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This Week in Statehouse Action: No Rules, Just Right edition
To paraphrase Walter Sobchack, this is not ‘Nam. There are rules.
…although, as an erudite consumer of this missive, you know that Republicans in a non-negligible number of statehouses enjoy changing or simply ignoring certain rules when it suits them.
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(Not that Democrats are immune from this, they just do it vanishingly infrequently – feel free to hit me up with your favorite examples; bullshit and bullshit callouts know no party.)
We’re going to start with Ohio, since it’s pretty much ground zero at the moment in terms of GOP state lawmakers changing the rules when it suits them – or at least trying to.
This is a bit of a saga, so let’s start from the beginning.
In 2019, Ohio’s Republican-majority legislature passed a law banning abortion after six weeks of pregnancy — which is before many women even know they’re pregnant.
That law was essentially a “trigger law” that took effect right after Roe was overturned last year.
But last fall, a county judge effectively put an indefinite hold on it, saying that the Ohio constitution provided a “fundamental right to abortion” in part because it grants equal protection to women.
Consequently, despite the best efforts of GOP lawmakers, abortion remains legal up until 22 weeks of pregnancy in the state.
Ohio Republicans could have gotten to work amending the state constitution to, say, specifically state that abortion rights are not protected by it, but they didn’t.
I’d never presume to know what on a person’s or caucus’ mind, but it’s a fair guess that all or some combination of the following reasons were at play:
GOP infighting: One-party dominance in a state has a tendency to breed fractiousness. Republicans have healthy supermajorities in both chambers of Ohio’s legislature (and a GOP governor), and the intense House GOP infighting you might remember reading about in this space early this year may have died down, but there’s no reason to think that all the political hatchets have been buried and everyone is besties again. So, while it’s the unlikeliest possibility here, it’s not inconceivable that legislative Republicans lack confidence that they can scrounge the 3/5 majorities in each chamber needed to place an anti-abortion constitutional amendment on the ballot for voters to approve.
Anti-abortion ballot measures’ poor track record at the ballot box since the fall of Roe: It’s more likely, however, that Ohio Republicans don’t want to take the L they fear voters will hand them over this issue, since proposed constitutional amendments, even when proposed by the legislature, have to go before the voters for approval.
Electoral outcomes since SCOTUS overturned Roe v. Wade absolutely suggest that, all things being equal, Ohio voters will reject legislative Republicans’ attempt to strip abortion protections from the state constitution.
Since the Dobbs decision, voters in six states have either established or upheld abortion rights, including in GOP strongholds like Kansas, Kentucky, and Montana (California, Michigan, and Vermont were the other three).
In states where citizen-initiated ballot measures and/or constitutional amendments are allowed, pro-reproductive rights activists have correctly realized that this kind of initiative is a viable way to protect these freedoms.
Even in a solidly red state like Ohio (though not as red as its legislative margins – 32 D/67 R in the House, 7 D/26 R in the Senate – suggest; gerrymandering is a hell of a drug), protecting abortion rights polls well.
Just this week, a Suffolk University poll showed significant support for a ballot measure amending the Ohio constitution to outright guarantee reproductive freedom; 58% say they’d favor such an amendment (32% are opposed).
And Ohio voters will, in fact, have the opportunity to vote on such a ballot measure this fall; state officials announced this week that a pro-abortion rights citizen-initiated constitutional amendment had enough signatures from Ohio voters to appear on the ballot.
This amendment would establish “a fundamental right to reproductive freedom” with “reasonable limits,” and it would incorporate restrictions reflecting the standard under Roe v. Wade, which kicked in around the 24th week of pregnancy and allowed for patient health and safety concerns.
The thing is, though, that Republicans really don’t like losing, and they've gotten so used to being able to rig their own district elections in their favor that they can’t abide by a free and fair statewide vote that they’ll probably come out on the losing end of.
Obvious solution: Figure out a way to rig those statewide votes, too.
Republicans can’t gerrymander a statewide referendum, but they can change the rules.
