Tales & Trails of a Traveling Wiseguy

Voters in Ohio went to the polls yesterday in a special election for "Issue 1", a state constitutional amendment to change the process for amending the state constitution. The measure would increase the threshold required to enact constitutional amendments from a simple majority of the popular vote to a 60% supermajority. Preliminary results have the measure losing 57-43.

Why does this matter? The most immediate reason is that it's a proxy fight for abortion rights. Pro-choice supporters have qualified a state constitutional amendment for the November election. Republicans in state government are terrified that it will win in a simple-majority vote. The Republican supermajority wants to ban abortion even though polling shows a clear majority favors keeping it legal. Now they're trying to change the political rules to stop it.

Why am I fingering Republicans on this? Because they're monkeying with the rules of politics. They can't win under the current rules so they're changing the rules. They already used their supermajority control in the state legislature to eliminate special elections— arguing, with some merit IMO, that they're too expensive and generate such low turnout that the results are not fair representations of the voters' will— then created a special special election to try forcing this issue through.

BTW, last year's special election got just 8% turnout. It's clear Ohio Republicans were hoping to sneak through a major change to voting rights with a tiny number of voters. Surprise for them with rules-monkeying on the ballot: this year the special election drew at least 5x the turnout.

Interesting note for policy wonks: Ohio's process for constitutional amendment via ballot proposition is similar in part to California's system of ballot propositions (link to my blog on the topic a year ago). Both date to the same era and for the same reason. In the early 1910s people looked to reform politics to curb the excesses of the Gilded Age, when big-money interests and politicians themselves made state legislation unrepresentative of the will of the majority of the voters. Ballot propositions were a way for voters to work around unresponsive legislatures to push through laws and additional reforms that had broad popular support.

On that topic let me reiterate something I've noted before. Voters voting in favor of protecting abortion rights is not just a thing in left-leaning "blue" states like California where voters are protecting abortion; it's red states, too. Last year 6 red states put abortion restrictions on the ballot and they lost in all 6. Ohio Republicans are similarly out of step with what voters in their own state, including voters in their own party, want. They tried jamming the process to avoid another loss. They lost.

Yesterday the Supreme Court published its decision on Dobbs v. Jackson Women's Health Organization. This is the political earthquake of a ruling that was leaked in draft form 7 weeks ago. Earthquake, because it reverses the 1973 ruling in Roe v. Wade that affirmed a woman's right to seek abortion. That "law of the land" has guided how women live their lives for nearly 50 years.

The overturning of a Supreme Court ruling is rare. There's a principle in jurisprudence called Stare Decisis. It's Latin for "Stand by things decided" and it means that judges should respect the precedent of previous decisions on an issue rather than whipsawing the law back and forth when they happen to disagree with it. Chief Justice John Roberts explained during his confirmation hearings years ago that stare decisis means that to reverse a past ruling a judge must conclude more than just that it was "wrongly decided"; judges must also weigh issues such as how a reversal upends settled expectations, whether a reversal diminishes the legitimacy of the court, and whether a particular precedent is workable or not.

Roberts did not to vote for overturning Roe v. Wade. Though he concurred with 5 other justices in upholding the Mississippi law at the center of Dobbs v. Jackson, a law that restricted abortion after 18 weeks, making that decision a 6-3 vote, he did not join the 5-4 majority that went far beyond that to strike down Roe v. Wade entirely.

How rare of an outcome is this? The only other time a Supreme Court ruling that affects the daily lives of literally tens of millions of Americans was when Brown v. Board of Education in 1954 overturned the 1896 ruling in Plessy v. Ferguson. Plessy notoriously upheld the doctrine of "Separate but Equal"— a cornerstone of racism perpetuating legal apartheid after the elimination of slavery in the 1860s. Note how the long arc of history bends toward justice in that reversal.... The reversal of Roe v. Wade is the first time the Supreme Court has ever reversed a previous opinion to take away a civil right.