Several states where the issue of restoring access to abortions could be on the ballot are facing opposition from anti-abortion groups. In Arkansas, the state Right to Life group is leading a campaign called “decline to sign” to discourage signing petitions. (Antoinette Grajeda/Arkansas Advocate)
Abortion rights supporters in Florida experienced a rollercoaster of emotions, with moments of triumph and disappointment.
The Florida Supreme Court has recently given its approval for the state to impose a ban on almost all abortions after six weeks of pregnancy, effective from April 1. However, it has also granted permission for a ballot measure that will enable Florida voters to have the opportunity to overturn the ban in November.
Natasha Sutherland, the communications director for Floridians Protecting Freedom, a coalition of state and national organizations, expressed mixed emotions, saying, “I felt both elated and devastated.” The coalition had collected almost 1 million signatures for a proposed constitutional amendment that aimed to protect the right to abortion.
Sutherland, a resident of Tallahassee, highlights that a considerable number of women are unaware of their pregnancy until they exceed the six-week timeframe for abortion care. With the current abortion ban in place, the stakes are high. Hence, it was crucial for them to give their best to tackle this issue.
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In November, citizens of up to nine states may have the opportunity to vote for the expansion of abortion access through ballot initiatives. Constitutional amendments in Colorado, Florida, and South Dakota have already been approved for the ballot. Meanwhile, initiatives in Arizona, Arkansas, Missouri, Montana, Nebraska, and Nevada are still in the process of collecting signatures or waiting for state approval. This allows voters to bypass their legislators and directly make decisions regarding abortion access.
Maryland and New York have abortion rights ballot measures that were referred by their state legislatures. However, New York’s measure is currently facing litigation.
The constitutional right to an abortion was dismantled by the U.S. Supreme Court in June 2022, which has now passed the issue on to the states. according to Guttmacher Institute, a pro-abortion rights research organization, 14 states have prohibited abortions with hardly any exceptions, while seven states have banned them at or before 18 weeks of pregnancy.
Despite being a controversial issue, abortion still maintains its popularity, even in conservative states. In fact, six states have passed ballot measures to provide access to abortion since the 2022 decision by the high court, including states like Kansas and Kentucky that are considered to be conservative.
According to Daniel Smith, a political science professor and department chair at the University of Florida, the initiative process is designed to exert pressure on state lawmakers when there is public support for an issue that the average voter wants, but the average lawmaker does not. Smith, who has written extensively on ballot initiatives, explains that this process aims to bridge the gap between what legislators want and what the public wants.
Republican lawmakers in multiple states have recently increased signature requirements and raised the percentage of votes needed for ballot initiatives to pass, in an effort to prevent out-of-state groups from influencing the initiative process by providing funding. The proponents of these stricter rules claim that they want to prevent urban areas from having too much power. However, GOP supporters have also admitted that their ultimate aim is to obstruct abortion rights measures that enjoy broad popularity.
According to Mat Staver, a lawyer from Orlando, Florida, constitutional amendments should be made more difficult to pass. He believes that out-of-state organizations are pouring money into initiatives, like those that expand reproductive rights, which is why the process needs to be more stringent. Staver is the co-founder of Liberty Counsel, a nonprofit based in Florida that is against ballot measures related to abortion in various states including Florida.
According to him, in Florida, despite the 60% threshold, individuals with sufficient financial resources can get anything on the ballot. This is not beneficial for Floridians as it restricts the scope for discussions and debates.
Some experts believe that lawmakers’ efforts to enforce fresh limitations undermine one of the most straightforward ways for people to engage in direct democracy.
Alice Clapman, a senior counsel at the Brennan Center for Justice at New York University School of Law, which is a progressive law and policy nonprofit, believes that compromise is essential for democracy. She expresses her concern about the resistance to democratic processes and the belief of some individuals in power that certain issues should not be up for debate.
‘Monopoly power’
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According to Smith, politicians from different parties have been attempting to increase the difficulty for citizens to put forward different initiatives on the ballot for many years. The extent of this difficulty largely depends on which party is in control of the state’s levers of power.
According to him, the monopoly power of lawmakers would be eliminated by the ballot initiative. He also pointed out that focusing solely on the restrictions imposed by Republicans on the initiative process would be short-sighted, as similar actions are taken by both sides.
According to research conducted by Smith, voter support for a ballot measure may not necessarily translate into support for a political candidate who advocates for it, especially in today’s politically polarized climate. Interestingly, many individuals may vote in favor of a ballot measure while simultaneously voting for a candidate who represents the political party that opposes it.
