Issues with Ohio

      6 Comments on Issues with Ohio

While I am glad that the Ohio voters rejected Issue 1 (and that it wasn’t close), I also think that it should be difficult for voters to change their State Constitutions. The current procedure in Ohio seems to me to be suboptimal—there is little to prevent a majority of Ohio voters from passing an amendment that runs roughshod over the rights of any minority faction. And there have evidently been 125 amendments! That seems like… a lot.

To be fair, almost all of those started in the legislature and passed by a supermajority there before being put to a vote. There have only been 19 amendments in the last century-and-a-bit that bypassed the legislature entirely. And of the legislative-initiated amendments, a lot of them seem to have been things that really should have been laws rather than constitutional amendments, but the Ohio constitution requires some stuff to be handled that way. So the current set-up, practically speaking, as far as I can tell, is more about making it more difficult to pass certain kinds of ordinary legislation rather than making it easier to fundamentally change the State Constitution. So perhaps making constitutional amendments even more difficult, without addressing that whole thing, would be a significant problem.

But: I think legislation should, almost always, be done by (or at the very least through) the legislature! A process that is very slow and frustrating, I know. And state legislatures are often very bad, which I also know. But the solution to that is to have better legislatures by voting in better legislators—and the other people in the state get to have different opinions about what ‘better’ means in both cases. There may well be a few things that are ‘so important’ that bypassing a stalled legislature is absolutely necessary, but the more often that happens, the more incentive legislators have to stall the legislature, because after all, anything really important can just be passed through an initiative. I believe that unless there is some clear and compelling reason why the legislature should not be involved in passing any particular law, if it can’t pass the legislature it shouldn’t become law some other way, even if it’s a good law.

Having said that—this election was really about preventing a majority-vote amendment preserving reproductive rights. Is that one of the things that should bypass the legislature? My own opinion is that reproductive rights fall in to the category of rights that should be protected against majority rule, and if that isn’t in the state constitution, it probably should be, and I’d vote to put it there. But I dislike the idea that a majority vote in a different year could take it out again.

Tolerabimus quod tolerare debemus,

6 thoughts on “Issues with Ohio

  1. Michael

    “there is little to prevent a majority of Ohio voters from passing an amendment that runs roughshod over the rights of any minority faction”

    Well, there is the US Constitution, which does offer some protections for the rights of minority factions against state impingement on those rights even if that impingement is allowed by the state constitution. A state can offer more protection, but not less.

    The US Constitution is being actively warped by the lunatic majority on the Supreme Court, so the US Constitution itself offers less protection than it used to. That does make improvements to state constitutions a necessary bulwark on a rather emergent basis.

    While I agree that there are theoretical advantages to the legislative process over direct democracy, all we have are very blunt instruments and an excessively tribal politics. In that context, allowing some questions to be resolved by direct democracy may free up the legislature to consider other questions in their own particularly legislative way. When a question is understood well by the population (and I believe that abortion rights are far better understood by the population than by the members of the legislature), and when the population itself wants to remove a particular question from the legislative process (perhaps because the question is orthogonal to the usual political divisions and the legislature is incapable of tackling orthogonal questions rationally due to its population-chosen dysfunction), then I don’t see a drawback.

    More than ever, I see it as tied up in the delegation question (and the absurd major questions doctrine) which could end our federal government. If the legislature is not only the best but the only way to decide questions, then we cannot govern ourselves in any detail. That’s a recipe for corporate control and oligarchy, not a representative democracy.

  2. irilyth

    > And state legislatures are often very bad, which I also know. But the solution to that is to have better legislatures by voting in better legislators—and the other people in the state get to have different opinions about what ‘better’ means in both cases.

    Except that the fascist Republican Party continues to openly acknowledge that staying in power is more important than preserving democracy. “If everyone were allowed to vote, no Republican would ever win another election”, right? (The most recent incident I’m thinking of is Alabama, based on Heather Cox Richardson’s letter from August 10th, which included this:

    > Alabama attorney general Steve Marshall added: “Let’s make it clear, we elect a Legislature to reflect the values of the people that they represent, and I don’t think anybody in this room wanted this Legislature to adopt two districts that were going to guarantee that two Democrats would be elected…. What we believe fully is that we just live in a red state with conservative people, and that’s who the candidates of Alabama want to be able to elect going forward.”

    It doesn’t matter how people actually vote; they “believe fully” that they “live in a red state”, and therefore they must remain in power.)

