Indiana Capital Chronicle: Despite GOP headwinds, citizen-led abortion measures could be on the ballot in 9 states

For abortion rights supporters in Florida, it was a tumultuous day of highs and lows.

On April 1, the Florida Supreme Court paved the way for the state to ban nearly all abortions after six weeks of pregnancy. But it also OK’d a ballot measure that would allow Florida voters to overturn the ban this November.

“I was elated and devastated,” said Natasha Sutherland, the communications director for Floridians Protecting Freedom, a coalition of state and national organizations that gathered nearly 1 million signatures for a proposed constitutional amendment enshrining the right to abortion.

“Many women don’t even know they’re pregnant by the time they’re outside of the six-week window for abortion care,” said Sutherland, who lives in Tallahassee. “Considering the stakes are so high with the abortion ban we’re now under, it was really important for us to ensure we gave it all we’ve got.”

This November, voters in as many as nine states could sidestep their legislators and directly decide whether to expand access to abortion through citizen-led ballot initiatives. Constitutional amendments in Colorado, Florida and South Dakota already have qualified for the ballot, while coalitions in Arizona, Arkansas, Missouri, Montana, Nebraska and Nevada are still collecting signatures or awaiting state approval on their measures.

Indiana won’t be one of them as the Republican supermajorities have shown no interest in giving Hoosiers the right to vote on the issues on a statewide ballot.

Two more states, Maryland and New York, have abortion rights ballot measures that were referred by their state legislatures, though New York’s is currently tied up in litigation.

In June 2022, the U.S. Supreme Court dismantled the constitutional right to an abortion, kicking the issue back to the states. Fourteen states have outlawed abortion with almost no exceptions, while another seven states ban abortions at or before 18 weeks of pregnancy, according to the Guttmacher Institute, a pro-abortion rights research organization.

Yet access to abortion remains popular, even in conservative states. Since the high court’s 2022 decision, voters in six states have approved abortion access via ballot measure, including in red states such as Kansas and Kentucky.

“The whole idea of the initiative process is to put pressure on state lawmakers when there appears to be support for an issue that the median voter in the electorate might want but the median lawmaker doesn’t want,” said Daniel Smith, a professor and chair of the political science department at the University of Florida, who has authored books and papers on ballot initiatives.

In several states, Republican lawmakers opposed to abortion rights have tightened signature requirements or raised the percentage of the vote required for ballot initiatives to pass. Proponents of stricter rules say they want to prevent out-of-state interests from manipulating the process by funneling money to initiative campaigns. They say they also want to ensure that populous urban centers don’t have too much power. But in several cases, GOP backers have acknowledged that their goal is to thwart abortion rights measures that are broadly popular.

Mat Staver, an attorney based in Orlando, Florida, said it should be harder to get constitutional amendments passed because organizations from outside the state are funneling money into ballot initiatives such as the ones expanding reproductive rights. Staver is the co-founder of Liberty Counsel, a Florida-based nonprofit that opposes abortion-related ballot measures in Florida and other states.

“Even though we have a 60% threshold [in Florida], if you have the financial resources, you can get pretty much anything on the ballot you want,” he said. “That’s not good for Floridians because that doesn’t allow for debate.”

Critics argue that legislators’ attempts to impose new restrictions subvert one of the purest forms of direct democracy available to citizens.

“Democracy requires compromise,” said Alice Clapman, senior counsel at the Brennan Center for Justice at New York University School of Law, a progressive law and policy nonprofit. “I am concerned that there seems to be a resistance to leaving these issues to the democratic process. Some people in power in these states feel certain issues shouldn’t be up for democratic debate.”

‘Monopoly power’

For decades, legislators on both sides of the political aisle have tried to make it harder for citizens to get various proposals on the ballot, said Smith. It just depends on who’s controlling the state’s levers of power.

“The ballot initiative takes away the monopoly power of lawmakers,” he said. “We can look at restrictions by Republicans right now on the initiative process, but doing so is myopic. It happens on both sides.”

In today’s polarized political climate, voter support for a ballot measure doesn’t necessarily translate into support for a political candidate who backs it. Smith’s research has found that many people may vote for a ballot measure while also voting for candidates from the political party that opposes it.

