Ohio legislators aim to head off an abortion rights constitutional amendment.

Welcome to the State Court Report newsletter.

This month, the Ohio Supreme Court gave the go-ahead for an August special election on a proposed amendment to make it harder to amend the Ohio Constitution. The change would go into effect just in time to raise the threshold required to pass an abortion rights amendment that is expected to go on the ballot this November — and the timing is not a

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coincidence

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The amendment, proposed by the state legislature, would raise the proportion of votes required for passing a constitutional amendment from 50 percent of the vote to 60 percent. It would also create more onerous signature requirements for citizen initiatives. Similar measures have popped up in other states. (Most recently, Arkansas voters defeated a proposed supermajority amendment in 2022.) But as with many issues related to state constitutions, the U.S. Supreme Court’s abortion ruling in Dobbs has raised the stakes and brought greater focus to the role of direct democracy in the states.

In 2022, six states had abortion-related measures on the ballot, some establishing and some weakening or eliminating abortion rights. Voters in every one of these states — California, Kansas, Kentucky, Michigan, Montana, and Vermont — came down on the side of abortion rights.

This has contributed to burgeoning interest among abortion rights advocates to put more abortion measures on the ballot, especially in states, like Ohio, where a gerrymandered state legislature supports abortion bans but there is public support

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for abortion rights and a citizen initiative option for amending the state constitution. This has in turn prompted increased interest

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from state legislatures in making it more difficult to amend state constitutions, particularly through ballot measures.

Ohio may be a bellwether. The issue before the court in State ex rel. One Person One Vote v. LaRose

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was narrow but potentially significant for the success of the ballot measure: the timing of the special election in which voters will decide whether to adopt the amendment.

Earlier this year, Ohio enacted a law requiring that special elections be held only on certain dates specified by statute. Votes on constitutional amendments were not included on the list of authorized August special elections, and a separate provision required any special election for a constitutional amendment to correspond with the primary election date, which under Ohio law does not occur in August.

These limits on August amendments had been supported by the secretary of state and local election officials because August elections are expensive to implement and have low turnout. Nevertheless, when the legislature adopted a joint resolution to put the proposed amendment on the ballot, it called for an August 8 election — a move that critics suggested was designed to make it harder to organize opposition to the change.

In a 4–3 ruling, the court concluded that the legislature was within its powers to set an August date, pointing to a state constitutional provision authorizing the Ohio General Assembly to submit a proposed amendment to voters “at either a special or general election as the General Assembly may prescribe.” Citing a 1910 dictionary definition of “prescribe” (the relevant constitutional provision was adopted in 1912), the court concluded that a special election could take place on a date specified in the joint resolution proposing the amendment. The dissent characterized the majority as allowing “the General Assembly to break its own laws” and highlighted that joint resolutions don’t ordinarily have the force of law.

One of the really striking aspects of state constitutions is that they are so much easier to amend, especially in the 18 states that have initiative processes. It’s one of the ways that state constitutionalism is far more dynamic — and populist — than what we’re used to in the federal context. One thing to watch in Ohio is whether this dynamism may end up being used to tighten voters’ ability to change their constitutions going forward.





New Resource: Gender Equality Under State Constitutions

Diana Kasdan and Alexander Wilson of the Center for Reproductive Rights introduce a new CRR resource

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detailing state constitutional protections against sex discrimination. “Debates over the constitutional meaning of life, liberty, equality, and reproductive rights are now taking shape in state courts,” they write. Fourteen states have established a more stringent legal standard for sex discrimination than federal precedent. Read more

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Iowa Supreme Court Reverses Itself on Lawsuits for Constitutional Rights Violations

The Iowa Supreme Court recently overruled a 2017 decision that state officials could be sued directly under the state constitution for money damages. Marcus Gadson, an assistant professor of law at Campbell University, argues that both the 2017 and 2023 rulings largely echo federal constitutional debates. “Other states confronting issues of legal remedies should consider provisions unique to their state constitutions,” he writes. Read more

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A Look at the Evolution of Washington’s ‘Privileges or Immunities’ Clause

Martha Davis, a professor at Northeastern University School of Law, examines the history and evolving interpretation of the Washington Constitution’s “Privileges or Immunities” Clause. After first adhering closely to federal precedent, the state high court later gave the provision independent meaning and force. It “provides a model of how to honor the intentions of state constitutional framers while also responding to changing times,” writes Davis. Read more

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Washington Supreme Court Unanimously Upholds State Voting Rights Act

This month, the Washington Supreme Court rejected federal and state constitutional challenges to the Washington Voting Rights Act. The Brennan Center’s Yurij Rudensky and Sonali Seth analyze the ruling in Portugal v. Franklin County. It is “a powerful rejection of arguments that seek to create friction between the U.S. Constitution and state law voting rights protections,” they argue. Read more

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What Else We’re Reading (and Watching)

The National Center for State Courts recently announced Court Opportunity Recruitment for All

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(CORA), a new platform connecting students to state court clerkships, internships, and externships.

On June 11 at 3 p.m. CT, the State Democracy Research Initiative will host Year in Review: Democracy Litigation in SCOTUS and the States

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. Register to watch in person or remote.





Notable Cases

State ex rel. One Person One Vote v. LaRose

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, Ohio Supreme Court

Ordered minor changes to the ballot language for a proposed constitutional amendment (described above) that would make it more difficult to amend the state constitution going forward. Read more from the Associated Press

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Blair v. Brunett

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, West Virginia Supreme Court of Appeals

Ruled that plaintiffs in a suit to stop the creation of five charter schools in the state lacked standing because the governor does not have the ability to authorize public charter schools. Read more from West Virginia Public Broadcasting

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Aurora Public Schools v. A.S.

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, Colorado Supreme Court

Held that a recent law creating a cause of action for survivors of child sex abuse against perpetrators and institutions, including a window that applied regardless of whether previously available causes of action were time-barred, violates the state constitution’s prohibition on retrospective legislation. Read a preview of this case by Emma Hetherington in State Court Report

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and a description of the ruling in Colorado Politics

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Planned Parenthood of the Heartland v. Meadows

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, Iowa Supreme Court

In a nonprecedential 3–3 ruling, kept in effect a lower court decision declining to dissolve an earlier permanent injunction of the state’s six-week abortion ban. Read more from NBC News

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