Ohio’s Abortion Ban Is Rekindling a Century-Old Battle Over Direct Democracy

Today, voters in Ohio will go to the polls to deliberate on a change to the state’s referendum law. Backed by prominent Republicans and their patrons in the business community — particularly, the Ohio Chamber of Commerce — the initiative would raise the bar required to secure amendments to the state constitution. Since 1912, when Ohio joined other states in adopting the referendum system, voters have been able to bypass the state Legislature and amend the constitution by a simple majority. The new measure would require 60 percent support.

It’s little mystery why Ohio Republicans snuck a late initiative onto the ballot, just months after the GOP-dominated Legislature passed a law banning August referenda at the local level, on the reasonable grounds that voter participation rates are lower during the dog days of summer. In 2019, the heavily gerrymandered Legislature passed a deeply unpopular bill prohibiting abortions after six weeks of pregnancy — before many women know they are pregnant — without exceptions for rape or incest. The law is currently on hold, pending judicial review. In response, reproductive rights advocates secured enough petition signatures to put a referendum before the voters this November; if it passes, abortion rights will be enshrined in the Constitution, beyond the Legislature’s ability to meddle.

Given current polling, Republicans are expected to lose the November vote, so they’re trying to change the rules mid-game. The gambit is so transparent that even two former GOP governors, Robert Taft and John Kasich, have come out in opposition.

The struggle over popular governance is an old one. As is the case today, many state legislatures in the early 20th century had grown unrepresentative, through a combination of malapportionment and gerrymandering. During the Progressive Era, states like Ohio adopted new political instruments, including popular referenda and ballot initiatives, to circumvent legislatures that no longer reflected the will of the voters.

What’s at stake in today’s vote is not just abortion rights, but whether Ohio will turn its back on a hard-won legacy dating back over a century.

Though dynamics in every state were different, powerful corporate interests increasingly controlled the economy during the early 20th century. Between 1897 and 1903 the number of “tight combinations,” or mega-holding corporations, grew from just seven to over 300, and these 300 corporations controlled 40 percent of all manufacturing in the United States.

In a nation where state legislatures still elected United States senators, and where in many states, legislatures were not apportioned strictly by population, but rather, by town or county, corporate interests held considerable sway over government at all levels. They funded well-oiled machines that controlled the levers of government and easily exploited the electorate’s limited ability to affect the practical outcome of elections. Unsurprisingly, those who governed were increasingly removed from a rising population of urban workers, many of them non-Protestant immigrants who clamored for better public services, regulation of public utilities — like railroads, power and street cars — and new worker and consumer safety protections.

While legislatures tended to be undemocratically apportioned, voters could often elect mayors and governors who favored progressive reforms. Such reforms included “home rule” charters, which freed cities from oversight by corrupt state legislatures, as well as new provisions such as ballot initiatives and referenda, which allowed a state’s voters to govern themselves directly, without legislative oversight. In 1896, the National Direct Legislation League met in St. Louis and selected 56 delegates from 37 states who would lead the charge for these innovative electoral reforms. California, under progressive Governor Hiram Johnson, and Wisconsin, under the progressive Governor Robert LaFollette, were early trailblazers in direct democracy. But Ohio was not far behind.

There, progressive forces, including those aligned with Cleveland Mayor Tom Johnson, and Social Gospel activists led by the Reverend Herbert S. Bigelow of Cincinnati's Vine Street Congregational Church, clamored for initiative and referenda reforms. In 1906, a referendum bill passed the state Senate but died in the lower house. Two years later, activists secured full legislative approval, but the governor, closely aligned with the state’s business interests, worked behind the scenes to kill the bill in conference committee.

It took a state constitutional convention in 1912, during the high-water mark of political progressivism — the same year that Theodore Roosevelt and Woodrow Wilson squared off against each other for the White House — to get a referendum provision on the ballot. Notably, both leading presidential candidates backed the idea. In a speech before the Ohio constitutional convention, Roosevelt affirmed, “I believe in the Initiative and Referendum, which should be used not to destroy representative government, but to correct it whenever it becomes misrepresentative.” Wilson, for his part, observed that the “immediate thing we have got to do is resume popular government. We are cleaning house and in order to clean house the one thing we need is a good broom. Initiative & Referendum are good brooms.”

The lead-up to the ratification vote was “the most bitter and momentous struggle known in the state for a generation,” a contemporary observer noted. “Every ruse and trick known to Big Business politicians was employed to frighten the people of Ohio from adopting the I&R. The whole corporate power of the state backed by Wall Street money and influence was thrown into the fight.” In the end, the provision won with over 57 percent support.

Once a swing state, Ohio has grown steadily redder in recent years. But it is also one of the most extreme cases in legislative and congressional gerrymandering in the country. By drawing maps that stack the decks in their favor, engaging in widespread voter registration purges that disproportionately affect young and minority voters and making it harder to register altogether, the legislative majority — even in defiance of the State Supreme Court, which has ruled some of these practices unconstitutional — has ensured for itself a lasting supermajority, seemingly in perpetuity.

But in attempting to ram an unpopular abortion ban down the voters’ throats, and in their cynical attempt to change the way referendums operate to preserve that widely detested law, the GOP majority may have overplayed its hand. To paraphrase Roosevelt, when a legislature becomes “misrepresentative,” a referendum can operate as a much-needed corrective.

Today’s vote will determine whether Ohioans preserve an important artifact of their Progressive Era legacy. As was the case in 1912, at issue is the very nature of what it means to govern and be governed.