“And they’re fine with that,” Smith said. “There’s no cognitive dissonance in the voter’s mind. [The ballot measure] is a one-off.”

Ballot measures typically don’t boost voter turnout in presidential election years like they do in midterms and special elections. But 2024 could be different, Smith said, thanks to tepid public enthusiasm for the repeat matchup between President Joe Biden and former President Donald Trump. A ballot measure might prod more people to head to the polls.

‘Not unlike gerrymandering’

Last month, the Missourians for Constitutional Freedom campaign turned in more than twice the likely number of signatures needed for its measure to qualify for Missouri’s ballot in November. The proposed constitutional amendment, like Florida’s, would legalize abortion up to fetal viability — the point at which a fetus can survive outside the uterus, often considered around 24 or 25 weeks of pregnancy.

“The signature-gathering piece of this campaign was the most incredible thing I’ve ever been a part of,” said Mallory Schwarz, executive director at Abortion Action Missouri, one of the organizations participating in the campaign. “I have never seen the level of enthusiasm about the issue that I saw this year.”

Coalition organizations trained more than a thousand volunteers who canvassed in their communities, held house parties, and knocked on tens of thousands of doors in less than three months, Schwarz said, eventually gathering more than 380,000 signatures. The state must now certify the petition for it to appear on the ballot.

Missouri voters of all political stripes have a deep attachment to the ballot initiative process that dates back more than a century, Schwarz said: “We’ve seen issues that may be presented as partisan really appeal to people across the board, year in and year out.”

In recent years, ballot measures in Republican-controlled Missouri have raised the state minimum wage, expanded Medicaid, overturned a so-called right-to-work law and decriminalized cannabis use.

This year, Missouri Republicans put forth several proposals designed to defeat abortion rights initiatives, including one that would require ballot measures to win not just a majority of votes statewide, but also a majority of votes in Missouri’s congressional districts.

After heated debate, the bill passed the Senate, but the House couldn’t reconcile different versions of the bill before the session ended.

“It’s not unlike gerrymandering,” Schwarz said. “The only way they can stop the will of the people is to change the rules of the game.”

Florida lawmakers filed a similar bill last year. They proposed a constitutional amendment to increase the percentage of votes a ballot measure needs to pass, from 60% to a two-thirds supermajority. The bill passed the House but died in the Senate.

In 2023, ballot initiatives in eight states attracted more than $205 million in donations, according to OpenSecrets, a nonprofit that tracks campaign financing and lobbying. Sutherland, with Floridians Protecting Freedom, pointed out that the campaign raised nearly $12 million in April and May, but about 70% of contributions coming from within Florida.

An array of tactics

After abortion rights advocates gathered nearly 500,000 signatures in Ohio to get a reproductive rights amendment on the November 2023 ballot, the Republican secretary of state and the Ohio Ballot Board changed the wording of the amendment’s summary in a way that opponents said was incomplete and inaccurate. Ohio voters approved the ballot measure anyway, enshrining abortion access in the state constitution last November.

A similar scenario unfolded In Missouri, where Republican Secretary of State Jay Ashcroft attempted to change the wording of a proposed abortion rights ballot measure so that it would ask voters whether they were in favor of “dangerous and unregulated abortions until live birth.” A Missouri court later struck down the language.

In Arizona, GOP lawmakers have put their own constitutional amendment on the November 2024 ballot that would require organizers to gather a certain percentage of signatures from every one of Arizona’s 30 legislative districts rather than in the state as a whole. They’ve also considered a strategy to introduce their own abortion-related ballot measures to compete with the abortion rights measure.

If reproductive rights ballot amendments pass, they’ll likely face legal challenges that stretch far beyond the election.

Staver, of the Liberty Counsel, said his organization would investigate legal channels for blocking implementation of Florida’s amendment.

“There may be litigation that would be necessary to argue that preexisting constitutional rights override this amendment,” said Staver, who believes the amendment is overly broad.

Clapman, with the Brennan Center, said she also expects lawmakers to continue pushing back against ballot measures: “It’s not a fight that’s going to go away even if initiatives pass.”