On Tuesday, November 7, voters in Ohio went to the polls and voted to enshrine the right to abortion in the state constitution and legalize recreational marijuana use (Issue 1 and Issue 2 on the ballot respectively). Issue 1, the enshrinement of abortion rights into the Ohio State Constitution, was a particularly noteworthy outcome as it came just 18 months after the US Supreme Court voted to overturn Roe v. Wade.
The contentious matter of abortion rights made it onto the ballot as a citizen initiative. In Robert Dahl’s Polyarchy, he emphasizes the importance of inclusive suffrage to ensure the participation of as many citizens as possible. Ballot initiatives, one of several types of citizen-initiated ballot measures, are one of the most direct avenues towards direct and universal participation, bypassing the legislature to place new laws or constitutional amendments directly onto the ballot to be approved or rejected by a simple majority. Initiatives begin with petitions– once a petition gains a specified amount of signatures, the proposal is placed on the ballot and put up for approval or rejection. Another pillar of polyarchy is open competition– ballot initiatives give citizens with diverse perspectives and varying political interests the chance to propose initiatives. The accessibility and transparency of this process make it a strong avenue for continued preservation of democratic fundamentals. Issue 1’s resounding approval in Ohio reflects the importance of ballot initiatives as a strong way of upholding direct democracy.
Issue 1 passed with a solid 56% majority, marking the seventh state to successfully approve abortion rights through ballot initiatives since the Dobbs v. Jackson ruling and sending a clear message as candidates begin to gear up for the 2024 election cycle– voters on both sides are still very much outraged following the overturning of Roe v. Wade last year. Additionally, the copartisan support for the measure says a great deal about partisanship and polarization, supporting one of Rachel Kleinfeld’s rules of polarization– American voters are far less polarized than one would think. The resounding bipartisan support proves Kleinfeld’s point– citizens will vote for different parties due to priorities on the ballot, but when an issue like abortion is challenged so directly, voters from both parties show up to protect it. This is even more striking when considering the exit poll data from these elections– support for the abortion measure was sky-high across liberals, conservatives, and moderates alike, despite Ohio having been a red state in the past two presidential elections. Abortion is not as polarizing of an issue as most politicians would have people believe. Following the Dobbs decision, the paths around the landmark decision for abortion rights groups seemed scarce, but ballot initiatives have proved to be an effective path forward, showing perhaps a bit more disdain for the Dobbs ruling than most would have expected. These ballot measures may even call the integrity of the court into question– if voters continue to show up to fight back against the Dobbs ruling through citizen ballot initiatives, did the ruling really capture the best interests of the people in the first place?
Prior to the November election, Ohio Republicans held a special election in August to propose a ballot measure requiring a 60% supermajority to amend the State Constitution. They framed it as an effort to protect Ohio’s laws from the influence of wealthy, out-of-state donors– seemingly a smaller-scale version of ‘us and them’ identity politics. This ballot measure was rejected in another bipartisan effort at the polls. Had it not been rejected, it may have proved to be an attempt at a vertical usurpation as the legislature tried to diminish the powers of citizens. In this case, the special election result was an example of voters being the firewall for democracy, turning out to protect their power, as well as an example of successful copartisan gatekeeping on the citizens’ part.
25 of the 50 US States have active citizen initiative and referendum measures in place, allowing about 165 million people to directly make decisions regarding laws and amendments. However, there are about 167 million people in the other 25 US States who don’t have the power to engage in such a direct form of democracy. Issue 1 in Ohio highlights the importance of making initiatives accessible to the public– if democracy revolves around citizens’ preferences and their unimpeded ability to formulate them and have them matter, then every state should allow citizen initiatives as a path to direct democracy. This process should be a part of every state’s constitution, as it allows for direct representation in democracy and upholds civil liberties through respect for individual rights and freedoms.
A controversial aspect of Issue 1 was the ballot language – something that could have heavily influenced the outcome of the vote. Contentious changes to the language– for example, “fetus” versus “unborn child”– could impact voter choices and raise potential questions about whether citizens should be allowed to propose their own amendments. The danger here lies in potential misleading of voters as biased language could change election outcomes and leaves the state susceptible to tyranny of the minority if the language is misleading enough. Prior to the election, the Ohio ballot board attempted to distort the language of Issue 1 and were ordered to rewrite it by the Ohio supreme court due to its unconstitutionality. Despite potential influence, according to an Ohio Northern University Poll, the measure would have passed with either ballot wording, although the margin would have been much smaller. The supreme court and the state constitution act as safeguards against this potential abuse of power by citizens presenting initiatives and against undue influence from other powerful groups like the ballot board.
Unfortunately, Issue 1’s victory in the polls is not the end of the story. It has certainly complicated enforcement of the previously existing 2019 “Heartbeat Bill,” which criminalized abortion beyond six weeks of a person’s last menstrual period. However, it is the Ohio State Supreme Court that interprets the constitutional amendment. It currently holds a 4-3 Republican advantage, meaning that any ambiguity could very well be exploited in court interpretations. This potential exploitation could turn into a textbook example of constitutional hardball; judges would be pushing right up against the guardrails of democracy and toeing a dangerous line.The potential for Republican judges to push the limits of the amendment places heavy importance on the upcoming 2024 election cycle, where three seats will be contested. This danger is apparent in other states as well. The push to get abortion rights on the ballot in Florida next year may be halted in its tracks by the Republican Supreme Court. And in Florida, although judges may be ousted through a vote, it is the governor who selects their replacement– meaning voters are left essentially helpless until the next governor election in 2026.
Ohio’s elections demonstrate the crucial role of citizen initiatives as a pathway to direct democracy, allowing voters to preserve their voices and continue to express their opinions irrespective of the legislature or judiciary. Similar abortion rights initiatives are expected on ballots in many battleground states next year– at least those that allow initiatives. The danger of interpretation loopholes by the Republican-dominated Ohio Supreme Court as well as the role of courts in upcoming abortion battlegrounds illustrates the importance of the 2024 elections, particularly with respect to the State Supreme Court Justices. This has become apparent in states like Pennsylvania and Wisconsin, where pro-abortion-rights judges were chosen and could play crucial roles in their states’ respective abortion battles.
The importance of Issue 1’s approval in Ohio demonstrates the need for citizen ballot initiatives in every state as well as the importance of upcoming 2024 and 2026 elections, particularly for State Supreme Court Justices.