Why Abortion Rights Referendums Might not Save Joe Biden in 2024

An analysis of the partisan impact of an Abortion Rights Referendum in California's 2022 Midterm Elections

Since the Dobbs decision, state referendums on abortion have all been won by the pro-choice side. Efforts to restrict abortion rights in state constitutions have all failed at the ballot box, while efforts to add abortion protections into state constitutions at the ballot box have all passed. Most recently, a ballot measure to add abortion as a constitutional right to the Ohio State Constitution passed by double digit margins.

Although Democrats were expected to suffer blow out election losses in the 2022 midterms, the unpopularity of the Dobbs decision and pro-choice voters who reject the pro-life position of the Republican Party helped the Democrats win key races and minimize their losses (even gaining a seat in the Senate).¹

Seeing this success, Democrats are now attempting to put abortion referendums on the ballot in several key swing states, including Arizona, Pennsylvania, Florida, and Nevada.² The thought process is that with the popularity of abortion rights, voters voting in favor will vote for Joe Biden.

The unquestioned political wisdom is that being on the winning side of a ballot measure on a controversial issue is helpful because voters who vote in favor of that ballot measure will vote for candidates who support it and vote against candidates who oppose it. Additionally, it is thought to bring out voters who might otherwise stay home, who will then favor candidates of the party supporting that ballot measure.

I’m not sure that this commonly held wisdom is correct. There have been a number of hot button issues (affirmative action, minimum wage increases, and same-sex marriage) where voters voted in favor of a ballot measure while electing candidates who opposed those ballot measures. If ballot measures boosted turnout of progressive or conservative voters, that increased turnout was insufficient.

On the issue of abortion rights, the 2022 election results in California demonstrate that abortion rights ballot measures are not a magic bullet for strategically helping Democrats win elections.

After the initial leak of the draft opinion in the Dobbs decision in March 2022, Democratic leaders in California fell over themselves to put an abortion rights initiative on the ballot (even though abortion rights were already protected by the state constitution which provided greater protections than guaranteed under Roe v. Wade).³

In this mad stampede rush, they drafted a constitutional amendment (SCA 10) that (1) potentially weakened pre-existing abortion rights⁴ and (2) omitted key language allowing for a viability standard, giving ammunition to pro-life activists and leaving many elected Democrats left looking like deer caught in the headlights when asked about whether the abortion amendment would end the viability law for abortions.

Nevertheless, the Democrats moved full steam ahead. The State Legislature voted to have the ballot measure renumbered as Proposition 1, just so that voters would see the measure first on the ballot. Deemed a power move, this was thought to further help the Democrats in the midterms.

In 2022, many of the contested Congressional battleground seats that determined control of the United States House of Representatives were in California.

Those contested seats were: CA-3, CA-9, CA-13, CA-21, CA-22, CA-27, CA-40, CA-41, CA-45, CA-47, CA-49.

Democrats prevailed in CA-9, CA-21, CA-47, and CA-49.⁵

Republicans prevailed in CA-3, CA-13, CA-22, CA-27, CA-40, CA-41, and CA-45.

Not only did Proposition 1 pass with 67% of the vote statewide, Proposition 1 passed in every single battleground Congressional district.⁶ For good measure, Proposition 1 also passed in CA-1 and CA-5, both of which were safe Republican seats.

Viewing the results district by district is instructive. Due to the top two system, we can easily compare results because voters only had two choices in the Congressional race and two choices for the ballot measure question.

(Incumbents seeking re-election are denoted by *).

California’s 1st Congressional District (Rural Northern California)

Doug LaMalfa* (Republican): 62.1% (152,839 votes)
Max Steiner (Democrat): 37.9% (93,386 votes)

Yes on Proposition 1: 50.3% (121,498 votes)
No on Proposition 1: 49.7% (120,005 votes)

Democratic Underperformance Relative to Proposition 1: 12.4% (28,112 votes)

California’s Third Congressional District (Rural Northern California, Rural Eastern California, and Sacramento Exurbs):

Kevin Kiley (Republican): 53.6% (181,438 votes)
Kermit Jones (Democrat): 46.4% (156,761 votes)

Yes on Proposition 1: 57.9% (190,963 votes)
No on Proposition 1: 42.1% (138,974 votes)

Democratic Underperformance Relative to Proposition 1: 11.5% (34,202 votes)

California’s Fifth Congressional District (Sierra Nevada Mountains and Foothills)

Tom McClintock* (Republican): 61.3% (173,524 votes)
Michael Barkley (Democrat): 38.7% (109,506 votes)

Yes on Proposition 1: 50.6% (141,916 votes)
No on Proposition 1: 49.4% (139,656 votes)

Democratic Underperformance Relative to Proposition 1: 11.9% (32,410 votes)

