Will We See Something Like Ohio’s Abortion Ballot Measure Succeed in Other States?
The success of Ohio Issue 1 in November 2023, which provided for abortion access in the Ohio state constitution, has given a large confidence boost to abortion activists that such success can be replicated in other states. While Democrats tend to be more pro-choice, they achieved a somewhat surprising victory with Ohio Issue 1 despite a Republican-leaning electorate. They even weathered three unsuccessful lawsuits brought by pro-life groups in front of a Republican-majority Ohio Supreme Court.
It’s reasonable to ask if this momentum can continue for the pro-choice side in other states, and some journalists, pundits, and government officials already have. But should we expect similar results in other states, particularly red states?
For this exercise, we’re going to look at other states that provide for citizen-initiated state constitutional measures, as that was what Ohio Issue 1 was, for the most comparability. As always with my writing, this is not about whether a policy is right or wrong, or what circumstances it should or shouldn’t be allowed in. That is for you to decide.
For simplicity’s sake, we’re going to act as if none of these states have already done something similar to Ohio Issue 1, whether that be through a ballot measure or through state legislation. (Actual attempts — successful, unsuccessful, and TBD — will be discussed at the end). And with the 2024 elections coming up next, this article will assume that a ballot measure similar to Ohio Issue 1 is targeted for the 2024 ballot in each of the states shown below (and in some cases, there are).
How the States Compare on the Process for Citizen-Initiated Measures
Below is a table with the most pertinent and gatherable information for states that allow for citizen-initiated state constitutional amendments. Most states allow other kinds of ballot measures for voters to vote on, but for most comparable processes this is focusing on states that have a similar process to that in Ohio. Other aspects of a ballot measure campaign, such as campaign funding, will also be a topic of discussion, but such data is not as concrete at this time.
Here are descriptions of those columns that may not be so straightforward (the sources can be found above):
- Type of Initiative: There are two types of citizen-initiated constitutional amendments: Direct and indirect. Direct initiatives go straight to the ballot for voters to vote on once they attain the requisite number of signatures to get on the ballot (more on that later). Indirect initiatives go to the state legislature first, which can take various actions depending on the state, and then it goes to the ballot.
- State Supreme Court Party: This indicates the partisan leaning of the state supreme courts (SSCs). Most of the time, they are nominally nonpartisan (labeled “NP”) and face nonpartisan retention elections, but if they were initially appointed by a governor (appointments are labeled “apps”), then I labeled the justice by the party of that governor that chose them. For example, California’s SSC is nonpartisan but six justices were appointed by a Democratic governor and one was appointed by a Republican governor (the Governator, Arnold Schwarzenegger). Hence, California is considered “NP (6–1 D apps).”
- Signature Number Requirement: Before citizen-initiated amendments can make it to the ballot, they must reach a minimum number of signatures from voters in that state. These are gained through a specific type of petition paperwork that basically indicates “I support getting this amendment on the ballot.” It does not necessarily mean that said voter will support that amendment in a vote. The number of signatures required is prescribed by state law and based on a percentage of votes for a particular office in the previous election (except for Nebraska and North Dakota, which use a different criteria). The source for these requirements comes from here.
- Single-Subject Requirement: Many states require citizen amendments to focus on one policy area, topic, or issue. States with this stipulation are labeled “Yes” in this column.
- Vote Threshold: This is the bar for the minimum percentage of votes needed for a measure to pass once it is on the ballot.
- Would Issue 1 Pass Here?: This column answers if the percentage of the vote in Ohio is high enough for Issue 1 to have passed in another state. In most cases, it was. But there are some that are unknown because of extra criteria the measure would have needed to meet that are not easily looked into, if it can be ascertained at all.
The Likelihood of States Passing a Measure Like Ohio Issue 1
To predict the likelihood of a state’s electorate passing a measure like Ohio Issue 1, we must also evaluate the likelihood of the measure even making it to the ballot in the first place. To reiterate, this is acting as if these states haven’t already implemented, or taken steps to implement, a similar abortion policy.
Let’s break the table from above up into manageable pieces to more easily make sense of the data.