And in Ohio, they’re using another constitutional amendment to do it.
A different proposed constitutional amendment that will be voted on next month (Aug. 8) will determine whether the abortion rights amendment needs a majority of the statewide vote or an arbitrary supermajority of 60% to pass.
Here’s why we know any Republican who claims this other ballot measure (SJR 2) isn’t just about killing the reproductive freedom ballot measure is lying.
And supporters of SJR 2 are, in fact, attempting to claim that the August vote to raise the passage threshold ahead of the November vote on the abortion amendment isn’t actually about that.
And maybe, as some allege, lawmakers really have been debating the idea for years. But Republicans only found the political will to actually force the issue after reproductive rights supporters formally began the process of placing a pro-abortion amendment on the ballot in February.
Talk is cheap. The timeline of events tells a very different story than the one Republicans are pushing.
June 2022: The U.S. Supreme Court overturns Roe v. Wade.
August 2022: Voters in Kansas rejected an amendment that would have eliminated the right to reproductive freedom the state’s Supreme Court has ruled exists in the state’s constitution.
November 2022: Kentucky voters rejected an amendment similar to the one that failed in Kansas. Voters in California, Michigan, and Vermont approved amendments specifically enshrining reproductive rights in those state constitutions.
December 2022: Republican lawmakers in Ohio, where citizens can place constitutional amendments on the ballot, began attempting to raise the threshold required for passing a constitutional amendment at the ballot box to 60% during their lame-duck session. The measure reached the House floor but never received a full vote in either chamber.
February 2023: Groups advocating for abortion rights submitted fall ballot language for a constitutional amendment guaranteeing Ohioans’ access to abortion. Supporters needed to collect at least 413,446 valid signatures before July 6 to qualify for the next election date (November 2023).
March 2023: GOP lawmakers introduce SJR 2, which would raise the passage threshold for amendments from a simple majority to 60%. SJR 2 also sets a special election date for its own passage (ironically, by a simple majority) for Aug. 8, 2023, ensuring that, if passed, the 60% threshold will apply to the pro-reproductive rights amendment.
The bill also effectively gerrymanders the signature-gather process for future citizen-initiated constitutional amendments, changing it from the current requirement of half a percent of registered voters from half the state’s counties to 5% of the voters from every single county in the state (which, of course, vary widely in population).
June 2023: After the legality of the Aug. 8 special election to pass SJR 2 was challenged, the Ohio Supreme Court issues a party-line (4-3) ruling approving it.
July 2023: Proponents of the pro-reproductive rights ballot measure submitted over 700,000 signatures in their quest to place the amendment on the ballot. Ohio Secretary of State Frank LaRose announced this week the signature threshold had been met and that the ballot measure will go before voters in November.
August 2023: On Aug. 8, we’ll find out if the pro-abortion amendment will need a majority or a 60% supermajority to pass in November.
The same poll that found that 58% of Ohioans support the pro-reproductive freedom amendment also showed the anti-democratic amendment (which will appear on the ballot as Issue 1) failing 59-26%.
These levels of support/opposition are nothing to sneeze at; winning/losing percentages of 58-59% are the stuff of gerrymandered districts.
But they also highlight Republicans’ true purpose behind raising the passage threshold.
It’s not lost on Ohio Republicans that the winning percentages for recent abortion rights votes in the red and purple states of Kansas, Kentucky, and Michigan (yes, it’s purple, not blue, fight me) were between 52% and 59%.
Again, these are extremely healthy statewide win margins.
Which is why Ohio Republicans are trying to change the rules.
And they’re not the only ones.
Ohio’s not the only GOP-controlled state where citizens are fighting for reproductive rights at the ballot box.
In Missouri, abortion rights supporters are trying to place a constitutional amendment restoring reproductive freedom in the state on the 2024 ballot. Abortion is currently pretty much totally banned in the state (with narrow exceptions for extreme medical emergencies).
And Missouri Republicans are doing pretty much anything they can think of to either keep the measure off the ballot or ensure its failure.
