When former President Donald Trump told a national audience in his first and likely only debate with Democratic presidential candidate Kamala Harris that abortion rights were “now on the ballot,” he was partially right. Since the U.S. Supreme Court overturned Roe v. Wade in June 2022, voters in seven states (California, Kansas, Kentucky, Michigan, Montana, Ohio, and Vermont) have expressed their opinion on abortion policy through referendums. Abortion rights supporters won in all seven states. Some voted to approve state constitutional amendments to guarantee the right to abortion, while others blocked stricter restrictions from taking effect. In November, voters in 10 states – Arizona, Colorado, Florida, Maryland, Missouri, Montana, Nebraska, Nevada, New York, and South Dakota – will vote on referendum measures that would require some form of abortion rights protection to be included in their state constitutions.
But Trump’s “states vote” assertion doesn’t apply to the entire country, including Texas. The nation’s second-largest state, with 30 million people, is one of 14 states that has a total ban on abortion (a law with rare and confusing exceptions). In a recent interview with Texas Monthly, Sen. Ted Cruz, who is seeking a third term, offered a more nuanced take on Trump’s views, telling reporter Michael Hardy that “the particular restrictions that state legislatures adopt reflect the values ​​of the citizens of each state.”
But the values ​​embraced by the Republican-dominated Texas Legislature don’t align so neatly with what voters say they want. The Legislature passed Senate Bill 8, a so-called abortion “bounty” law, in 2021 before Roe was overturned. Nearly half of Texas voters want more moderate abortion laws, according to a Texas Politics Project poll conducted in August. And another Texas Politics Project poll after SB8’s passage found that 78% of Texas adults believe abortion should be allowed in some form, while only 15% say it should never be allowed. Respondents were largely split along party lines, with a majority of Democrats (67%) saying Texans should have the right to seek an abortion as a personal choice. But even a majority of Republicans (42%) said they favor allowing abortion in cases of rape or incest, or if the woman’s life is at risk.
Despite public opinion in the state, there is no mechanism in place that allows Texans to explicitly vote on abortion rights; Texas does not allow any form of citizen-initiated referendum. All constitutional amendments must be proposed by the state Legislature. Most bills can be passed with a simple majority in each house, but a joint resolution proposing an amendment to the state constitution requires the support of two-thirds of the total members of each house. (This equates to a minimum of 100 votes in the Texas House of Representatives and 21 votes in the Texas Senate.) Because the Republican-dominated Legislature is unlikely to put such an issue to voters, there is no way for Texans to directly influence the state’s abortion policy.
The system dates back to the early 1900s, when other states in the country were adopting progressive reforms, including policies allowing citizen-initiated ballot initiatives. Texas came close. In 1912, Texas passed a constitutional amendment allowing “home-rule” cities. This allowed citizen-initiated initiatives at the municipal level, but only on local issues that did not conflict with state or federal law. Two years later, Texas voted on a proposal to allow citizens to create statewide initiatives, but it was defeated 52 percent to 48 percent. Some supporters of the initiative movement were pleased with the defeat of the amendment because the measure included burdensome signature requirements. At the time, they believed they could get lawmakers to pass a better amendment, but that never happened.
Yet at a time when government reform was underway across the country, Texas’ conservative Democratic leaders chose to take measures that limited voting access and regulated civic participation, University of Houston history professor Nancy Beck Young told me. For example, Texas granted women the right to vote in the Democratic primary in 1918, but only white women were allowed to vote. (A 1944 U.S. Supreme Court ruling found “white primaries” unconstitutional.) “State governments at the time believed that white voters were legitimate voters,” Young said. “People who believe this way are not going to make it easy to put voters’ own ideas on the ballot through initiatives or referendums, and they are not going to make it easy to repeal measures they oppose.”
Some Texas lawmakers have tried to create a citizen initiative referendum system for years, but all efforts have fallen short. In 1996, Democratic Lt. Governor Bob Bullock appointed a special committee in the Texas Senate, made up mostly of Republicans who were in the minority at the time, to study citizen initiatives and referendums. The committee submitted a report in December of that year that seemed to support the idea that the state legislature should propose a constitutional amendment to allow citizen-led initiatives. But another important event occurred in 1996. A month before the report was submitted, Republicans flipped the Texas Senate and nearly flipped the House as well. Suddenly, the idea of ​​returning power to the voters became unpopular. In 1997, a citizen initiative and referendum bill introduced by Republican Jane Nelson, who was then a senator (and now Secretary of State), was referred to a Senate committee and never seen again. Since then, the issue has remained largely unresolved.
Democrats have recently been working to put base-supported ideas on the ballot in odd-numbered years with a vote. During last year’s legislative session, Rep. James Talarico of Austin introduced a joint resolution proposing a constitutional amendment to limit the Legislature’s power to pass laws restricting abortion. The resolution languished in a state Assembly committee before ultimately dying.
“Politicians don’t want to listen to their constituents on certain issues because they know Texans are against them on the issue of abortion rights,” Talarico told me. “In my opinion, they’re silencing and muzzling the people of Texas. On an issue as important as this, Texans should decide.” But a resolution like Talarico’s is unlikely to pass in a state legislature controlled by one of the most radical Republican parties in the country, especially on issues related to reproductive rights, as evidenced by an increasing number of lawmakers wanting to make abortion a felony, even punishable by death.
So does this mean Texans will never get a vote on abortion legislation? That doesn’t seem likely in the near future. Republicans control both houses of the Legislature, holding 19 seats in the 31-seat Senate and 86 seats in the 150-seat House. That may change after November 5, but only by a small margin. As Texas Monthly previously reported, Democrats have a realistic chance of taking up to seven seats from Republicans in the House. Given that Republicans thoroughly rigged state legislative districts in 2021, protecting nearly all incumbents, it’s unlikely they’ll gain any seats in the Senate. That leaves Texans who want looser abortion legislation with only one realistic avenue to change the legislation: voting for lawmakers who will act on the clear will of their voters.
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