August 7, 2023

Ohio voters go to the polls Tuesday, August 8 to vote in a referendum to change requirements for amending the state constitution through initiative-and-referendum (I&R).  Currently, a simple majority (50% + 1) suffices to pass an I&R constitutional amendment; Issue 1 would raise that requirement to 60%.  (It would also raise the number of counties from which signatures for I&R petitions come from the current 44-50% of Ohio — to 88, i.e., all counties).

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The immediate impetus for the effort is an effort to staunch a virulently pro-abortion “Right to Reproductive Freedom” amendment to the Ohio constitution, already certified for inclusion on the November 7 ballot.  That amendment, if adopted, would legalize abortion through birth (Potemkin village language about “viability” notwithstanding) and force Ohioans to pay for it while stripping parents of rights to parental consent or even notification. 

Ohio pro-life forces hope to change the thresholds for amendment approval to defeat the “Reproductive Freedom” amendment.  They’re rightly concerned that, in an off-election year like 2023, out-of-state interests can pour money into an abortion referendum in Ohio (and legislative elections in Virginia, the only other major pro-life contest this year) to lock abortion into the Buckeye State’s basic law.

Abortion proponents complain that the effort is “anti-democratic” and “takes away people’s rights to decide.”  Is there merit to their claim?

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No.

Superficially, raising the requirements for a constitutional amendment might seem “anti-democratic.”  It’s not.  Here’s why.

Constitutions are the basic law of any jurisdiction, country, or state. They set the basic rules, including the basic values, for that jurisdiction.  Because, as Supreme Court Justice Oliver Wendell Holmes once wrote (in the 1905 case, Lochner v. New York), constitutions are “made for people of fundamentally differing views,” they should not be used to lock down policy wins for transient majorities.  That is why most constitutions’ amending processes are rigorous: they are designed to ensure that changes to the fundamental law reflect a deep and abiding consensus that is tested by time and breadth of agreement. 

That’s why, in most states, changing the constitution requires passage of amendments twice, usually by different legislatures to ensure an election took place between them.  It’s also why that product then usually still has to go before the voters to approve. 

Even Ohio’s constitution somewhat reflects this.  If the State Legislature wants to change the constitution, it has to do three things:

  1. adopt the amendment by 3/5ths of both houses (the same margin Issue 1 would impose on I&R-originated amendments);
  2. complete that process no fewer than 90 days before an election; and
  3. then submit the amendment to be approved by Ohio voters.

The fact that popularly-initiated constitutional amendments in Ohio can be approved by a one-time bare majority, without the review processes normal legislative action provides, makes the I&R process an outlier… and dangerous.  Note that the bare majority does not even have to be a majority of Ohio’s registered voters, only a bare majority of those who bothered to show up.  That means special interest “get out the vote” campaigns — perhaps funded by out-of-state money — can use the process to prevail.