The Republican War on Direct Democracy
As gerrymandered legislatures have resulted in supermajorities across several states, all but eliminating the power of the minority party, ballot measures have become an increasingly common method for voters to exert their influence. But a new report indicates that some state governments are actively seeking to undermine the ballot initiative process in an effort to prevent certain measures from making it onto the ballot, for voters to work their will.
An analysis released by the Fairness Project, an advocacy group which supports progressive citizen-sponsored ballot measures, argues that “direct democracy is facing a coordinated attack from extremist politicians who are either unresponsive to or intent on silencing the voices of their constituents.” The report, which was first obtained by The New Republic, finds that several Republican-led states have attempted over the past decade to limit initiatives through methods such as increasing the threshold to pass a measure and implementing stringent signature requirements.
“The breadth of these attacks is overwhelming,” said Kelly Hall, the executive director of the Fairness Project. “In the same way that we’re seeing broad attacks across states on voting rights generally and how people access the ballot box, we are also seeing a broad set of attacks on what people get to vote on once they make it to the ballot box.”
The efforts to stymie citizen-led ballot measures were the result of a multi-step process, argued Hall. She cited increased polarization in state legislatures resulting in gerrymandered districts, as well as the success of recent ballot measures in red states on issues such as Medicaid expansion, raising the minimum wage and marijuana access. (After Missouri legalized recreational marijuana via ballot measure, the state Senate majority leader said its success “maybe indicates it’s a little too easy to get things through initiative petition.”) Hall continued that the overturning of Roe v. Wade, and the fact that the “abortion rights position won everywhere they were on the ballot” in 2022, is “accelerating this trend.”
The report particularly highlights an upcoming vote in Ohio on a measure which would increase the threshold for adding an amendment to the state constitution to 60 percent. As I’ve previously reported, that vote will occur next month, despite a move by the state legislature last year to all but eliminate August special elections, with the oblique purpose of preventing the passage of an amendment which would enshrine abortion rights into the state constitution.
A recent poll by USA Today/Suffolk University found that 58 percent of Ohioans would support an amendment to protect abortion rights and other reproductive services. If the threshold for passing an amendment were raised to 60 percent, that would make it that much more likely that such an amendment would fail.
But Ohio is not the only state using such tactics to hinder citizens’ ability to sponsor initiatives, according to the Fairness Project report. In addition to the Buckeye State, states such as North Dakota, Missouri, Arkansas, Arizona, and Florida “have either passed, attempted to pass, or are currently working to pass” measures increasing the threshold to pass ballot initiatives. (The report identifies Idaho, Arizona, North Dakota, South Dakota, Oklahoma, Arkansas, Mississippi, Missouri, Ohio and Florida as “key battlegrounds for ballot measure access.”)
Onerous signature collection requirements are another hurdle, with several states seeking to “increase either the number of counties from which a campaign must collect signatures, the number of congressional districts … or the percent of the population within a county/congressional district from which a campaign must collect signatures.” Then there are the requirements for petition circulators: According to the report, 18 states require circulators to swear under oath they witnessed the collection of every signature.
South Dakota places particular onus on petition circulators, who must verify each petition sheet in the presence of a notary, as well as undergo a special registration process and wear a specific ID while collecting signatures. Signatures must also be collected on a single page in 14-point font, creating a so-called “beach towel effect,” which describes how the ballot measure petitions themselves can become several feet wide and long once unfolded. (South Dakotans voted down a measure to increase the threshold to 60 percent last year.) The compounding of requirements leads to what Hall considers to be a “death by a thousand cuts” effect on getting measures on the ballot.
“You can figure out how to hold up a fold up a beach towel sized piece of paper and overcome it. But then also managing that with the notary, also managing that with registering each of these volunteers with the state—one thing on top of the other is what then ultimately makes it such a problem,” Hall said.
The Fairness Project report also highlights “attempted post-passage sabotage” in order to “slow-roll or block” the implementation of ballot measures. For example, Florida Governor Ron DeSantis and the Republican legislature undermined a citizen-passed initiative that allowed most people with prior felony convictions to vote by requiring that these people pay off all fines and fees before that right is restored. In Mississippi, the state Supreme Court struck down a ballot measure legalizing medical marijuana on a technicality and then delegated the responsibility to reset the petition process to the state legislature, which has thus far not taken any action.
Even seemingly minor technical changes could undermine the citizen initiative process, the report argues. For example, 17 states now have a “single-subject” rule requiring a ballot measure to pertain to one topic, which the Fairness Project contends “enables judges to decide what constitutes a ‘subject,’ leading to partisan judicial decisions.” Such a requirement has been passed in Arizona and South Dakota, and is under consideration in North Dakota.
Citizen-led ballot measures are not foolproof methods for enacting the will of the people; for example, California’s notoriously powerful initiative process has occasionally led to the consideration of dueling measures, amendments with confusing wording, and an influx of campaign spending. But such measures allow for direct democracy in states dominated by one-party rule. The lawmakers elected to supermajorities by their constituents could thus dilute the political power of their own supporters.
Moreover, measures that raise the thresholds for public participation permit a minority of voters to dictate policy for the rest of the state—for example, 41 percent of Ohioans could potentially determine that abortion should not be a state constitutional right over the wishes of a broader majority of citizens. If the mechanics of direct democracy is undermined, it could make it more difficult for the will of the people to be heard and enacted.
“Lawmakers, particularly in conservative states, are realizing that their own voters are not with them, [and] that if they don’t change the rules of the game, they won’t win,” argued Hall. “Lawmakers should be trying to act in accordance with the views of their constituents and the folks who sent them to office, and instead they are trying to quiet those voices.”