Breaking Down Ohio's Issue 1

Part 3: How do other states handle amendments to their constitutions?

Photo by Elliott Stallion on Unsplash

How easy is it to amend a state constitution? Considering that the current constitutions of the 50 states have changed a total of 7,000 times since they’ve been established, it might be easier than one thinks.

According to the Brennan Center, a nonpartisan policy institute, Alabama, California, Louisiana, South Carolina and Texas amend their constitutions an average of three to four times a year. Illinois, Indiana, Kentucky, Tennessee and Vermont, on the other hand, amend their constitutions an average of once every three to four years.

Why do state constitutions change so often, when the U.S. Constitution is much more difficult to amend? ConstitutionNet, which supports constitution-building around the world, explains that “While state constitutions cannot infringe on rights provided by the U.S. Constitution, they can protect additional rights.” In 2022, for example, Michigan approved an amendment calling for a fundamental right to vote; Nevada adopted a state-level Equal Rights Amendment; and Iowa amended its constitution to include a right to bear arms.

“The state constitutions from their very beginning are more committed—both in their texts but also in their background understanding—to democracy as rule by the people than the federal constitution is,” said constitutional scholar Jessica Bulman-Pozen. “You see a lot of tinkering in the service of this vision in a way that just hasn’t happened in the federal constitution.”

States with citizen-initiated amendments

States take different approaches to amending their constitutions. You can do a deep dive into those approaches here. For our purposes, we’re going to focus on citizen-initiated amendments.

Seventeen states, including Ohio, utilize citizen-initiated amendments. These require groups to obtain a specified number of qualified signatures so that an amendment can be placed on an election ballot. For an amendment to be passed, it must get a certain amount of votes in an election.

Currently, 38 states require a simple majority (50% + 1) of voters to approve an amendment. Eleven states require a supermajority. (Only Delaware does not require voter approval to amend its constitution.)

From Ballotpedia:

• New Hampshire has the highest vote requirement at two-thirds (66.67%).

• Florida has the second-highest vote requirement at 60%.

• In Colorado, a 55% vote of voters is required to amend the state constitution.

• In Hawaii, Minnesota, and Wyoming, a simple majority of the total ballots cast in an election is required, meaning a blank vote has the same effect as a ‘no’ vote in these three states.

• The other five states have other requirements, such as requiring a simple majority vote on the ballot measure itself and a certain percentage of voter turnout or ballots cast.

Back to Ohio

If Issue 1 passes, Ohio will become only the 12th state to require a supermajority (60% of the vote) to amend the state constitution.

Why is Ohio suddenly looking to shift from simple majority, which has been in place since 1912? As we’ve discussed before, the Republican-led Ohio government sensed that an amendment would be placed on the November ballot to loosen abortion laws in the state. To get ahead of that, the state announced a special election on Aug. 8 to decide if it should be harder to amend Ohio’s constitution.

Some state Republicans insist that Ohio has been considering switching to a supermajority for years, but Democrats, who unanimously oppose Issue 1, see this as a power grab. “(This is) a body that, at the first inkling of losing control, moves the goalposts and rewrites the rules to ensure that they remain untouchable,” said Rep. Bride Rose Sweeney during a House debate on Issue 1.

Pro-life groups are concerned that if Issue 1 fails, it would mean a much greater chance that the abortion amendment will pass in November. They fear that the amendment’s wording will remove parents’ rights (using the legal term “individual” suggests the amendment does not require parental consultation before a minor considers an abortion), enable abusers (language such as those “assisting individuals” who seek abortions could mean that adult men sexually abusing minors would not be punished) and allow abortion throughout pregnancy (although the amendment does state that abortion would be prohibited upon fetal viability).

Supporters of Issue 1 believe that requiring 60% of the vote to pass an amendment will:

• No longer allow half of Ohioans to be ignored in the petition process

• Eliminate loopholes allowing fraudulent petitioners excess time to collect signatures

• Restore trust and confidence in the state constitution.

Opponents say that a 60% requirement would mean that just 40% of voters could make decisions for the whole state. They note that the current simple majority ensures that one person equals one vote.

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For our final segment in this series, we’ll be looking at myths and facts about Issue 1.