Not just Ohio: Biased language is the hot new tactic to thwart ballot measures

Editor’s note: A previous version of this story misstated the progress of litigation over ballot language for a proposal to change Idaho’s primary election process.

Abortion-rights supporters filed a lawsuit Monday against what they call “deceptive” ballot language produced by Ohio officials for the state’s closely-watched upcoming referendum on the issue.

But it isn’t just the Buckeye State that’s lately seeing fierce battles over the once-obscure topic of ballot language.

In recent weeks, officials in Missouri — where another abortion-rights measure is at issue — and Idaho also have been accused in lawsuits of seeking to thwart citizen initiatives they oppose by using biased and negative ballot language to describe the issue to voters. Arkansas last year saw a similar court fight after a state board rejected a proposed ballot measure that had gained the required number of signatures, claiming the ballot language didn’t explain the issue in enough detail.

Direct democracy advocates see these language disputes as another tactic in the larger war on ballot initiatives playing out across the country. As States Newsroom has reported, in recent years a slew of states has tried to crack down on ballot measures by imposing more onerous signature requirements or raising the threshold for voter approval above a simple majority, among other steps. It’s no coincidence that in all four of the states where controversies over ballot language have flared most prominently, Republican lawmakers have tried other tacks — so far unsuccessfully — to restrict ballot measures more broadly.

Even if misleading ballot language ultimately gets thrown out by the courts, advocates say, these fights can raise the costs of bringing initiatives by requiring supporters to engage in lengthy litigation. And in some states, including Arkansas, signature-gathering can’t start until ballot language is approved — meaning delays caused by fights over language can eat into the limited timeframe that organizers have to get the necessary signatures.

“This has been an escalating effort to attack ballot titles,” said Sarah Walker, director of legal and policy advocacy at the Ballot Initiative Strategy Center, which provides support for progressive ballot measures. “It’s just more of a long trajectory of efforts to undermine the will of the voters. And it shows how far politicians who are out of step with voters are willing to go to consolidate their power.”

The claims of biased language also raise questions about the role of secretaries of state and other state officials in administering the ballot measure process. Though they may support or oppose ballot measures, there has long been an expectation that state election officials must perform their duties fairly and impartially — just as they’re expected to do when running conventional elections involving candidates.

But in the current hyper-partisan political climate, that expectation may be breaking down, leaving good-government advocates concerned.

“A politicized, partisan secretary of state can completely distort public understanding of a ballot question through their control of the summary language,” said Kevin Johnson, executive director of Election Reformers Network, which backs reforms aimed at removing partisanship from election administration (Disclosure: This reporter worked for several months in 2022 as a communications consultant for ERN). “We would never accept a referee playing for one team in sports and we shouldn’t in elections either.”

Johnson pointed to Missouri, where Secretary of State Jay Ashcroft, a Republican who opposes abortion rights, last month approved a ballot title that asks voters if they want to protect “dangerous, unregulated, and unrestricted abortions, from contraception to live birth.” The title also asks voters if they want to “nullify longstanding Missouri law protecting the right to life.”

A lawsuit filed by Missouri’s ACLU chapter seeks to require Ashcroft, who is running for the GOP nomination for governor, to use more neutral wording.

The skewed language came after Republican-authored legislation that would have required ballot initiatives to gain 57% approval, rather than a simple majority, unexpectedly died in the state Senate in May, after passing the House. Lawmakers have pledged to try again next year, saying the goal is to thwart the abortion-rights measure.

A proposed constitutional amendment, for which a petition was filed recently with the state by a grassroots organizing group, aims to protect Missouri’s ballot initiative process. Among other steps, it would ensure that ballot titles “express the true intent and meaning” of the measure at issue.

Events in Ohio have followed a strikingly similar pattern. First, lawmakers drafted a ballot measure, Issue One, that aimed to make it harder to use ballot initiatives to amend the state constitution by requiring 60% voter approval, among other steps. Secretary of State Frank LaRose, who is running in a competitive Republican primary for the U.S. Senate nomination, told fellow GOPers the change was needed to stop a proposed amendment protecting abortion rights.

In his official role, LaRose approved ballot language for Issue One that said the measure would “elevate the standards” for constitutional amendments — wording that Issue One opponents called overly positive.

