Ohio’s August 8 Referendum and ‘Democracy’

By John M. Grondelski originally published in American Thinker

Ohio voters go to the polls Tuesday, August 8 to vote in a referendum to change requirements for amending the state constitution through initiative-and-referendum (I&R). Currently, a simple majority (50% + 1) suffices to pass an I&R constitutional amendment; Issue 1 would raise that requirement to 60%. (It would also raise the number of counties from which signatures for I&R petitions come from the current 44-50% of Ohio — to 88, i.e., all counties).

The immediate impetus for the effort is an effort to staunch a virulently pro-abortion “Right to Reproductive Freedom” amendment to the Ohio constitution, already certified for inclusion on the November 7 ballot. That amendment, if adopted, would legalize abortion through birth (Potemkin village language about “viability” notwithstanding) and force Ohioans to pay for it while stripping parents of rights to parental consent or even notification. 

Ohio pro-life forces hope to change the thresholds for amendment approval to defeat the “Reproductive Freedom” amendment. They’re rightly concerned that, in an off-election year like 2023, out-of-state interests can pour money into an abortion referendum in Ohio (and legislative elections in Virginia, the only other major pro-life contest this year) to lock abortion into the Buckeye State’s basic law.

Abortion proponents complain that the effort is “anti-democratic” and “takes away people’s rights to decide.” Is there merit to their claim?


Superficially, raising the requirements for a constitutional amendment might seem “anti-democratic.” It’s not. Here’s why.

Constitutions are the basic law of any jurisdiction, country, or state. They set the basic rules, including the basic values, for that jurisdiction. Because, as Supreme Court Justice Oliver Wendell Holmes once wrote (in the 1905 case, Lochner v. New York), constitutions are “made for people of fundamentally differing views,” they should not be used to lock down policy wins for transient majorities. That is why most constitutions’ amending processes are rigorous: they are designed to ensure that changes to the fundamental law reflect a deep and abiding consensus that is tested by time and breadth of agreement. 

That’s why, in most states, changing the constitution requires passage of amendments twice, usually by different legislatures to ensure an election took place between them. It’s also why that product then usually still has to go before the voters to approve. Even Ohio’s constitution somewhat reflects this. If the State Legislature wants to change the constitution, it has to do three things:

  1. adopt the amendment by 3/5ths of both houses (the same margin Issue 1 would impose on I&R-originated amendments);
  2. complete that process no fewer than 90 days before an election; and
  3. then submit the amendment to be approved by Ohio voters.

The fact that popularly-initiated constitutional amendments in Ohio can be approved by a one-time bare majority, without the review processes normal legislative action provides, makes the I&R process an outlier… and dangerous. Note that the bare majority does not even have to be a majority of Ohio’s registered voters, only a bare majority of those who bothered to show up. That means special interest “get out the vote” campaigns — perhaps funded by out-of-state money — can use the process to prevail.

The U.S. Constitution’s amending process is designed to force political consensus on changes to the supreme law of the land. Both houses of Congress have to pass an amendment by 2/3s majorities. Then the amendment has to be approved by 3/4s of the states, i.e., at least 75 different legislative houses across America. That process has protected our Constitution against being altered for what the Declaration of Independence called “light and transient causes.”

Why does Issue 1 also raise the number of counties where signatures for I&R amendments have to be gathered? Simply because Ohio is America in miniature. That’s why it’s often a swing state. It has cities, suburbs, and rural areas — and a lot of those rural areas are pejoratively considered “flyover country” not just by out-of-staters but even some Ohioans.

Requiring signatures to come from all across Ohio ensures that every corner of the state is represented in changing its constitution. The current process favors cities (especially those with entrenched political machines, like Cleveland): run up your signatures in the large cities along I-80 in northern Ohio, grab some names in Columbus and Cincinnati, get signatures from some neighboring counties, and… ignore the rest. Issue 1 would make sure the rest are not ignored.

If Ohioans think that’s undemocratic, they should consider that the “undemocratic” Electoral College gives swing states like Ohio, Florida, and Pennsylvania greater weight in terms of not being ignored: you have to try to win there. Without it, national politicians could treat all of Ohio as “flyover country.” A state that likes to throw its weight in national affairs should ensure citizens in every corner of Ohio are represented in state affairs, including such fundamental ones as changing the state constitution.

While Ohio pro-life groups have mobilized behind Issue 1 August 8 to protect the unborn next November, there are many other groups recommending a “yes” vote on the proposition. They do so because they see the low, one-time thresholds to tamper with the state constitution as easy pickings for deep-pocketed special interests trying to ram something into the document. Turning out the vote in the middle of summer will be a challenge, but the stakes are high, not just for the unborn but for the protection of rule of law against easy manipulation. Voting “yes” on Issue One is not “anti-democratic.” It’s recognizing that constitutions matter.

John M. Grondelski is an independent scholar writing from Falls Church, Virginia.