There's a very clear pattern of activity across the entire country regarding battles over voting rights and reproductive rights. Any objective interpretation of the pattern can only conclude the consequences are profoundly anti-democratic. There is also no surprise regarding which party is adopting these tactics.
Divide and Conquer to the States and Stall
If opponents succeed at blocking your agenda from being imposed at the federal level, work with Federal courts to recast your issues as solely a state-level concern, forcing federal agencies to stand down and "leave it to the states."
If your opponents manage to block your agenda at the state level or (horror) win some of their agenda at the state level, sue to have state courts throw it out on "constitutional" grounds and force your opponent to attempt amending the state constitution.
Impeachment
If your opponent wins open positions on the state Supreme Court altering the balance to allow wins for your opponent, work to impeach the newly elected Supreme Court justice, BEFORE THEY'VE SAT FOR A SINGLE DAY OF COURT.
This happened in Wisconsin, where debates over Wisconsin State Supreme Court rulings on abortion rights resulted in a hotly contested race for an open seat on the court. A judge won that race, in large part by explicitly clarifying her position on the abortion issues so voters could not argue they did not understand the positions of the two candidates for the slot. She won that race by a large margin and Republicans in the state legislature immediately began public discussions of impeaching her. Before she had even be sworn in for her first day of court. She did start her term but Republicans are still threatening impeachment because she has refused to recuse herself from a case involving gerrymandering in the state. Why should she? None of her Republican peers won their seat by not espousing conservative interpretations of judicial activism.
https://www.nytimes.com/2023/10/06/us/politics/wisconsin-maps-janet-protasiewicz.htmlRaising the Bar
If it looks like the opponent will pursue constitutional amendments, then raise the criteria required to get issues on the ballot to keep amendments off the ballot.
If it looks like the opponent will overcome the filing hurdles to get an issue on the ballot, then raise the yea vote percentage required to minimize the chance of any amendment winning the required vote.
Ohio Republicans attempted this with an initiative on the August 2023 ballot. Issue 1 would have raised the required yea vote from a mere 50% majority to a 60% level.
https://www.cleveland.com/news/2023/06/state-issue-1-would-make-ohio-one-of-the-toughest-states-for-citizens-to-propose-constitutional-amendments.htmlThis initiative was timed to appear on a primary election ballot by Republican backers who hoped for a typically light turnout where the far-right faithful might succeed at showing up in enough numbers to get it passed in time to block an actual abortion rights amendment already slated for November 2024 from passing with a mere 50% majority requirement.
Ohio voters showed up in numbers far above normal primary participation rates and rejected the effort by a 2:1 margin.
https://www.statenews.org/government-politics/2023-08-08/issue-1-falls-ohio-voters-reject-raising-voter-approval-threshold-to-amend-constitutionAnd if that wasn't message enough for the Ohio Republican Party, the actual abortion rights amendment on the November 2024 ballot also passed, but with 56.6%. That's a pretty substantial margin for an abortion rights issue in a bright red state but it shows the Republicans are carefully picking these strategies. They understand the margins and have a clear understanding where to set the thresholds to bring democratic initiatives to a halt.
A similar effort was attempted in Missouri for the 2024 elections. It would have raised signature thresholds from 8% of prior year's votes for governor across multiple state districts to 10% and raised the approval threshold from the 50% in place since the state was founded in 1821 to 60% (later lowered to 57%). It passed an initial Missouri House vote but changes applied to the bill failed to pass before the legislation session expired so it will not affect the 2024 elections. It will be back, though.
https://missouriindependent.com/2023/01/26/four-bills-making-initiative-petition-process-harder-passed-by-missouri-house-committee/Doublespeak
If opponents look poised to get an amendment on the ballot, then manipulate the language of the ballot, citing rules about clarifying anticipated costs and risks of the new initiative to scare the beejesus out of would-be supporters of the initiative to preserve the status quo.
Missouri Republicans attempted this with the language for an amendment to protect reproductive rights.
https://www.komu.com/news/state/missouri-supreme-court-rejects-ashcroft-s-attempt-to-appeal-abortion-ballot-language-fight/article_c8a6c37a-3c0b-596b-801e-19279615ec3b.htmlThe Missouri Secretary of State is required to approve the wording of all ballot initiatives to conform with state laws requiring expected costs and risks associated with any proposed amendment to be clearly explained in the amendment's wording on the ballot. The original language for the proposal asked the voter
Shall the State of Missouri:
- establish a right to make decisions about reproductive health care, including abortion and contraceptives, with any governmental interference of that right presumed invalid;
- remove Missouri’s ban on abortion;
- allow regulation of reproductive health care to improve or maintain the health of the patient;
- require the government not to discriminate, in government programs, funding, and other activities, against persons providing or obtaining reproductive health care;
- and allow abortion to be restricted or banned after Fetal Viability except to protect the life or health of the woman?
