block Voters From Voting On Abortion Rights

Civil Rights Policy Brief #218 | By: Rodney A. Maggay | February 08, 2024

Featured Photo taken from: www.theguardian.com

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Policy Summary: The term referendum generally refers to any state ballot measure that has been placed on the ballot for voters in the jurisdiction to vote on and decide. While there are six common forms of referendums (legislatively referred constitutional amendment, legislatively referred state statute, initiated state statute, initiated constitutional amendment, the veto referendum and the recall) the general principle is that each form permits voters to approve or disapprove of a state constitutional amendment or state statute, sometimes bypassing the need to go through elected representatives and state legislatures. Each state has its own rules for the referendum process (some states do not have all of the six generally accepted forms) but if approved by the voters, the ballot measure has the force of law of a constitutional amendment or state statute passed by traditional means (passage by both houses of the legislature and signed by the governor or voted for approval if the governor vetoed the bill).

After the United States Supreme Court overturned Roe v. Wade and the federal right to an abortion, seven states held statewide votes regarding abortion rights. In all seven states (California, Kentucky, Kansas, Michigan, Montana, Ohio and Vermont), ballot measures supported by anti – abortion advocates lost. Both red and blue states had ballot measures that sought to expand protections for abortion rights, which in some cases enshrined the right to an abortion into the state constitution and in others defeated measures that sought to curtail abortion rights.

In light of these victories for pro – abortion activists, a number of GOP led state legislatures are now aiming to change the rules for referendums in their state in order to make it harder for ballot measures to qualify to be placed on the state ballot. And some states are even going so far as to change the threshold for a ballot measure to be approved in their state. Just this month in Mississippi, the state House chamber approved a proposal that would ban any abortion related ballot measure on the statewide ballot. In Missouri, a bill was recently introduced that would make initiatives more difficult to be approved by voters in the state – win five of the eight congressional districts plus a statewide majority across the state. In Ohio last year, Ohio Republicans put forth a plan to raise the approval of a ballot measure to 60% from a simple majority in order to make abortion initiatives more difficult to pass but this measure was defeated. And GOP officials in Florida and Nevada have gone to court to try and prevent abortion initiatives from appearing on the statewide ballot but the courts in these states found that the initiatives qualified to appear on the ballot. In 2024, twelve states will decide abortion access initiatives/referendums, which would range from a proposed state constitutional amendment protecting abortion as a fundamental right to allowing abortions under state law.

Policy Analysis: The referendum, initiative and ballot measure process were developed nearly a century ago as a way to give citizens and voters a much more direct way to participate in the political process. Initiatives permitted citizens to put proposed state statutes and constitutional amendments on the ballot if they acquired a minimum number of signatures. This allowed citizens to bypass state legislatures where representatives might be unwilling to sponsor the proposed bill or where passage in the state legislature or by two chambers might be difficult. Referendums were similar but differed in one important respect – referendums allowed voters to approve or repeal a state statute. Currently, twenty – four states have an initiative and/or referendum process.

But these tools of direct democracy participation are being manipulated in an ugly way in the current and ongoing battle for abortion rights and abortion access. The spirit of the referendum and initiative process was to give a voice to the citizens of the state and allow them to express what they wanted without having to wait for a representative to act for them. Voters could express their true will on important issues and approve or disapprove of statutes. More importantly, they could insert important state laws into the state code or state constitutional amendments into the state constitution. As long as the voting populace voted on the measure, there would be a sense that at least a majority of the residents wanted it the way they voted on.

But when seven states across both red and blue states began approving of expanded state and constitutional protections following the overturning of Roe v. Wade, it appears GOP officials became concerned. In order to protect their ability to ban abortions in their states, GOP officials didn’t resort to reasoned arguments to support their position. They instead resorted to changing the rules of referendums and initiatives. These changes in the state rules would allow GOP officials to simply ignore that there might be a majority in their state who approve of expanded abortion protections. Knowing that increased abortion access is a popularly supported position, as evidenced by the victories in the seven states that have had referendums on the issue so far, GOP officials tried to raise the threshold for approval, like they tried in Ohio but which was ultimately defeated. Mississippi’s effort was not even subtle as they are trying to ban all abortion related initiatives from being placed on any Mississippi ballot at all. Some states, seeing as how some initiatives have already qualified to be on the ballot, are resorting to lawsuits to stop implementation, with vague arguments that the ballot measures are confusing or even misleading. And, it has gotten so bad that some anti – abortion groups have crafted campaigns to knock on doors and plead with people to not sign any petition that puts abortion on the ballot in 2024.

What this demonstrates is that many GOP officials do not want to respect the will of the populace. If a majority of voters in states approve of increased abortion access, and this seems likely based on how the support of abortion access played out in the seven states that have had it on the ballot so far, then it seems downright dirty that GOP officials are looking for ways to circumvent the referendum process in order to prevent voters from having their say. If GOP officials have to change the rules, raise the minimum threshold for approval of an initiative or try to outright ban abortion based initiatives from being placed on the statewide ballot, then it seems clear that certain GOP officials are no longer being responsive to their constituents or fellow citizens. These suppressive measures should be re – considered and state officials should allow the referendum process to play out without interference from their dirty tactics. If voters decide to approve increased abortion protections, then at least voters will have been given their say and the electorate will have been able to decide the issue of abortion, without undue influence from GOP legislators, for their state. LEARN MORE

Engagement Resources

• National Conference of State Legislatures (NCSL) – overview of Initiatives and Referendums.
• Politico – news group’s analysis of how conservatives are trying to prevent voters from voting on increased abortion protections and access.

This brief was compiled by Rod Maggay. If you have comments or want to add the name of your organization to this brief, please contact rodwood@email.com.

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