Constitutionalism in Ohio

It’s summer in America, traditionally a slow time in political activity. So it was pretty good going for the state of Ohio to get a turnout of around 35% in a referendum on Tuesday (yesterday, Australian time). By a very clear margin, 57% to 43%, voters rejected a proposal to amend the state’s constitution to require any future amendments to pass a threshold of 60% rather than just a simple majority.

There’s a good argument for making constitutional amendment difficult. In Peter Brent’s words, “A country’s constitution is its legal DNA, and it shouldn’t be altered lightly.” But given voters’ tendency to vote “no” when they’re unsure, getting even a simple majority in a referendum is hard work, so the risk of hasty amendments being passed is probably not as great as you might think.

And as you might already have guessed, the Ohio vote wasn’t prompted by any detached concern for due constitutional process. In reality, the debate was about abortion. Supporters of reproductive choice will have an amendment on the ballot in November to protect abortion rights in Ohio; the anti-choice forces were attempting a pre-emptive strike to make success for that measure more difficult. But the voters said no.

Ohio has long been a classical marginal state, although it has trended more Republican in recent years. Barack Obama carried it twice, but by narrow margins; Trump then won it with a 4.3% margin (two-party) in 2016 and dropped only 0.2% in 2020. The two parties have one senator each, although Republicans hold the governorship and majorities in both houses of the state legislature. It will be on the Democrats’ target list for next year, but it’s not a must-win state.

As we discovered a year ago in Kansas, however, the return of abortion to the headlines has overturned a lot of political conventional wisdom. While pro-choice Republicans have mostly been purged from the party’s legislative ranks, they still account for a significant number of voters, and they are making their voices heard.

Getting 60% support for the pro-choice position would still have been a big ask (although not impossible – it got 59% in Kansas, helped by the inertia of being the “no” side). But a simple majority should be pretty straightforward. Nathaniel Rakich at FiveThirtyEight reports that early polls show average support of 57%, with 24% opposed and 20% undecided; that will probably narrow, but it’s a healthy margin to work with.

It’s not certain that Democrats will reap a more general political advantage. If voters feel that they’ve disposed of the abortion issue by referendum, they may go back to voting Republican on other grounds. But despite the unpopularity of their position among the general population, the hard-line anti-choice forces exert huge pressure on Republican candidates and legislators, pushing them to adopt more extreme stances and to say things that discredit them in the voters’ eyes.

And the collateral damage extends more widely. Faced with Republican attempts (like that in Ohio) to rig the rules to protect unpopular policies, many Democrats swing to the opposite extreme, advocating for unlimited majority rule. Hence Tori Otten in the New Republic, for example, argues that the 60% requirement would entrench “minority rule” because it would mean “allowing the minority of state residents to have the final say.”

This is nonsense. The constitution doesn’t prevent the state from legislating to protect abortion rights; it can do that anyway. Making a constitution difficult to amend is a normal incident of constitutionalism, not a conspiracy against democracy. The fifty years of protection that abortion rights enjoyed nationwide only happened because the Supreme Court was willing to tell majorities in state legislatures that their democratic mandate did not override the protections of the federal constitution.

Otten says that Ohio is a case of “using abortion rights as a proxy for wars on democracy,” but it seems to me it’s the other way around. It’s true that the Republicans these days don’t have much time for democracy, but the battle they’re fighting – often unwillingly at the behest of their fundamentalist constituency – is over abortion. And on that issue the Democrats seem to have public opinion firmly on side.