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This should have been a column celebrating democracy.
The people of Ohio showed up at the polls for a statewide ballot measure, Issue 1, amending the constitution to enshrine the right to abortion in their state. They overcame obstacle after obstacle thrown in their way by the Ohio Legislature, a democratic institution that is, as you’ll see, only vaguely democratic.
First, the good news. Ohio voters approved the amendment by 56.6 percent to 43.4 percent. This in spite of last-minute purging of the voter rolls by the Ohio secretary of state, Frank LaRose (R), such that 27,000 voters were rendered unable to cast ballots, after early voting had already begun.
Issue 1 passed by a 13 point margin… in a state where all three branches of government are Republican-controlled and were dead set against it. It won a greater share of the vote than went for Donald Trump in 2016 (51.3 percent) and in 2020 (53.3 percent).
This quintessential exercise of direct democracy wasn’t just an upset; it was a blowout.
And it came after overcoming the Ohio state government’s shady trick of staging an off-year, mid-summer “special” election — a ballot measure (also called Issue 1) specifically designed to make it more difficult to pass future ballot measures, beginning with November’s Issue 1. The idea was to protect their abortion ban from the pesky trappings of democracy by sneaking their state-sponsored ballot measure by the voters in what they assumed would be a very-low-turnout election in the dog days of August.
The nerve of Ohio voters! They turned out in droves to send a message to Ohio lawmakers and in doing so became the first red state to pass a constitutional amendment protecting the right to abortion. And now Ohio’s GOP legislators have heard that loud and clear message and declared their intention to completely disregard it.
That didn’t work out and Ohio voters went on this month to make explicit their rejection of Ohio’s abortion ban.
‘The People, United, Shall… Never Mind’
While various Ohio Republicans instantly busied themselves looking for loopholes and workarounds — inspired perhaps by the Florida GOP’s clever neutering of that state’s 2018 ballot measure, passed 2-to-1, re-enfranchising ex-felons — an appalled Rick Santorum went so far as to say the quiet part out loud and disavow direct democracy entirely.
The nerve of Ohio voters! They turned out in droves to send a message to Ohio lawmakers and in doing so became the first red state to pass a constitutional amendment protecting the right to abortion. And now Ohio’s GOP legislators have heard that loud and clear message and declared their intention to completely disregard it.
GOP state Rep. Bill Dean issued a statement saying:
Issue 1 doesn’t repeal a single Ohio law, in fact, it doesn’t even mention one… The amendment’s language is dangerously vague and unconstrained, and can be weaponized to attack parental rights or defend rapists, pedophiles, and human traffickers.
The language of Issue 1 is expansive, preventing any penalizing or burdening of the termination of the pregnancy before the point of viability and guaranteeing an abortion at any stage of the pregnancy if it protects the life of the mother. Of course that only seems a strong position in the face of the many laws and decisions that have chipped away at the holding of Roe v. Wade, culminating in its overturning last year in Dobbs and a spate of GOP-authored abortion bans in Dobbs’s wake.
And it needs to be said that the amendment was conceived in direct response to a “heartbeat” abortion ban passed in 2019, which bans abortions after approximately six weeks with no exceptions for rape or incest.
It is by no means clear how the amendment can be “weaponized” to “defend rapists, pedophiles, and human traffickers” (as opposed to protecting women and girls who have been the victims of such), but worth noting that invocation of the threat of these particular goblins is standard fare from the MAGA/GOP fear-mongering playbook.
As for Dean, he won his last election with over 70 percent of the vote, in case you were wondering if he might be ensconced in a heavily gerrymandered “safe” district.
Another state representative, Jennifer Gross, said, without presenting evidence, that “foreign money funded the ballot measure,” which constituted “foreign election interference and wouldn’t stand.” A cursory internet search reveals that Gross is a nurse practitioner who sponsored an anti-vaccine bill in 2021 and hosted a political event that violated COVID-19 protocols in 2020.
A group of four GOP legislators announced to the press their intentions to remove jurisdiction over the new amendment from the courts and reserve this to the state Legislature — apparently trusting neither the lower courts nor the thin 4 to 3 majority they hold on the State Supreme Court.
A Legislative Majority Locked In and Impervious
But surely this is just political posturing by four members of the state Legislature? It’s not like the Ohio state Legislature has a history of ignoring the law and the courts…
To find out, let’s jump in the wayback machine and travel all the way back to June of 2022. What do we find? From Cleveland.com:
Ohio Republicans have ignored an Ohio Supreme Court order to approve a new state legislative district map, with a court-ordered Friday morning deadline passing without any official action from the GOP-controlled redistricting commission.
Cleveland.com described this as showing the limitations of judicial power to enforce political rules when politicians choose to ignore them. But that was a different situation, not a response to a ballot measure passed by a majority of the state voters, right?
Not exactly. The state Legislature was ignoring the state Supreme Court’s attempt to enforce a ballot measure against gerrymandering, about which Cleveland.com said the following:
Voters in 2015 overwhelmingly approved the state redistricting process as a change to the state constitution, in an attempt to fix partisan gerrymandering.
So that ballot initiative, like the current one, was an exceedingly clear directive from the voters. Which the Legislature completely ignored.
And then went on to ignore orders from the state Supreme Court, submitting maps that were rejected seven different times. They gambled on the eventual replacement of one of the justices who was a swing voter on the court. And, as luck would have it, the court is now considered more reliably under Republican control.
The state Legislature appealed these orders from Ohio’s top court up to the US Supreme Court, hoping that that GOP-captured court would endorse their aspirations of minority rule. They placed their chips on the radical “independent state legislature” theory (ISL), which posits that only state legislatures, and not the courts, can weigh in on the conduct of federal elections.
ISL was rejected in Moore v. Harper (with a door left open for future revisitation), but not in time to make a difference for the 2022 elections. This meant the cynically gerrymandered map that heavily favored Republican candidates — a map that was rejected seven times by state courts — was in play in 2022 and helped the GOP capture the US House.
An Impassioned Plea Falls on Deaf Ears
The Ohio House minority leader at that time, Democrat Allison Russo, described the Republicans’ behavior thus:
A handful of Republicans in power ignore the voices and votes of Ohioans to hold onto power at all costs — even if it means breaking their sacred oath to uphold the Constitution and perform their duties as elected officials.
We can have a government that works for the people — not against the people — if politicians in power are willing to come together and put aside their selfish political interests and corrupt pursuit of absolute power.
To the Ohio Republicans, this impassioned plea for a functional democracy and public-spirited politics registered as just more political yadda yadda. They ignored her words, just as they ignored the will of the people in 2015 and have made clear their intent to ignore the will of the people in 2023.
Protected in their heavily gerrymandered districts in states like Ohio, Wisconsin, Florida, Texas, and soon enough North Carolina, the vast majority of Republican lawmakers are harder to remove than ticks on a dog. Though the game of gerrymandering is a venerable one, today’s gerrymandered districts are precision drawn, with the aid of state-of-the-art algorithms, in whatever wonky sizes and shapes are needed to move opposing voters around and dilute their votes as much as possible.
It is not coincidental that, in Ohio, the long-running battle to repeatedly evade the orders of the court was waged to preserve that very gerrymandering, defying state law and ignoring their state Supreme Court until they could get a new one. This power-perpetuating vicious cycle — replicated across America in many states, including some Democratic ones — spells ruin for democracy.
Doug Ecks is a lawyer and writer. He holds a JD from the University of California, Hastings and a BA in philosophy from California State University, Long Beach, Phi Beta Kappa. He also writes and performs comedy as Doug X.
