States break out new tactics to thwart abortion ballot measures

Former President Donald Trump and much of the GOP insist abortion be left to “the will of the people” at the state level. Anti-abortion groups and Republican state officials are working to make sure that doesn’t happen.

In nearly every state where the question of abortion rights could be put to a popular vote this November, conservatives are deploying several strategies — from suing to have signatures thrown out in Montana and South Dakota to refusing to count signatures in Arkansas — as they attempt to block ballot initiatives that would restore or expand access to the procedure.

The aggressive moves underscore the challenging position anti-abortion activists face more than two years after the Supreme Court struck down Roe v. Wade. They have suffered a string of losses in red and purple states — including Kansas, Kentucky, Michigan and Ohio — that voted decisively in favor of abortion rights. Now, in an effort to blunt one of progressives’ most effective post- Roe tools, Republican officials and anti-abortion groups are filing a new wave of lawsuits just ahead of summer deadlines for counting and verifying signatures in Arizona, Arkansas, Florida, Montana and South Dakota.

As these legal and bureaucratic battles play out, Republican candidates from Trump on down the ticket are maintaining a careful silence on abortion. And when the issue does arise, most stick to the position recently enshrined in the party platform: that the GOP should “protect and defend a vote of the people, from within the states, on the issue of life."

Yet many conservatives seeking to block the ballot measures argue that voters should not be allowed to weigh in directly on when and whether people can terminate a pregnancy.

“We are working to make sure it doesn't get on the ballot in the first place,” said Jill Norgaard, a board member of Arizona Right to Life and former Republican member of the Arizona House of Representatives. “When you enshrine something in the state constitution, it ties the hands of future legislators. If this is in the constitution, there's no way to back it out. It's literally stuck.”

Abortion-rights supporters caution that even if they manage to fend off every one of these challenges — far from certain given the conservative leaning of many state courts — the legal fights are draining their campaigns of time and resources they could be spending on persuading fence-sitters and getting out the vote.

“It is an unfortunate distraction,” said Toni Webb, the deputy director of ballot initiatives for the ACLU. “Campaigns are now having to pay for lawyers and deal with litigation. And it also creates uncertainty and confusion in voters’ minds when they see all of this.”

‘Unborn human being’ vs. ‘fetus’ in Arizona

Multiple legal fights have dogged an Arizona ballot measure that would override the state’s 15-week abortion ban.

Arizona Right to Life sued last week to disqualify the proposed amendment, claiming a litany of errors and infractions by the progressive groups spearheading the initiative.

“We saw blanks on the back of the circulator sheets. We saw bleed-through with notaries. We saw incomplete papers. We saw signatures that have obviously been forged,” Norgaard said, adding that they will also argue voters were tricked into signing. “The circulators were obtaining signatures by telling people that it's about women's rights.”

Arizona for Abortion Access dismissed these claims as “bogus” and called the suit one of many “deceptive attempts to silence the will of more than 820,000 Arizona voters.”

Arizona Right to Life withdrew part of its challenge on Tuesday, dropping one count alleging rule violations by signature-gatherers but still continuing to assert that the ballot measure itself is "inherently misleading" and creates "a significant danger of confusion" for voters.

At the same time, the abortion-rights campaign is suing the state over voter guide language drafted by a GOP-dominated panel of state lawmakers that said the amendment would allow the abortion of an “unborn human being."

In a hearing last week before Maricopa County Superior Court Judge Christopher Whitten, attorneys for the abortion-rights group argued that phrasing is medically inaccurate and violates laws requiring a neutral description.

“The analysis they finalized is not impartial,” said Austin Yost, an attorney for Arizona for Abortion Access. “The analysis should include ‘fetus’ as the word that meets that statutory requirement.”

Kory Langhofer, representing the GOP lawmakers, defended the language, arguing that “it’s more appropriate to use a colloquial term like ‘unborn human being’ than a medical term like fetus” because that’s how “voters discuss their lives and pregnancies.”

The court ruled for Arizona for Abortion Access on Friday, calling the state panel’s wording “packed with emotion and partisan meaning,” but the GOP officials have vowed to appeal to the state Supreme Court.

‘Inactive’ voters in Montana

GOP officials in Montana are asking a state court to throw out the signatures of “inactive” voters who are legally registered but did not cast a ballot in recent elections — the latest attempt by conservatives to block a November vote on enshrining abortion rights in the state’s constitution.

Following a hearing in Helena on Friday, 1st District Court Judge Mike Menahan issued a preliminary injunction forcing the state to count signatures from voters deemed inactive, which he said could make or break the abortion-rights measure’s chances of getting on the ballot because they make up as much as 20 percent of the total.

Menahan, a former Democratic state legislator, wrote in his ruling that he was disturbed that the state appeared to change its rules in the middle of the process, without adequately informing the ballot measure campaigns, threatening Montanans’ “fundamental right to vote and participate in the petition process.”

More lawsuits are expected ahead of the state’s Aug. 22 certification deadline for ballot measures.