After voters overwhelmingly rejected Issue One earlier this month, Republicans tried another approach to stop the abortion-rights measure, which voters will decide in November.

On a 3-2 party-line vote, the state Ballot Board, which is chaired by LaRose, approved a ballot summary drafted by his office which uses the term “unborn child” in place of the more medically accurate “fetus.” The summary also tells voters that the amendment would “always allow an unborn child to be aborted” if a doctor decides it’s medically necessary. The actual language of the amendment would bar such an abortion unless the patient agrees to it.

At the meeting to vote on the language, one Republican board member called the abortion-rights amendment “dangerous” and pledged to fight “tirelessly” against it.

“The Ballot Board’s members adopted politicized, distorted language for the amendment, exploiting their authority in a last ditch effort to deceive and confuse Ohio voters ahead of the November vote on reproductive freedom,” Lauren Blauvelt of Ohioans United for Reproductive Rights said in a statement.

In Idaho, it’s not abortion rights at issue. But the larger contours of the dispute are familiar.

Organizers of a proposed ballot initiative to create open primaries sued Attorney General Raúl Labrador over the ballot title his office produced. The title told voters that the measure would “replace voter selection of party nominees with nonparty blanket primary.”

In fact, supporters of the initiative said, voters would still choose nominees. But instead of having closed primaries in which only members of the major parties can vote, everyone would get to vote and the top four finishers, regardless of party, would advance to the general election.

Labrador, a Republican, hasn’t sought to hide his opposition to the measure. “Let’s defeat these bad ideas coming from liberal outside groups,” he tweeted in May.

After being ordered to do so by the Idaho Supreme Court, Labrador submitted new titles that were then certified by the court, but the delay caused by litigation could prove fatal to the measure’s chances, supporters say.

“[I]t shortens the already limited time to circulate the initiative petition for signatures,” they wrote in court filings. “This delay alone may doom the possibility of the initiative reaching the ballot.”

Idaho’s legislature has for years sought to restrict ballot measures. In March, a resolution that would have imposed stiffer signature-gathering requirements for ballot initiatives passed the state House by 39-31 but failed to win the two-thirds majority needed to go to voters. In 2021, Idaho’s Supreme Court struck down a similar measure passed by lawmakers.

In Arkansas, things played out a bit differently. Last year, the State Board of Election Commissioners rejected a ballot measure to legalize recreational marijuana, saying that the ballot language didn’t adequately explain the proposal. For instance, they said the measure didn’t tell voters that it would repeal the state’s limit, under its medical marijuana law, on how much THC is allowed in edible marijuana.

A lawyer for the coalition backing the measure said that level of detail “simply is not workable for a ballot.”

After a legal challenge, the measure was approved for the ballot, but it was rejected by voters.

Arkansas voters also rejected an effort by lawmakers to make ballot measures harder to pass. Like Ohio’s Issue One, it would have required a 60% threshold for approval.

State officials who have tried to use misleading language to boost their side have more often lately been looking to defeat, rather than help, a ballot initiative. But the same scheme is sometimes used to boost a measure’s chances.

Language written by Republican lawmakers in Kansas for last year’s high-profile effort to ban abortion in the state said the measure would “reserve to the people the right to regulate abortion.” It also said the measure would “affirm there is no constitutional right to abortion or to require the government funding of abortion.”

In fact, the state Supreme Court had previously found that there is a right to abortion, meaning the measure would have taken it away. And government funding of abortion was already illegal.

“The language was very misleading,” said Rachel Sweet, an abortion-rights advocate who played a key role in the successful campaign to defeat the Kansas measure. “We really had to clearly define for people what that amendment was actually trying to do.”

There is some evidence that how a ballot measure is worded can affect the level of support it receives. A 2021 study found that people were almost twice as likely to back a hypothetical tax increase to fund education when it was described as an additional “one cent per dollar,” compared to when it was described as “a 22 percent increase.”

“As a general matter,” wrote the study’s author, University of Georgia political scientist Ted Rossier, “state institutions that are responsible for writing ballot questions, as well as the courts that hear challenges thereto, must remain mindful of the potential for nefarious manipulation of the process.”