Ballot measures have been critical in defending abortion rights. Now, GOP politicians want to change the rules

Washington — On the heels of the overwhelming success abortion rights supporters saw at the ballot box in the 2022 election cycle, some GOP-led states have undertaken efforts to change the rules governing the ballot measure process, pushing new constraints that make it more difficult for initiatives to not only get on the ballot, but also to win approval. 

In all six states where the issue was on the ballot in 2022 — California, Michigan, Vermont, Kentucky, Montana and Kansas — the pro-abortion rights position won out. Voters in California, Michigan and Vermont all approved ballot measures in their states enshrining abortion rights into their respective constitutions, while proposals restricting abortion access in Kansas, Kentucky and Montana were rejected.

Ohio GOP lawmakers try to raise amendment threshold to 60%

The 2022 elections were the first held after the Supreme Court overturned Roe v. Wade, and abortion-rights supporters aim to build on last year's success. In Ohio, pro-abortion rights advocates are working to put on the ballot this November a measure that would enshrine reproductive rights in the state constitution.

But at the same time they're campaigning to land the proposal, called the "Right to Reproductive Freedom with Protections for Health and Safety," before voters, Ohio Republican lawmakers have mounted their own effort to make it more difficult for constitutional amendments to win approval — by raising the threshold for passing amendments to the state constitution from a simple majority to 60%. 

And last week, amid protests in the statehouse in Columbus, lawmakers voted to send the resolution imposing a supermajority threshold to voters. The 60%-vote proposal will be on the ballot in an election set for Aug. 8 — barring a state court order stopping it — and if voters OK the new supermajority marker, it would apply to initiatives that qualify to go before the electorate in November.

Ohio Republicans have said the push to alter the rules surrounding constitutional amendments stems from an attempt to protect the state constitution from special-interest groups. But Kelly Hall, executive director of The Fairness Project, said the 2022 victories for abortion rights advocates are a motivating factor for GOP state lawmakers to push the changes to the ballot-measure process.

"Lawmakers who are elected to represent the people are clear they don't want the people's view to be expressed in law," she told CBS News. "The harder you make it to participate, the fewer of these issues will be taken out of the backrooms of legislative lawmaking and brought into the public, and that's something elected lawmakers don't want to see happen." 

The proposed amendment to the Ohio Constitution provides that every individual has the right to make their own reproductive decisions, including on contraception and abortion, and prohibits the state from prohibiting or interfering with the "voluntary exercise of this right." 

The measure would allow the state to prohibit abortion after fetal viability, which it defines as "the point in a pregnancy when, in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures."

To qualify for the ballot, supporters need to collect more than 440,000 signatures by July 25, and Jaime Miracle, deputy director of Pro-Choice Ohio, said organizers are ahead of their expected target at this point in the campaign.

"Abortion extremists know they can't win on a level playing field. They can't win because reproductive freedom supporters outnumber anti-abortion folks," Miracle told CBS News. 

Now, abortion-rights supporters are finding themselves effectively running two campaigns surrounding ballot measures, one that aims to defeat the proposed supermajority threshold in August, and a second with the goal of approving the abortion rights ballot initiative in November.

"They know at 50%, we're going to win, so they have to rig the system," Miracle said. "The message it sends to voters is that this Legislature, these anti-abortion extremists are trying to do everything they can to silence the voices of the voters, and that's because their voice is their vote."

Nationwide efforts to change requirements for voter-referendum process

This year, 140 bills were introduced in state legislatures that related to the initiative and referendum process, and 12 measures have been enacted so far, according to data from the National Conference of State Legislatures.

The proposals, some of which will require approval from voters after they clear statehouses, like Ohio's, include changes to the signature-gathering process in order for initiatives to qualify for the ballot and increases to the threshold for constitutional amendments to win approval, while others are technical.

Arkansas and South Dakota

In Arkansas, the GOP-led legislature approved and Gov. Sarah Huckabee Sanders signed legislation that increased the number of counties in the state that signatures must be collected from 15 to 50 of the state's 75 counties.

But the League of Women Voters of Arkansas and state Sen. Bryan King, a Republican, are challenging the law in state court, arguing it places "unwarranted and unconstitutional restrictions on the ability of citizens to circulate petitions." The change, they said, will prevent initiatives and referendums from being placed on the ballot beginning in November 2024. The state is asking a judge to toss out the case.

King was one of two Republicans to oppose the bill in the Arkansas Senate, and he believes it will close off an avenue for voters to go around state lawmakers to change laws they disagree with and directly challenge their government.

"A lot of this boils down to whatever political party is in power. They want to insulate themselves from their own decisions," he told CBS News, adding that such efforts will lead to more disillusionment from voters toward their elected officials.

In addition to the measures considered in 2023, state lawmakers introduced more than 200 legislative proposals in 2022, just under 10% of which were enacted, according to Ballotpedia.

In Arkansas and South Dakota, measures that would impose the supermajority threshold for the adoption of constitutional amendments and ballot initiatives failed, while Arizonans approved changing the required support needed to pass ballot measures related to taxes.

Those efforts were aimed not at keeping abortion off the ballot, but other issues where there is daylight between voters' policy preferences and those of their elected officials.

"The abortion issue is adding fuel onto an already-burning fire that conservatives have watched as red states have passed so-called progressive issues at the ballot box — raising the minimum wage, expanding Medicaid, decriminalizing marijuana, rank-choice voting," Hall said. "They're seeing the tool is being wielded particularly effectively even in Republican-trifecta states, so they're working to shut that change down."

She warned that enacting new rules to add new impediments to the initiative process raises the barriers for participation in direct democracy and will ensure only campaigns backed by deep-pocketed industries succeed.

"More signatures needed, more distributed among geographies, bureaucratic barriers like volunteers and others collecting signatures go through background checks, it's a lot of things that these extremist legislatures are trying to put in the way of people qualifying these initiatives for votes by the people," she said.

Missouri

Beyond the new changes in Arkansas and Ohio's proposal, Republicans in the Missouri Legislature attempted during their legislative session this year to scrap the simple-majority vote needed to amend the state constitution and boost it to 57%.

But state senators failed to adopt a measure that would have sent the issue of raising the threshold to voters, and their inaction left GOP state lawmakers fuming that it would pave the way for Missouri voters to approve an initiative restoring abortion access in November 2024.

"The Senate should be held accountable for allowing abortion to return to Missouri," Republican House Speaker Dean Plocher told reporters last week.