    1. Chris Cobb

      I agree that gerrymandering, by which state legislators make it impossible for the people of the state to elect a legislature that represents their values and priorities, puts “voting in better legislators” out of reach as a solution that the voting public can exercise without outside assistance–unless their state has a ballot initiative provision that allows a citizen majority to exercise legislative control when legislators try to abuse their power. I’ll note that reporting that I have heard suggests that the citizens of Ohio were nearly as strongly motivated to reject the Constitutional amendment because they viewed it as an inappropriate power grab as they were by the implications of this amendment for the ability of a majority protect the right of women to control their bodies and get appropriate medical care. The people of Ohio certainly seemed fairly zealous, overall, to protect their free exercise of majority rule, which is foundational to democracy.

      Living as I do in a state whose constitution does not allow ballot initiatives and allows unlimited partisan gerrymandering, I can say that the result of this situation is less and less involvement in state politics on the part of citizens in general, as they have no tools with which they can influence the legislative process and no path to undo their disenfranchisement.

      It is true that “there is little to prevent a majority of Ohio voters from passing an amendment that runs roughshod over the rights of any minority faction” (except, as Michael has pointed out, the Federal Constitution), but passing this amendment would have enabled a minority to run roughshod over the rights of the majority, which is plain tyranny. It is an uncomfortable reality that the rights of minorities can only ever be protected under democratic governance by enlightened policy-making by the majority. Fortunately, it is often the case that people who enjoy self-governance recognize the importance of protecting human rights and, enjoying self-governance, feel no need to persecute minorities out of fear. Grievously, that is not universally the case.

      It is universally the case, however, that minority rule can only ever be effected by anti-democratic means and so is unavoidably oppressive in nature, even when managed in what is intended to be an enlightened manner. Representative democracy is terribly vulnerable to manipulations that enable a minority to rule by arranging the electoral processes to prevent the will of the majority from being carried out. Ballot initiatives, while imperfect, offer a key opportunity to counter such manipulation and its effects.

      Ballot initiatives cannot effectively replace the governing function of a legislature (for any political entity larger than a village), but they can provide a valuable mechanism for the will of the majority to be exercised on occasional matters of importance and to disrupt the manipulations of the electoral process that facilitate its capture by minority factions. Ballot initiatives are subject to abuse, but they can’t–as a process–be captured by a faction the way a legislature can, because each ballot initiative has to start at square one to get onto the ballot. They can only be captured by ballot initiative policies that empower voter suppression, which, in a sense, is what the Ohio ballot measure was proposing to do.

      1. Vardibidian Post author

        I also agree that districting , in the current set-up, is one of the areas where the legislature should not be involved, at least directly. I’m not against using an initiative process to improve districting against the will of the state legislature for that reason. And, in general, the legislature should not be able to suppress voting rights, and certainly should not have independent, unappealable sovereignty over them. I am with you that far.

        I do think it’s important to distinguish between minority rule and minority participation—democracy is the rule by all the people, not just the majority. As you say, minority rule is unsustainable without oppression, but it’s clearly important for the government to include minority viewpoints, and often to incorporate them into policy. In fact, initiatives are often a way for an impassioned minority to make policy when the majority is indifferent (or at least not impassioned enough to show up and vote). However, that process should ideally be part of the legislative process, and there should be very high incentives for the legislature not to ignore that process—and I feel that a commonly-used and easily accomplished initiative law lowers those incentives.

        I have lived in states where initiatives and referenda were easy and common, states where they were difficult and rare, and states where they were nonexistent, and, thinking about it, I am not convinced that citizen involvement in self-government was particularly different in any of those. So perhaps I’m overestimating the effect of the incentives at all.


  3. Michael

    Imagine a state in which there are two powerful political parties who are uninterested in compromise. Party A wants to implement Policy A and Policy 1, while Party B wants to implement Policy B (opposite of A) and Policy 2 (opposite of 1). If the people of the state want Policy A and Policy 2, they simply cannot accomplish that by changing which party is in power. A referendum on Policy 1/2 allows the people to choose Policy 2, and then vote for Party A to get Policy A. There’s no straightforward process to get there without a referendum option.

    This also seems true when only Party A has power in the state.

    And it becomes even harder to find candidates/parties that will align with voter interests across multiple issues when there are many issues.

    It seems to me that party power is the biggest underlying problem. Perhaps there are reforms to legislative processes and organizational structures that could reduce the power of the party, but without referendums, how would we even get those? The arc of legislative changes seems to be toward greater power for parties.

    1. Vardibidian Post author

      It seems to me that the people of the state you imagine have very little influence over or even overlap with either of the powerful political Parties—and you say that the problem is the power of those Parties. This is a particular problem when one Party does not seriously compete for control of the legislature, but again the answer here is “get better legislatures”, and the initiative/referendum process does not do that.



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