The most recent attempt to undermine democracy and hoard power in the hands of a few in America went down to a resounding and welcome defeat in Ohio last week.
Utah voters should prepare themselves to face the same attack on their democracy as soon as next year.
The right to initiative and referendum, promised to all of us in the state Constitution, is a process the Utah Legislature has shown particular contempt for in the past. There is every reason to believe that its leaders could attempt the same stunt their GOP brethren tried to pull in Ohio. Even though it didn’t work there.
Even when the voters approve a ballot question, Utah lawmakers have been quick to overturn, water down or delay the laws that should have resulted. Witness the quick evisceration of the Better Boundaries vote of 2018, the one that would have put an end to partisan gerrymandering of legislative and congressional districts, as well as legislative action that unconscionably delayed implementation of public votes in favor of medical cannabis and the expansion of Medicaid under the Affordable Care Act.
Laws that pass both houses of the Utah Legislature by better than a two-thirds margin are already exempt from voter review. Which is why the school voucher plan approved by lawmakers this year will not face the same test as a similar scheme that was overwhelmingly rejected at the polls in 2007
In a special election campaign that was and was not about abortion rights, the Republican-controlled Ohio Legislature had placed before the voters of that state a referendum that would change the rules for how the state conducts its referendums. The measure, had it passed, would have moved the goalposts on citizen-initiated legislation so that they would have to carry at least 60% of the vote to be approved — up from the current simple majority.
It didn’t pass. It went down by a large margin — 57% to 43%.
Results in urban areas and around university campuses were especially lopsided. In Cuyahoga County (Cleveland) and Franklin County (Columbus/Ohio State University) votes against the measure topped 75%. In counties that were carried by Donald Trump in the 2020 election, the question polled far worse than the former president had. Turnout was high, even though the Ohio Legislature deliberately tried to undermine voter participation by scheduling the vote for August, when many people are on vacation and not thinking about politics.
While the ballot measure nowhere mentioned abortion, women’s rights or the ability of families to make their own health care decisions, everyone in the Buckeye State knew that the target of the August referendum was a question that will be on Ohio’s November ballot, a vote to enshrine the right to abortion in that state’s Constitution.
Polls show that a healthy majority of Ohio voters support abortion rights to one degree or another, and that odds are good that the November question protecting a woman’s right to choose could carry with a majority of as much as 59%. A healthy majority for most democratic societies, but not quite enough for the supermajority that Legislature wanted to require.
Abortion is an issue that deeply divides Americans, but in cases where the matter has been put to a vote, directly or indirectly, the abortion-rights side generally prevails. Voters in the red states of Kansas and Kentucky rejected an anti-abortion referendums last year. Abortion rights were a key question in the recent election that gave Democrats control of the Wisconsin Supreme Court.
It is more difficult to get a fix on how Utah voters would feel about any abortion question — pro or con — that might be placed on their ballot. Depending on how the question is put to them, Utah poll respondents have indicated that they favor some limits on abortion, but that they are not comfortable with the state stepping in to make the most personal of decisions for Utah women and their families.
That matters because the issue is likely to remain a political hot topic for some time to come.
The U.S. Supreme Court ruling in the Dobbs case, which overturned the right to an abortion protected by the Roe v. Wade ruling of 1973, put the matter back into the hands of the states. In Utah, that has meant the “trigger law” banning most abortions, passed by the Legislature in 2020, came into effect last year, only to be set aside by the courts while the matter is litigated.
The Utah Supreme Court heard arguments on the case last week. If the court upholds the trigger law, there is every reason to believe that the House of Unrepresentatives will quickly be about efforts to make the law even more strict. If the court reads the equal rights provisions of the original Utah Constitution as protecting every woman’s right to control her own health and life, and overturns the abortion ban, lawmakers will waste no time attempting to make the law as restrictive as it can be, looking for loopholes and exceptions they might exploit.
It won’t always be about abortion or women’s equality before the law, but many other issues where, as we have seen, lawmakers are primed to ignore the will of the people.
Utah voters should remain jealously protective of their right to push back at, or get ahead of, legislative actions through the initiative and referendum process. We should not stand for any weakening of that check on a Legislature that already holds far too much power.
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