Published October 2, 2022
Republicans expect to regain control of the House, and maybe even the Senate in next week’s midterm elections. But a slate of ballot initiatives could prove to be a stark reminder of the limits of running against an unpopular president – and force conservatives to grapple with a new political reality in a post-Roe era.
Voters in nearly three quarters of the states are faced with a variety of ballot initiatives, ranging from questions on rainy day funds to hot-button cultural issues this year. And the most consequential questions relate to abortion.
Two high profile and controversial state initiatives are abortion-related ballot measures in California and Michigan. A third is in Vermont – an amendment that would modify the state constitution to recognize “an individual’s right to personal reproductive autonomy.” While proponents often bill these proposals as simply reverting back to the standard under Roe they would, in practice, go much further.
California’s proposed amendment would make choosing abortion a “fundamental right,” opening the door to abortions past the point of fetal viability and, opponents predict, hamstring any future efforts to restrict abortions later in pregnancy or go after unqualified providers that leave women vulnerable to substandard care.
Michigan’s proposed constitutional amendment would allow abortions to be restricted after fetal viability. But opponents have argued that the text’s explicit right to abortion for minors would likely nullify the state’s parental consent law and make Michigan’s abortion regime one of the most permissive in the country.
And, in Vermont, opponents worry that the amendment’s has wide-ranging implications for matters like parental consent in gender-reassignment surgery for minors and the ability of health care professionals to decline to participate in procedures that violate their religious beliefs.
Two red states are taking abortion-related matters to their voters as well. Kentucky’s proposed amendment would make clear that the state Constitution would not “secure or protect a right to abortion or require the funding of abortion.” And in Montana, an initiative would require full medical care for babies born alive because of an attempted abortion.
The polling suggests that the side supporting abortion rights is favored in many of these debates, especially in deep-blue California and Vermont. A bipartisan anti-abortion coalition in California continues to raise alarm bells, and opponents of the Michigan amendment hope they can close the wide gap shown in some recent polls.
But as Kansas’ resounding defeat of a state referendum that would have banned abortion showed, even red-leaning states can vote against pro-life initiatives.
If the polling holds, it should inform Republicans’ strategy on social issues going forward – candidates who are pro-life can win, and many will, but pro-life ballot initiatives, facing the headwinds of an unsympathetic media environment, face a heavy lift.
Without crystal-clear carveouts for pregnancies that are ectopic or that pose a direct threat to for the life of the mother and robust support for the health care and material needs of pregnant mothers, standalone anti-abortion legislation will struggle at the ballot box. Pro-life conservatives should proceed accordingly, emphasizing a legislative strategy and adopting an all-of-the-above approach to support women facing unplanned pregnancies.
Beyond the issue of abortion, other initiatives on this year’s ballot have the potential to shape daily life in a number of states. Alabama will vote on whether to allow the state to use federal funds to expand broadband access to rural areas. New Mexico would use proceeds from its state oil and gas fund to pay for early childhood programs, and Colorado would increase taxes on higher-income households to pay for universal school lunches. South Dakota will vote on whether to join the other states that have expanded Medicaid coverage. Nevada and Nebraska will consider increasing the minimum wage.
None of those states are out of reach for Republican politicians, but it should not surprise conservative activists if many of these measures pass. Too many voters have the sense that politicians forget about them in between elections; 68% of respondents told a New York Times-Siena poll that “the government mainly works to benefit powerful elites.” A ballot amendment is one way voters can feel like their voices are being heard. One of the biggest lessons of the Trump era is that the dominant attitude of the Tea Party, that which saw the government that governed best as being the one that governed least, is no longer operative.
Other progressive-headed referenda are a little more woolly-headed. Oregon’s proposed amendment would declare “affordable health care as a fundamental right,” a promise no state government can keep without endless increases in taxes. In addition to its extreme abortion amendment, California proposes a new tax on multi-millionaires to pay for climate initiatives, and not one but two proposals on expanding in-person and online gambling.
Colorado will vote on whether to decriminalize psychedelic drugs for medical use. Opponents are right to worry that, regardless of the intended safeguards, legalization will eventually lead to a cultural normalization of these drugs could lead to more usage across the population, in the same way that legalizing marijuana for medical purposes apparently led to higher rates of illicit usage.
And there are other ballot measures that are not a productive use of resources. Some conservatives in Alaska, Missouri and New Hampshire are supporting measures to hold a state constitutional convention, a process that could cause more heartburn than positive outcomes. Arizona and Nebraska are contemplating anti-voter fraud measures.
Safe elections are a good thing, but it is not a good sign for the long-term health of conservative principles that many of the most prominent proponents of voter ID laws, like Arizona gubernatorial candidate Kari Lake, have tended to spend more time on a narrative grounded in baseless claims of a stolen election than on more meaningful conservative legislation.
In our era of nationalized politics, state referenda are a welcome reminder of the importance of a federalist system. Save for the authority expressly delegated to the federal government, states retain general police power to shape the health, well-being and general welfare of their citizens. Letting states experiment with different approaches to the minimum wage, taxes, and health care is part of what makes America great.
And for conservative politicians, this year’s crop of state referenda offers cautionary, but useful, insights. Retaking the House, and maybe the Senate, will be treated a win. But if the progressive-leaning state amendments are passed by voters, it will be a reminder that conservatives must adjust their political strategy from simply playing the role of dedicated opposition. Picking which battles are worth fighting, and supporting policies that could make life better for voters, could pave the way for passing other priorities conservatives care about.
Patrick T. Brown is a fellow at the Ethics and Public Policy Center, where his work with the Life and Family Initiative focuses on developing a robust pro-family economic agenda and supporting families as the cornerstone of a healthy and flourishing society.