The Party in the Government
The party in power in government can serve as a sort of proxy for the partisan leanings of the electorate when actual party affiliations of voters are unavailable or not tracked by the state — only 31 states register voters by party. Such an approach is flawed, of course: Arizona’s legislature, for example, is Republican but with a slim majority in both chambers and the governor is a Democrat. Since Democrats are typically more supportive of pro-choice policies, we can assume a measure like Ohio Issue 1 in states with more Democrats in office is more likely to pass than in states with more Republicans.
Just going based on the party in government, the most likely states to pass this measure would be California, Colorado, Illinois, Michigan, and Oregon. Their governor and both chambers of their state legislatures are Democratic, most of them heavily so. (Michigan’s House and Senate are a bit more even.)
But Massachusetts is a little bit trickier. While its executive and legislative branches are definitively Democratic as well, all seven of its state supreme court justices were appointed by the previous governor, Republican Charlie Baker, though Baker is considered to be more moderate. So, if a measure similar to Ohio Issue 1 was challenged in court like it was in Ohio, and a lawsuit made it to the Massachusetts’ SSC, it could pose a tough obstacle to the measure even making the ballot in the first place.
On the other hand, Ohio’s SSC are partisan elected judges and four of the seven are Republican, and the court ruled that Ohio Issue 1 was fine as is. Granted, Arizona, Florida, Massachusetts, North Dakota, and South Dakota might be more Republican (in the sense that more of those SSC justices were appointed by Republican governors) than Ohio, but the rulings in Ohio at least show that another state’s Republican court isn’t guaranteed to prevent a measure like Ohio Issue 1 from making the ballot.
Lastly, we have two states who have indirect methods for citizen-initiated measures, which, as stated earlier, means that a measure with enough signatures goes to the state legislature first before the measure actually goes to the ballot.
Those two states are Massachusetts and Mississippi, and they have very different balances of partisan power in their legislature and governorship. Massachusetts, a definitively Democratic state, probably wouldn’t amend an abortion initiative much. But the definitively Republican Mississippi state government will probably try to either stop the amendment from reaching the ballot or at least limit the situations in which abortion is legal.
Getting on the Ballot
But what about even getting the measure on the ballot in the first place? As stated earlier, you need a certain number of voters to sign petitions to make that happen.
At the surface level, it will appear that most states will have an easier time getting the necessary number of signatures from eligible voters than in Ohio — only California, Florida, and Michigan need more signatures. But we must remember that the population sizes vastly differ between states. Just because a state may require fewer signatures from voters won’t inherently mean that it will be easier there.
Take Oklahoma, for example. A measure there needs about 240,000 fewer signatures (41.84%) than in Ohio. But Oklahoma needs signatures equal to 15% of its last governor’s election’s total votes cast while Ohio only needed 10% for its own governor’s election. It’s fewer votes in Oklahoma, but it’s a higher threshold than the more populous Ohio.
Also, not every state bases the minimum number of signatures needed on the governor’s race, and each basis will differ in difficulty compared to each other (e.g., population of the last census vs. population of registered voters). If the percentage were the same threshold (say 10%) and we assume states’ populations are the same, the order of difficulty in signature gathering from greatest to lowest difficulty is the following:
- 10% of the last census
- 10% of registered voters
- 10% of presidential election votes cast
- 10% of governor election votes cast
- 10% of secretary of state election votes cast
Why is this the case? Imagine these groups as concentric circles. The larger the circle, the larger the population and thus the larger the number of voters needed.
The census is counting the entire population — registered voters, eligible voters that aren’t registered, and those not old enough to vote or otherwise ineligible to vote. Getting a percentage of that is going to be the hardest, assuming the percentage for each level is the same, so the census takes up the largest area. Then the total number of registered voters has to be lower than the total census population because that is just one segment.
But not every registered voter votes — in fact, many don’t. Presidential elections are always going to have the highest turnout, so they will have the greatest number of voters. Governor elections will have fewer votes cast than for president, even if they occur at the same time as for president. Then secretary of state elections will have fewer votes cast than for governor. Thus, the order of concentric circles above is what it is.
