I note a bit of speaking in jest there in the headline. But in our recent podcasts Kate Riga and I have been noting that Sherrod Brown must wish his reelection had coincided with the big abortion referendum that just won in Ohio by 13 percentage points. Could he get his wish? Could this end up on the ballot again in 2024? Let me start by saying that I don’t think he’ll get this lucky. But we can’t rule it out.
Ohio Republicans turned around from their Tuesday defeats to announce that they don’t plan on accepting the results of either the abortion or the marijuana legalization votes. With the marijuana legalization vote there’s actually a fair amount they can do since it was an “initiated statute” rather than a constitutional amendment. At least in theorythey can implement it to death, much as Florida did a few years ago when voters backed the felon enfranchisement. The abortion vote was for a constitutional amendment. So it’s locked in. There’s nothing the gerrymandered legislature can do to keep that text out of the state constitution. But Republicans think they’ve found a way around the state constitution.
Republican legislators put out a statement saying the amendment wouldn’t stand in their way and floated what seems to be their plan for defeating it. They say they will vote to remove abortion from the state Supreme Court’s jurisdiction. “Ohio legislators will consider removing jurisdiction from the judiciary over this ambiguous ballot initiative.”
In other words, by removing jurisdiction over the abortion issue the amendment would become meaningless text. Here’s the order of events: The state legislature passes an abortion ban. Litigants sue arguing that the law violates the express language of the state constitution. But the Supreme Court now lacks jurisdiction over the issue. So nothing happens. End of story.
The additional part of the puzzle is that state Supreme Court is now stacked with Trumpy right-wing Republicans. So we shouldn’t imagine a disinterested court will be looking for a clever way out of under the state legislature’s power grab. They’ll be happy to take the permission slip the legislature has given them to ignore the new language in the constitution.
I want to stress this again. This is easier said than done. It’s similar to Wisconsin Republicans’ threat to impeach newly elected Justice Janet Protasiewicz before she even ruled on her first case – a dire and unprecedented power grab but one they’ve also clearly been wary of pulling the trigger on.
You have one group of Republicans saying: can we please just stop losing elections over this? Please? But many more want to keep running up that hill. For the key players – state legislators – there’s nothing to lose. They don’t care. Their seats and their majorities are so gerrymandered that they can’t really lose. The rub comes for people running statewide, where gerrymandering has no impact.
I don’t think they’re going to be able to take this quite as far as they’re suggesting. But we can’t rule it out. That would put it right back on the ballot in 2024. It would be a gift for Sherrod Brown.