Ashcroft attempted to replace it with this:
- allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice;
- nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion;
- allow for laws to be enacted regulating abortion procedures after Fetal Viability, while guaranteeing the right of any woman, including a minor, to end the life of their unborn child at any time; and
- require the government not to discriminate against persons providing or obtaining an abortion, potentially including tax-payer funding?
Note how he invented intents in his wording out of whole cloth. Nothing in the original amendment demands that abortion be allowed to be provided by unlicensed parties or provided without the threat of being sued for malpractice.
The organizations working to get the amendment on the ballot for 2024 had to sue and a three judge Missouri appellate court panel finally rejected Ashcroft's language.
Entangle with Arbitrary Minutia
If that doesn't work, argue that the desired language is too broad and violates state laws requiring amendments to be "single purpose." If you win, you can add years to the effort required by your opponents by forcing them to parse the original "ask", decide how to break it into "single purposes", then RE-SOLICIT signatures for each separate amendment. Not only is that extremely time consuming, it creates confusion with voters (Didn't we just approve this? Didn't I just sign a petition eight months ago for this?), and generates "electoral fatigue", all of which help preserve the status quo even when the public is heavily in favor of changing that status quo.
This just happened in Nevada, where an amendment to protect reproductive rights was deemed by a judge to include too many issues which would make interpretation of its demands "too vague."
https://www.yahoo.com/news/judge-rejects-attempt-enshrine-abortion-030126727.htmlThe language proposed by the petitioners filed with the Secretary of State can be read here:
https://www.nvsos.gov/sos/home/showpublisheddocument/12393/638302856609340766The key terms are:
- Every individual has a fundamental right to reproductive freedom, which entails the right to make and effectuate decisions about all matters relating to pregnancy, including, without limitation, prenatal care, childbirth, postpartum care, birth control, vasectomy, tubal ligation, abortion, abortion care, management of a miscarriage and infertility care. The right of an individual to reproductive freedom shall not be denied, burdened or infringed upon unless justified by a compelling State interest that is achieved by the least restrictive means available.
- Notwithstanding the provisions of subsection 1, the State may regulate the provision of abortion care after fetal viability, provided that in no circumstance may the State prohibit an abortion that, in the professional judgment of an attending provider of health care, is medically indicated to protect the life or physical or mental health of the pregnant individual.
- The State shall not penalize, prosecute or otherwise take adverse action against an individual based on the actual, potential, perceived or alleged outcome of the pregnancy of the individual, including, without limitation, a miscarriage, stillbirth or abortion.
- The State shall not penalize, prosecute or otherwise take adverse action against a provider of health care, who is licensed by the State, for acting consistent with the applicable scope of practice and standard of care for performing an abortion upon, providing abortion care to, or providing reproductive care services to an individual who has granted their voluntary consent.
- The State shall not penalize, prosecute or otherwise take adverse action against any individual or entity for aiding or assisting another individual in exercising the right of the individual to reproductive freedom with the volunta,y consent of the individual.
- Nothing herein narrows or limits the rights to equality and equal protection.
- As used in this section:
(a) "Compelling state interest" means an interest which is limited exclusively to the State's interest in protecting the health of an individual who is seeking reproductive health care that is consistent with accepted clinical standards of practice.
(b) "Fetal viability" means the point in a pregnancy when, in the professional judgment of an attending provider of health care and based on the particular facts of the case, there is a significant likelihood of the sustained survival of the fetus outside the uterus without the application of extraordinary medical measures.
That's a lot of reading in the voting booth, no doubt. However, the terms certainly aren't attempting to mislead the voter and they are ALL definitely related to a common set of rights that are generating litigation that merit being addressed as a set. Allowing voters to approve the changes as a set makes voters' intent more clear, not less clear.
Republicans have good reason to fear the ballot box. Their agenda is falling further out of favor with each election cycle, yet they remain fixated on policies that undermine education, foster ever-growing wealth inequality and roll back advancements in civil rights, reproductive rights, labor rights and privacy rights. When you are falling to an electoral "market share" of 35-40 percent in fairly contested races, democracy isn't your friend, it's the enemy. That's exactly the treatment democracy is getting from Republicans across the country.
WTH