California’s 9th Congressional District (Central Valley - Stockton and Contra Costa County)

Tom Patti (Republican): 45.2% (78,802 votes)
Josh Harder* (Democrat): 54.8% (95598 votes)

Yes on Proposition 1: 58% (99,644 votes)
No on Proposition 1: 42% (72,211 votes)

Democratic Underperformance Relative to Proposition 1: 3.2% (4,046 votes)

California’s 13th Congressional District (Central Valley - Ceres and Modesto)

John Duarte (Republican): 50.2% (67,060 votes)
Adam Gray (Democrat): 49.8% (66,496 votes)

Yes on Proposition 1: 52.9% (70,438 votes)
No on Proposition 1: 47.1% (62,607 votes)

Democratic Underperformance Relative to Proposition 1: 3.1% (3,942 votes)

California’s 21st Congressional District (Central Valley - Fresno)

Michael Maher (Republican): 45.8% (57,573 votes)
Jim Costa* (Democrat): 54.2% (68,074 votes)

Yes on Proposition 1: 56.5% (70,056 votes)
No on Proposition 1: No: 43.5% (53,957 votes)

Democratic Underperformance Relative to Proposition 1: 2.3% (1,982 votes)

California’s 22nd Congressional District (Central Valley - Tulare County, Kings County, Eastern Bakersfield)

David Valadao* (Republican): 51.5% (52,994 votes)
Rudy Salas (Democrat): 48.5% (49,862 votes)

Yes on Proposition 1: 53.9% (55,652 votes)
No on Proposition 1: 46.1% (47,640 votes)

Democratic Underperformance Relative to Proposition 1: 5.4% (5,790 votes)

California’s 27th Congressional District (Northern Los Angeles County - Santa Clarita Valley and Antelope Valley)

Mike Garcia* (Republican): 53.2% (104,624 votes)
Christy Smith (Democrat): 46.8% (91,892 votes)

Yes on Proposition 1: 58.6% (114,205 votes)
No on Proposition 1: 41.4% (80,538 votes)

Democratic Underperformance Relative to Proposition 1: 11.8% (22,313 votes)

California’s 40th Congressional District (Northern Orange County and Suburban Los Angeles County)

Young Kim* (Republican): 56.8% (161,589 votes)
Asif Mahmood (Democrat): 43.2% (122,722 votes)

Yes on Proposition 1: 54.4% (154,609 votes)
No on Proposition 1: 46.6% (129,355 votes)

Democratic Underperformance Relative to Proposition 1: 11.2% (31,887 votes)

California’s 41st Congressional District (Lower Mojave Desert, Imperial Desert, and Western Riverside County)

Ken Calvert* (Republican): 52.3% (123,689 votes)
Will Rollins (Democrat): 47.7% (112,769 votes)

Yes on Proposition 1: 56.1% (132,856 votes)
No on Proposition 1: 43.9% (104,133 votes)

Democratic Underperformance Relative to Proposition 1: 8.4% (20,087 votes)

California’s 45th Congressional District (Northern Orange County and Suburban Los Angeles County)

Michelle Steele* (Republican): 52.4% (113,916 votes)
Jay Chen (Democrat): 47.6% (103,466 votes)

Yes on Proposition 1: 55.1% (118,708 votes)
No on Proposition 1: 44.9% (96,680 votes)

Democratic Underperformance Relative to Proposition 1: 7.5% (15,242 votes)

California’s 47th Congressional District (Orange County - Irvine, Mission Viejo, Lake Forest, Newport Beach, Huntington Beach, and Costa Mesa)

Scott Baugh (Republican): 48.3% (128,261 votes)
Katie Porter* (Democrat): 51.7% (137,374 votes)

Yes on Proposition 1: 61.2% (160,741 votes)
No on Proposition 1: 38.8% (101,846 votes)

Democratic Underperformance Relative to Proposition 1: 9.5% (23,367 votes)

California’s 49th Congressional District (Southern Orange County and Northern San Diego County)

Brian Maryott (Republican): 47.4% (138,194 votes)
Mike Levin* (Democrat): 52.6% (153,541 votes)

Yes on Proposition 1: 61% (175,573 votes)
No on Proposition 1: 39% (112,243 votes)

Democratic Underperformance Relative to Proposition 1: 8.4% (22,032 votes)

Of note, three of the Congressional candidates (Adam Gray, Kevin Kiley, and Rudy Salas) voted on whether to place Proposition 1 on the ballot while serving in the California State Assembly.

Kevin Kiley (R) voted against SCA 10 on the Assembly floor and won his race despite his district voting overwhelmingly for Proposition 1. Adam Gray (D) and Rudy Salas (D) voted in favor of SCA 10 on the Assembly floor and lost their races despite Proposition 1 passing in both of their respective districts.