First off, GOP lawmakers are trying to raise the passage threshold for constitutional amendments from a majority to 57%.
The effort failed this year, but GOP lawmakers will absolutely try again when they reconvene for session in January.
And frankly, the push will probably succeed; Republicans have supermajorities in both legislative chambers.
Plus, the proposal only failed this year because of one GOP state senator’s spite.
On the final day of session, Republican Sen. Bill Eigel held up the passage of all remaining bills – including the amendment threshold-raising legislation – until his colleagues passed his own legislation cutting personal property taxes (which they did not).
And Eigel didn’t just quietly block those other bills; he made his legislative hostage-taking … theatrical.
“There are moments for all of us on God’s earth where we will face our own Darth Vader moment,” Eigel said. “We will face that moment where individually, we must decide who we are.”
Sen. Nick Schroer, a Republican ally of Eigel’s, later blasted Vader’s theme song loud enough to be heard down the halls.
So, Missouri voters may or may not be saddled with an arbitrary 57% passage threshold for constitutional amendment ballot measures next year.
But that’s not the only hurdle reproductive freedom advocates face.
Next up: Secretary of State Jay Ashcroft, whose daddy was so offended by a couple of statues’ boobs that he spent $8,000 of taxpayers’ money to cover them up.
It seems as though the Ashcrofts have no respect for any part of female anatomy, though.
As Missouri secretary of state, baby Ashcroft gets to craft the language used to summarize and describe ballot initiatives for voters.
And WOW did that dude craft some language.
Do you want to amend the Missouri Constitution to:
allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice;
nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion;
require the government not to discriminate against persons providing or obtaining an abortion, potentially including tax-payer funding; and
prohibit any municipality, city, town, village, district, authority, public subdivision, or public corporation having the power to tax or regulate or the state of Missouri from regulating abortion procedures?
Ashcroft’s blatant ballot propaganda has already and will certainly continue to face legal challenges.
Missouri Attorney General Andrew Bailey also did his part, so to speak, to obstruct the proposed amendment’s path to the ballot.
As part of the procedure for any ballot measure to qualify, the proposal was sent to the state’s auditor, who provided a cost estimate for the proposed initiative.
The auditor, who is also a Republican who opposes abortion, claimed the proposal would have an estimated cost of at least $51,000 annually in reduced local tax revenues.
Bailey, whose office has to sign off on the basic legality of such estimates, rejected this estimate and instead alleged that the measure would likely cost taxpayers “upward of $12 billion” (yes, with a b) because of fewer births and loss of Medicaid funding.
This is obviously stupid, but more importantly, offering such estimates is very much not the attorney general’s job, and the state Supreme Court accordingly slapped him down.
The ruling helps clear the way for reproductive rights advocates to begin collecting the more than 150,000 signatures required for the amendment to appear on the ballot in fall 2024, which must be submitted by early May.
Okay, last week I promised you an iota of good news, and gosh darn it, I’m going to deliver.
With legislative sessions in most states mostly over, it’s a great time to take look back at what the statehouses with Democratic majorities accomplished while their Republican colleagues elsewhere were busy bullying transgender kids and banning drag shows.
After Roe was overturned, some red states have used health data collected and sold by tech companies to aid prosecutions of those seeking abortion care. So Democrats in some blue states moved this year to strengthen health data privacy protections to protect against this kind of intimate invasion.
Washington’s “My Health, My Data Act” puts limits on search engines’ and health trackers’ ability to collect and sell customers’ data.
Nevada and Connecticut also passed legislation modeled after the Washington law.
And, in response to Roe being overturned, Democratic lawmakers moved to protect and expand reproductive freedom where they could:
See? I can do good news, too!
But that does seem like a good place to leave this…
Thank you, as ever, for hanging in – through the good, the bad, the ugly, the WTFness, all of it.
No rule said you had to finish this newsletter. Or even read it at all.
Take care of yourself.
We need you.
Thanks for reading This Week in Statehouse Action! Subscribe for free to receive new posts and support my work.