Paperwork problems in Arkansas

A long-shot bid by the group Arkansans for Limited Government to restore some abortion access got a surprise win from the state’s Supreme Court last week, when the justices ordered the secretary of state to continue counting and verifying the more than 100,000 signatures the group submitted earlier this month.

GOP officials in the state had halted their count and moved to block certification of the proposed amendment based on an alleged paperwork error — arguing that the group had failed to submit a cover sheet listing their paid canvassers. While the vast majority of the signatures were gathered by volunteers, abortion-rights activists relied on paid canvassers to collect enough signatures to put the measure over the top. The state now has to count the signatures submitted by volunteers while legal challenges continue over those collected by hired hands.

Arkansas’ Republican Attorney General Tim Griffin said last week that he’s confident the amendment will ultimately be disqualified over the improper submission of the signatures gathered by Arkansans for Limited Government’s paid canvassers, which he called “a failure for which they only have themselves to blame.”

The abortion-rights campaign is entering the next phase of the fight at a disadvantage. Leading national groups that are backing ballot initiatives in other states — including Planned Parenthood, Reproductive Freedom for All and the ACLU — have declined to support Arkansas’ initiative because it would allow abortion only up to 20 weeks, rather than the 22 to 24 weeks that was the standard under Roe v. Wade . Abortion is banned in Arkansas at any stage of pregnancy.

“The deck has been stacked against us,” said Gennie Diaz, executive director of the advocacy group For AR People, which is backing the ballot initiative. “Nobody's come knocking on our door to say, ‘We want to help with legal fees.’ So we're continuing our grassroots fundraising effort, just like we did with signature collection.”

While the signature count resumes, For AR People is bracing for more challenges and waiting to see whether courts grant the group a “cure period” — extra time to collect enough valid signatures to make up for any disqualified by errors.

A budget battle in Florida

Florida’s abortion-rights initiative qualified for the November ballot in April after supporters gathered nearly a million signatures and overcame a challenge from the GOP state attorney general, who claimed voters who signed a petition for the measure were confused and misled.

Now, the usually routine step of calculating how much passage of the amendment would cost the state has become a legal battleground .

In May, the ACLU sued Florida after the state’s six-week abortion ban took effect, arguing that the ban’s enactment required a new financial impact analysis. After a court agreed, Republican state officials picked by Gov. Ron DeSantis and GOP Statehouse leaders drafted new language to appear next to the amendment on the ballot.

The financial statement, which did not give a dollar figure for the initiative’s cost to taxpayers, arguing that its passage would result in “fewer live births per year,” which would “negatively affect the growth of state and local revenues over time.” It also included speculation it would trigger expensive litigation over whether the state’s Medicaid program must pay for abortions — prompting outcry from the groups promoting the measure.

“These are anti-abortion talking points that have nothing to do with the financial impact of the measure,” said the ACLU’s Webb, who is working with Floridians Protecting Freedom to challenge the state’s latest move. “From our perspective, this is just one more dirty trick to try to prevent this thing from going in front of voters in a fair and balanced way.”

Last week, the state’s 1st U.S. District Court of Appeals declined to hear the ACLU suit, saying it was moot because of the state panel’s revisions. But the judges noted that Floridians Protecting Freedom could bring a new challenge over the language. The group did so — promising “to vindicate its legal right to a clear and unambiguous presentation of its amendment on the ballot.” The Florida Supreme Court has ordered the state to respond by 5 p.m. on Friday.

Regardless of the outcome of the language fight, the ballot initiative still faces an uphill battle. Florida requires ballot measures to win at least 60 percent of the vote — a bar successful abortion-rights measures in other states have failed to clear since the fall of Roe v. Wade .

Residency challenges in South Dakota

South Dakota’s abortion-rights ballot measure overcame many hurdles before GOP Secretary of State Monae Johnson certified more than 50,000 signatures in May, but the fight is far from over.

Like Arkansas’ measure, the campaign has no backing from national abortion-rights groups because it would restore narrower access than Roe . The GOP-controlled state Legislature also passed a law in March allowing people to withdraw their signatures from the petition, and conservative activists blanketed the state with robocalls in May urging signers to do so. The secretary of state issued a rare public rebuke of that effort, warning that “scammers” were impersonating government officials in her office and “eroding public trust in the election process.”

Then, in June, the anti-abortion group Life Defense Fund sued Dakotans for Health, the sponsor of the abortion-rights ballot initiative, claiming that the group misled people when gathering signatures and failed to prove that all of its canvassers were South Dakota residents. A state judge dismissed that lawsuit earlier in July, but abortion opponents appealed to the state’s Supreme Court, which will decide whether the measure can remain on the ballot.

“They have thrown everything they could dream up to stop the people of South Dakota from voting on this matter,” said Adam Weiland, the co-founder of Dakotans for Health. “Voters, rather than politicians, [should] determine the extent of their reproductive health care freedoms.”