But politics is messy and more complicated than that. Not every state uses the same basis for its minimum signature requirement nor do they use the same percentages. Their total populations differ greatly, which in turn greatly affects the number of registered voters and the voters who cast a ballot. So, it isn’t always clear-cut which state has a more difficult climb for citizen-initiated measures.
For example, is 10% of the votes in the last gubernatorial election in Nevada harder to reach than 4% of the last census in North Dakota? By the sheer numbers — 102,362 signatures in Nevada versus 31,164 in North Dakota, the answer is yes. But Nevada is a more populous state. You may have an easier time finding petition gatherers in Nevada, people who are either paid or volunteer to collect signatures for ballot measures from eligible voters, than in North Dakota. Nevada’s process for collecting signatures may be inherently more difficult than in North Dakota.
And that leads us to another part of the equation: It isn’t just about the sheer number of signatures. You need to find people capable of gathering those signatures, which means you also need to find people willing to do so in the first place. And you need to find people willing to sign the petition. I can tell you from first-hand experience that gathering petition signatures for anything political is…not fun. It’s a difficult endeavor.
Not only that, but in reality you need to collect more than the minimum signatures necessary. That’s because some signatures inevitably get rejected for one reason or another. Some reasons for this include the following:
- The signee might not actually be a registered voter.
- The signee might be a registered voter but not in the jurisdiction of what the petition is for.
- The signee might not have updated their signature in a long time, or the name doesn’t exactly match (e.g., a middle initial missing or added)
- The system that verifies the signatures just decides that the signature is no good. It’s not always transparent why. In fact, it often isn’t.
Signature verification laws differ from state to state, and some are more stringent than others. If you need to collect 100,000 signatures, you may want to aim for something like 105,000 instead.
Lastly, states have other nuances to account for in their systems. They might have more requirements in how petition gatherers must collect signatures. Each state has different timeframes for gathering petitions and deadlines by which they need to be gathered. Certain government officials may be more heavily involved in the initiative process in some states compared to others.
The Wording of the Amendment
Ohio and 10 other states have a single-subject rule for amendments, meaning a measure can only focus on one topic, subject, or policy area. So theoretically, if a state doesn’t have this stipulation, it would be easier to get a measure on the ballot than if a state did have this requirement, all else equal. By that logic, and in this specific context only, an abortion measure would be easier to get on the ballot in Arkansas, Illinois, Massachusetts, Michigan, and Mississippi than it was in Ohio.
The Electorate’s Vote
It is most common for states to require a simple majority (50%+1) as part of their criteria, or their only criteria, for the passage of a ballot measure by the voters. There are sometimes extra stipulations. For example, Nevada requires a simple majority in two straight general elections (e.g., 2024 and then 2026). Massachusetts requires a simple majority and the total number of votes cast on the amendment to be at least 30% of the total ballots. (There will be some voters who come out to the polls to vote on something else like president, but they won’t vote on an amendment.)
Ohio Issue 1 passed with 56.78% of the vote. If we were to assume the vote in Ohio was reflected exactly the same way in these other states, Florida would be the only one where Issue 1 definitively doesn’t make the cut because 60% approval is required. There are 11 states where the vote in Ohio was enough to pass for those states as well.
Illinois, Massachusetts, Mississippi, Nebraska, and Nevada are more uncertain, however. For the first four states, we don’t know if the percentage of total ballots criteria would have been achieved. Nevada is an impossible comparison because Ohio Issue 1 doesn’t need a second general election to pass like Nevada requires.
Factors Not Accounted for in the Tables
Not everything could be accounted for in the tables above, so here are some quick hits on other relevant data that will affect these would-be abortion ballot measures.
Campaign spending: Below is the campaign finance data as of October 18, 2023, from Ballotpedia’s page on Ohio Issue 1.
The funding and expenditures supporting Ohio Issue 1 was about 1.4x the amount that the opposition to the amendment raised and spent. While better funding doesn’t always mean victory — you still need to spend it effectively — this gap undoubtedly contributed (no pun intended) to Ohio Issue 1’s success to some extent.