Smith confidently stated that the voters have no issues with the situation. He emphasized that there is no cognitive dissonance in the voter’s mind regarding the ballot measure, as it is a one-time event.
According to Smith, ballot measures usually don’t have much impact on voter turnout during presidential elections like they do during midterms and special elections. However, the upcoming 2024 election could be an exception, given the lackluster public excitement for the anticipated rematch between President Joe Biden and former President Donald Trump. In this case, a ballot measure could potentially motivate more individuals to cast their votes.
‘Not unlike gerrymandering’
In the previous month, the Missourians for Constitutional Freedom campaign successfully submitted over double the required number of signatures for its measure to qualify for Missouri’s November ballot. The proposed constitutional amendment, similar to Florida’s, aims to legalize abortion up to the point of fetal viability. This is generally considered to be around 24 or 25 weeks into a pregnancy, which is when a fetus can continue to survive outside of the uterus.
According to Mallory Schwarz, the executive director at Abortion Action Missouri, who was involved in the campaign, the signature-gathering aspect of it was an incredible experience. She expressed that she had never witnessed such a high level of enthusiasm regarding the issue as she did this year.
According to Schwarz, over a thousand volunteers were trained by the coalition organizations, who then canvassed in their respective communities, held house parties, and tirelessly knocked on tens of thousands of doors in less than three months. Eventually, they managed to gather an impressive 380,000 signatures. However, the state still needs to certify the petition for it to be included on the ballot.
According to Schwarz, the ballot initiative process has been deeply ingrained in the hearts of Missouri voters for over a century, regardless of their political affiliations. He also noted that even issues that may seem partisan in nature have managed to garner support from individuals across the board, consistently year after year.
Over the past few years, Missouri has witnessed a series of ballot measures that have brought significant changes to the state. Despite being controlled by Republicans, the measures have successfully raised the minimum wage, expanded Medicaid, overturned a law that allowed employers to fire workers for not paying union fees, and decriminalized the use of cannabis.
Missouri Republicans have proposed various measures this year to counter abortion rights initiatives. One of these proposals involves ballot measures requiring not only a majority of votes statewide but also a majority of votes in Missouri’s congressional districts.
The Senate passed the bill after a heated debate, but unfortunately, the House was unable to reconcile the different versions of the bill before the session ended.
According to Schwarz, the act of changing the rules of the game in order to prevent the will of the people is similar to gerrymandering.
Last year, Florida legislators introduced a bill that was akin to this one. They suggested a constitutional amendment to raise the required percentage of votes for a ballot measure to pass from 60% to a two-thirds supermajority. Although the bill was approved by the House, it failed to pass the Senate.
According to OpenSecrets, a nonprofit organization that monitors campaign financing and lobbying, more than $205 million was donated to ballot initiatives in eight states in 2023. Floridians Protecting Freedom, led by Sutherland, raised nearly $12 million in April and May alone, with around 70% of the contributions coming from within Florida.
An array of tactics
In Ohio, abortion rights advocates were successful in gathering almost half a million signatures to introduce a reproductive rights amendment on the November 2023 ballot. However, their efforts were met with resistance from the Republican secretary of state and the Ohio Ballot Board, who altered the summary of the amendment in a manner that opponents argued was both incomplete and inaccurate. Despite this, Ohio voters ultimately approved the ballot measure, effectively securing access to abortion and enshrining it in the state constitution in November of last year.
Republican Secretary of State Jay Ashcroft in Missouri tried to alter the phrasing of a proposed ballot measure concerning abortion rights. The attempt was to frame the question as whether voters supported “dangerous and unregulated abortions until live birth.” However, the court in Missouri invalidated this language.
Arizona’s GOP lawmakers have proposed a constitutional amendment that will require organizers to gather a specific percentage of signatures from all of the state’s 30 legislative districts instead of the entire state in November 2024. Additionally, they have also contemplated introducing their own ballot measures related to abortion to counter the existing abortion rights measure.
Legal challenges that could extend beyond the election are expected to arise if ballot amendments on reproductive rights are approved.
The Liberty Counsel, represented by Staver, has expressed its intention to explore legal avenues to prevent the implementation of Florida’s amendment.
Staver, a legal expert, expressed his concern regarding the broadness of the amendment and stated that there may be a need for litigation to argue that preexisting constitutional rights supersede it.
According to Clapman from the Brennan Center, lawmakers are likely to persist in their resistance to ballot measures, even if those initiatives are successful. This suggests that the fight for ballot measure reform is far from over.