When Arizona voters page through an informational pamphlet describing the ballot measures they will decide in November’s election, they will read that a proposed constitutional amendment to guarantee the right to an abortion would apply to an “unborn human being,” rather than a fetus or embryo.
In Ohio, voters will be asked whether to shift the power to redraw political boundaries from a Republican-controlled committee to a citizen-led commission. The summary that appears on their ballot will read that the citizen-led commission, meant to curb the influence of politics in redistricting, will be “required to gerrymander” district lines.
And in Florida, voters deciding whether to guarantee abortion rights in the state constitution will see a lengthy fiscal impact statement that says the proposed amendment “would result in significantly more abortions and fewer live births.”
In states where some of the most politically explosive questions will be decided in this year’s elections, Republican elected officials are taking new steps to frame those questions on their terms. They have turned to little-known agencies, and to the courts that tilt heavily in their favor, to insert language that in some cases stands diametrically opposed to what supporters of those ballot measures are seeking to achieve.
“This is a tactic they’ve used in the past, but they’re using it much more aggressively than I’ve seen it in recent years,” said Emma Olson Sharkey, an election lawyer who specializes in ballot measures at the Elias Law Group, a Democratic firm. “Those in power have become increasingly hostile to ballot measures, full stop.”
Sharkey is leading a lawsuit against the Ohio Ballot Board, the body within the secretary of state’s office that certifies ballot language for proposed amendments and initiatives every year. The lawsuit seeks to overturn the language that will describe Issue 1, the proposed constitutional amendment to establish a citizen commission to redraw political boundaries.
The ballot board earlier this month voted along party lines to adopt language proposed by Secretary of State Frank LaRose (R), which says the amendment would “repeal constitutional protections against gerrymandering approved by nearly three-quarters of Ohio electors.”
“Listen, when the voters of Ohio have created a supermajority of Republicans in the House and a supermajority of Republicans in the Senate, and they’ve given every statewide office to Republicans, I think they’re telling us something,” LaRose said on a conservative podcast after the ballot board approved his language. “I think they’re telling us they prefer conservative public policy and they prefer us to operate in that manner.”
Supporters of the redistricting reform proposal were outraged.
“I’ve never seen ballot language this dishonest and so blatantly illegal,” Don McTigue, a lawyer representing Citizens Not Politicians, the group behind the redistricting reform amendment, said in a statement. “It’s insulting to voters, and I’m embarrassed for the Secretary of State.”
In Arizona, the state Supreme Court, made up of seven Republican appointees, ruled in favor of Republican lawmakers who drafted language in a pamphlet that will be sent to voters alongside absentee ballots. The ruling overturned a lower court’s decision that referring to a fetus or embryo as an “unborn human being” violated state law that requires ballot language to be impartial.
Athena Salman, a former state representative who now runs the campaign in favor of the abortion rights amendment, called the decision “beyond disgraceful.”
Similarly in Florida, the state Supreme Court ruled against supporters of the proposed abortion rights amendment over language describing the fiscal impact of their measure. The Fiscal Impact Estimating Conference approved the language at the urging of Senate President Kathleen Passidomo (R) and House Speaker Paul Renner (R), both opponents of abortion rights .
The new language raises “uncertainty about whether the amendment will require the state to subsidize abortions with public funds” and highlights “additional costs to the state government and state courts that will negatively impact the state budget. An increase in abortions may negatively affect the growth of state and local revenues over time.”
“They’re trying to cause confusion and hide the real issue: Amendment 4 is about ending Florida’s extreme abortion ban which outlaws abortion before many women even realize they are pregnant,” Lauren Brenzel, campaigns director for the pro-abortion rights amendment, said in a statement.
Not every conservative effort to influence ballot language has succeeded. In Montana, the state Supreme Court rejected ballot language drafted by Attorney General Austin Knudsen (R) that would have raised questions about the legal and medical definitions of fetal viability. The Missouri Supreme Court ruled last year against language proposed by Secretary of State Jay Ashcroft (R), who wanted to ask voters whether they were in favor of allowing “dangerous and unregulated abortions until live birth.”
And not every effort to put a thumb on the scales comes from conservatives: In Washington State, conservatives seeking to repeal a new capital gains tax through a ballot measure objected to a fiscal impact statement submitted by Attorney General Bob Ferguson (D).
Ferguson’s fiscal impact statement, allowed under a 2022 law passed by the Democratic-controlled legislature, says repealing the capital gains tax measure would reduce funding for K-12 education, child care and school construction.
Tim Eyman, a conservative anti-tax crusader who backs the repeal, called Ferguson’s language “sabotage sentences.”
Ballot measure experts said attempting to influence elections through leading language is a tactic opponents have long used, but that those efforts have expanded in recent years as progressives qualify ballot measures to codify policy that conservative legislatures oppose.
“The ballot language has been for decades a real battleground,” said Mark Brewer, a former Michigan Democratic Party chairman who has litigated on behalf of progressive legislation. “A lot of times, the only thing voters see is that ballot language.”
Because contentious ballot measures often seek to change laws in ways that legislative majorities oppose, those who have the final say over how those measures are worded are typically representative of those already in power — Republicans on the Ohio Ballot Board and the Arizona and Florida Supreme Courts, and the Democratic attorney general of Washington.
“Ultimately this is a question about power and who gets a say in what our democracy looks like and what our future looks like,” said Chris Melody Fields Figueredo, who heads the progressive Ballot Initiative Strategy Center. “They’re making something not only partisan, but they cannot win fairly with the rules as they are, and so they’re changing the rules.”
This post has been updated to correct the spelling of Chris Melody Fields Figueredo’s name.