Earlier this year, Ohio Republicans enacted a law that effectively scrubbed August special elections from the state’s calendar, calling them overly expensive, low turnout endeavors that weren't worth the trouble.
But then, just earlier this month, Ohio state legislative Republicans went ahead and scheduled an August election this year that could make it harder for abortion-rights supporters to amend the state constitution later.
The ballot measure currently up for a vote in August would raise the threshold of support required for future state constitutional amendments to 60%. Currently, just a majority is needed.
And while there's nothing explicitly mentioning abortion, abortion-rights groups contend that they’re designed to make it more difficult for voters to pass a proposed amendment, set to be on the ballot in November, that would enshrine abortion rights in the Ohio Constitution.
It’s an unmistakable contradiction that caught the attention of activists — and now they’re suing to have this August’s special election nixed.
“This election is illegal,” said Dr. Marcela Azevedo, the president and founder of Ohio Physicians for Reproductive Rights, a group that has led efforts supporting the November ballot measure that would legalize abortion. “Based on the decisions made earlier this year, there is no basis for holding this election, other than people’s personal agendas to stop the abortion rights movement from being successful.”
The suit draws heavily on the fact that the newly scheduled August special election would appear to violate statutes, signed into law by Republican Gov. Mike DeWine in January, that eliminated the scheduling of virtually all August special elections.
Supporters of that law — including DeWine and Ohio’s Republican secretary of state, Frank LaRose — had said holding August special elections wasn't worth the tens of millions of dollars in costs.
“These unnecessary off-cycle elections aren’t good for taxpayers, election officials or the civic health of our state. It’s time for them to go,” LaRose, who has said he’s likely to run for U.S. Senate in 2024, testified during legislative hearings late last year.
But earlier this month, Ohio Republicans passed a joint resolution that scheduled an Aug. 8 special election to raise the threshold for future ballot measures and impose higher signature-gathering thresholds to put measures before voters.
“This is essentially a brazen, cynical, power grab,” said Emma Olson Sharkey, counsel at the Elias Law Group, a Democratic-aligned firm that filed the suit challenging this summer’s special election in Ohio. “They’re attempting to change their view of this now, based on the fact that this is now what they want to happen.”
“There’s no way to reconcile these arguments,” added David Fox, a partner at the same firm, which filed the suit on behalf of the “One Person One Vote” organization that is drumming up turnout to vote “no” in the August election.
Raising the threshold for passage of any future constitutional amendments would mark a major shift in Ohio, where a simple majority requirement has been in place since 1912.
Four former Ohio governors, including Republicans John Kasich and Bob Taft, and five former Ohio attorneys general, including Republicans Betty Montgomery and Jim Petro, have said they oppose the measure to raise the threshold.
Republican supporters of the freshly passed measures — which, because were adopted through a joint resolution, didn’t require the governor’s signature — have said they would protect the state constitution from efforts seeking to change it funded by out-of-state “special interests.”
GOP supporters of both the January measure eliminating August special elections and the latest measure scheduling one this summer did not address the contradiction when asked by NBC News.
“While we don’t comment on litigation or potential litigation, under Ohio’s constitution, the general assembly has the sole authority to set the time, place and manner for an election,” LaRose spokesperson Rob Nichols said in a statement. “We are fully confident that the election professionals who run our county boards of elections will faithfully deliver another secure, accessible and accurate election for Ohio voters.”
State Rep. Brian Stewart, who sponsored the latest joint resolution but who also supported the January bill, said in a statement that there was no contradiction. He attributed his support for the January bill to concerns over cost and turnout for smaller, local elections in August.
“That concern does not exist in the context of a statewide election, which will be in every community in Ohio,” Stewart said.
DeWine, for his part, has said he supports raising the threshold required to amend the state constitution, though his spokesperson noted to NBC News that the measure scheduling an August election was passed without needing the governor’s signature.
“The Ohio General Assembly generally has the power to set the dates of elections under the Ohio Constitution. Both the elections bill and this separate resolution can be seen as the Ohio General Assembly exercising that power. Our office was not a party to the resolution,” DeWine spokesperson Dan Tierney said in a statement.
Meanwhile, the suit (as well as another filed by the Elias Law Group alleging that the language on the ballot for the Aug. 8 election was designed to intentionally mislead voters), has been granted an expedited process by the Ohio Supreme Court.
The Ohio Supreme Court — on which conservatives hold a 4-3 advantage — is expected to decide on the matter quickly.
If the August election is carried out as scheduled and voters pass the threshold measure, then the proposed amendment in November to enshrine abortion rights would need 60% of voters to pass. If it fails in August, it would need just a majority.
The proposed November amendment is designed to counteract Ohio’s “heartbeat bill,” which snapped into place immediately after the Supreme Court overturned Roe v. Wade last summer. That law effectively bans most abortions — but includes exceptions for the health of the pregnant woman and in cases of ectopic pregnancies — though it remains temporarily blocked by a state judge.
Pro-abortion rights groups, however, aren’t holding their breath for a favorable ruling from the state's high court and are continuing their organizing on a “vote no” effort for the August ballot.
“Do I think that the [state] Supreme Court should strike it down as illegal? Absolutely. I think that would be the right thing to do,” said Azevedo. “But I am not confident that they will.”
“So we have to be ready to fully support ‘vote no’ in August,” she said.