But even when funding and everything else is relatively equal, the “no” side of an argument over a ballot measure generally has an easier task than the “yes” side of an argument. Why? To paraphrase a political operative who spoke in one of my grad school classes, the “yes” side needs to fully convince voters that they should vote “yes.” But the “no” side only needs to sow just a little bit of doubt in voters about the measure to get them to vote against it. Maybe that didn’t happen in Ohio, but opposition campaigns against a similar measure in other states might be more successful on that front.
Partisan affiliation of the electorates: This was touched on briefly earlier. 31 states track their voters by party affiliation. Ohio is not one of them, but given its voting history for governor and the state legislature, we can assume that there is a pretty large Republican population. Since Republicans are usually less supportive of abortion than Democrats are, states that have a clear Republican registration advantage may be less likely to support a measure on their state’s ballot similar to Issue 1 — although Ohio Issue 1 succeeded.
Election timing: Presidential elections, like the one coming up in 2024, see the highest rates of turnout. And turnout rates, which will play a big role in the fate of ballot measures that are assumed to have a partisan divide, will differ for the parties: As a general rule of thumb, Republicans turn out at higher rates than Democrats do. How these turnout rates shake out could mean the difference between a ballot measure’s success and failure. If Ohio Issue 1 were up for a vote in 2024, would it still have succeeded? We can’t say for sure.
Abortion-Related Measures Going Forward
Up to this point, this post treated the topic as if no other states had done anything on abortion similar to Ohio Issue 1. Now let’s shift and talk about ones that have happened or are potentially going to happen.
Two of the states that allow for citizen-initiated amendments had ballot measures in 2022 that succeeded. California Proposition 1 won with 66.88% of the vote and Michigan Proposal 3 won with 56.66% of the vote. Four other states also voted in 2022 on ballot measures relating to abortion, but they were not through citizen-initiated constitutional amendments. As such, I’m limiting the comparison since the process for those ballot measures is not the same as for initiated amendments.
But 2024 is going to see a lot of activity on abortion ballot measures. Here are some quick hits on their statuses:
- As of December 13, 2023, there are 10 citizen-initiated amendments in the early stages of the certification process. Two of those are in Missouri, one of which has six versions.
- Initiated amendments in Arizona, Colorado, Florida, Nebraska, Nevada, and South Dakota have all been cleared for signature gathering. Refer back to the tables above for the number of signatures required in each of those states. Keep in mind that petition gatherers will need to get thousands more signatures than those thresholds for when some of those signatures are invalidated.
- The Arkansas Right to Abortion Initiative has already hit a bump in the road. The Arkansas Attorney General has the ability to reject a ballot measure if they find it misleading.¹ Current Attorney General Tim Griffin did so on November 28, 2023. The supporters of the initiative could either rewrite the amendment or bring a grievance to the state supreme court.²
- A district court judge in Nevada ruled that that state’s potential Right to Reproductive Freedom Amendment violates the state’s single-subject rule. The amendment’s campaign is going to appeal the ruling.
When gauging the likelihood of success for these measures, think about all of the above aspects. With abortion becoming more salient than perhaps ever before, the sheer number of potential ballot measures coming in 2024, and the success of the abortion measure in California, Michigan, Ohio, and Vermont, it can be easy to conclude that the pro-choice movement is gaining a lot of momentum. And maybe they are, but we’ll need more data and time before we can make an informed judgment on that.
That said, the answer to the title of this post is almost certainly “yes, to some extent.” But as for how many states will enshrine abortion as a constitutional right, we won’t get a better sense of that until later in 2024.
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- The relevant passage is § 7–9–107, line 2e, which is on pages 29–30 of the .pdf (counted as pages 28–29 of the actual booklet).
- The relevant passage is § 7–9–107, lines 2e-f, which is on pages 29–30 of the .pdf (counted as pages 28–29 of the actual booklet). Line 2e indicates the provision for rewriting the amendment and 2f indicates the provision for bringing a case to the supreme court.
