Republicans on abortion
With more ballot initiatives ready to go before voters, supporters of reproductive rights are hoping to continue their impressive winning streak. But conservatives looking at what just happened in Arkansas are hoping they’ve found a way to stop the bleeding: by using obscure rules favored by election deniers to keep voters from weighing in on reproductive rights in the first place.
Arkansas law now makes abortion a felony unless a patient’s life is at risk. Arkansans for Limited Government was promoting a ballot initiative that would make the procedure legal until 18 weeks, with certain exceptions thereafter. The effort did not attract the support of large national groups because it drew the line relatively early in pregnancy, but the proposal still seemed poised to set a powerful example: If it succeeded, it might have created a blueprint for success in other deeply conservative states. ALG had insisted first that messages centered on reproductive justice or even the health crisis produced by Dobbs might not resonate as well in states that Donald Trump resoundingly won in 2020. Instead, the group had focused on the issue of government overreach and attacked the state’s existing law as too strict, without embracing more copious protections that were part of initiatives endorsed by voters in states like Ohio or Michigan.
Even prior to the effort by ALG, Arkansas Republicans had already moved to make it harder for voters to initiate ballot campaigns, increasing the required number of counties represented for a successful ballot measure from 15 to 50. Now the state Supreme Court may have created a road map for conservatives looking to keep the issue from voters altogether.
In July, ALG submitted more than 100,000 signatures in support of its proposal—well more than what was needed to meet the state threshold, but the secretary of state rejected roughly 14,000 signatures because the group hadn’t simultaneously filed a document certifying the names of paid canvassers and confirming that they had been trained on the relevant election rules. The elevation of this obscure provision means that Arkansas voters won’t have a chance to vote on reproductive rights this November.
Advertisement Advertisement Advertisement AdvertisementIt obviously isn’t new for the GOP to leverage election arcana to further its own causes. Since Trump’s attempts to undo the 2020 election, conservatives on state and local election boards have occasionally delayed certifying election results, pointing to concerns about voter fraud or various technicalities. Georgia’s election board recently passed new rules dictating that election results be certified only after a “reasonable inquiry.” A separate rule required election officials to verify vote totals before certain types of ballots would count. Election watchers fear that these kinds of strategies could be used to undermine faith in the election, sow distrust, or stoke anger or even postelection violence.
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Read MoreConservatives’ use of obscure election laws has now expanded to go after abortion ballot initiatives. Last week, by a vote of 4–3, the Arkansas Supreme Court agreed with the secretary of state’s decision to disqualify more than 10,000 signatures, stressing that Arkansans for Limited Government hadn’t bundled all the requisite information about paid canvassers together at one time.
AdvertisementThe opinion was an odd one. The majority and dissent clashed about what the plain text of the state’s statute required, but the rationale for the majority’s reading—that the secretary needed all the information to be gathered together to make sure the ballot process flowed smoothly—seemed strange given that ALG had already provided the required certification on a rolling basis—and most of it well beforethe secretary had to consider all the signatures presented. Then there was the fact that the secretary decided not to give ALG a grace period to fix any potential mistakes. The dissenting judges noted that the secretary had been far less harsh when dealing with similar issues with paid canvassers when it came to other ballot initiatives. The difference, it seemed, was that this one was about abortion.
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The court’s decision won’t necessarily be the end of efforts to get abortion on the ballot in Arkansas. But the decision does offer a potential strategy for other conservatives who don’t want voters to have a say in abortion rights. This new scheme draws heavily on the GOP’s work around election certification and voting. First, the decision outsources power to torpedo ballot initiatives to obscure election officials or state judges, who rarely lose reelection campaigns. Arkansas, which selects state Supreme Court justices in nonpartisan elections, has seen its court veer to the right after the death of a sitting justice allowed Gov. Sarah Huckabee Sanders to choose a replacement. Incumbent state judges may be comparably hard to hold accountable, even when their rulings are controversial.
AdvertisementSecond, focusing on opaque minutiae—like when paid canvasser certification forms were submitted—may help conservatives tamp down on backlash. That makes it easier for Republicans to play down what really appears to be going on: not an effort to persuade voters to support fetal rights but a campaign to stop voters from deciding altogether. This shift allows Republicans to reframe ballot initiatives not as part of a battle about reproductive health—a fight that the GOP is definitely losing—but as a fight about election integrity and the rule of law. And by focusing on the most arcane election rules, conservatives can hope to make it harder for voters to understand what has happened or to organize in response.
It is possible that abortion opponents would have won a fair vote in Arkansas. Some states remain quite conservative on abortion, especially across the Deep South. But the court’s decision is a reminder that many Republicans are not willing to take the risk of letting voters decide.
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