Democratic underperformance varies but Yes on Prop 1 outperforms Democratic candidates both percentage wise and number of votes. The underperformance appears to be far larger in suburban Southern California and rural northern California than in the Central Valley, which is more culturally conservative.

There are four seats where Proposition 1 passed by double digit margins that Republicans won (CA-3, CA-27, CA-41, and CA-45) and one seat where Proposition 1 passed by just under double digit margins (CA-40) that the Republicans all won. In all but one competitive battleground district (CA-40), Yes on Proposition 1 received more votes than the victorious Republican candidate.

This is notable because had the Democrats won five additional House races in 2022, the Democrats would have retained control of the United States House of Representatives despite losing the national popular vote overall.

If voters who voted in favor Proposition 1 had also cast ballots for Democratic candidates, as was assumed by Democratic leadership, consultants, and punditry, Nancy Pelosi would still be the Speaker of the House.

What are the key takeaways from the results?

I am no political stats geek but it seems clear that:

1. A significant number of pro-choice voters who voted in favor of enshrining abortion rights into the California Constitution voted for Republican Congressional candidates.

2. If Proposition 1 was successful in increasing the number of unlikely voters who wanted to enshrine abortion rights into the California Constitution, a significant number of those voters voted on the ballot measure question and skipped the ballot for elections to political offices.

3. Candidates did not get punished for opposing Proposition 1 when the voters in their Congressional District supported it.

4. Candidates did not get rewarded for supporting Proposition 1 when the voters in their Congressional District supported it.

Why is it that some pro-choice voters voted Republican or skipped the ballot altogether?

My own theory is that when an issue is presented to voters on the ballot, it removes the issue from the candidate race. In the aftermath of Dobbs, many loyal Republican but fervently pro-choice voters may have struggled with their vote. Many had assumed Roe v. Wade would never be over-ruled and so the abortion issue never factored to them when voting for a pro-life Republican.

However, if the issue of abortion is placed on the ballot, those pro-choice voters can feel far more secure casting a ballot for a pro-life Republican in an electoral race, as they typically do, because they believe the issue will be out of the hands of those who they vote for. If abortion rights are constitutionally protected, it really doesn’t matter that they elect a pro-life candidate to office.

Additionally, while ballot measures protecting abortion rights may bring out unlikely voters, it is possible that many of those voters, who don’t care much for politics anyway, skip the ballot for candidate races.

It is also possible that uninformed voters may vote for Republican candidates out of the erroneous belief that Democrats are responsible for Roe v. Wade being overruled since it occurred while a Democratic President was in office.

In any event, whatever the cause, it is clear that successful abortion rights ballot measures do not guarantee electoral success for Democrats.

This article should not be taken for an argument that ballot measures to add state constitutional protections for abortion are unimportant or should not be pursued. There are states where state courts have retracted on abortion rights and where pre-Roe v. Wade statutes criminalizing abortion are now once more in effect.

Amending state constitutions to protect reproductive freedom is vital. However, they should be carefully written and added for the purpose of protecting women and doctors, not rushed onto the ballot for the sole purpose of winning political races.

While ballot initiatives to enshrine abortion rights in state constitutions are worthwhile efforts to protect individual rights of women, some cold water should be thrown on the theory that abortion referendums are the secret sauce that will help re-elect Joe Biden in 2024 and help the Democrats win overall.

1. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author's scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

2. https://www.pbs.org/newshour/politics/here-are-the-states-where-abortion-access-may-be-on-the-ballot-in-2024

3. Cal. Const. Art. I, § 1 (“All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”)(emphasis added); American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 319 (Cal. 1997)(explaining that “the electorate's adoption of an explicit California constitutional right of privacy in November 1972, provided additional protection of a pregnant individual’s right to choose whether to continue or terminate her pregnancy.”); Conservatorship of Valerie N., 40 Cal. 3d 143, 163 (Cal. 1985)(“The right of a woman to choose whether or not to bear a child and thus to control her social role and personal destiny, is a fundamental right protected by [Article I, Section 1 of the California Constitution].”); Committee to Defend Reproductive Rights v. Myers, 29 Cal. 3d 252, 262 (Cal. 1981)(holding that “under article I, section 1 of the California Constitution all women in this state -- rich and poor alike -- possess a fundamental constitutional right to choose whether or not to bear a child.”).

4.

5. Results for California’s Congressional Races can be found here: https://elections.cdn.sos.ca.gov/sov/2022-general/sov/48-congress.pdf

6. Results for Proposition 1 by Congressional seat in California can be found here: https://elections.cdn.sos.ca.gov/sov/2022-general/ssov/ballot-measures-congressional.pdf