Reformers have enjoyed great success in recent years circumventing obstinate Republican legislators by placing measures on the ballot in states across the country to pass progressive priorities into law. These initiatives include efforts to implement independent redistricting, protect the right to vote, expand Medicaid, increase the minimum wage, and much more.
But Republicans in many of these states have responded not only by rolling back some of these voter-approved laws, but also by making it harder to pass any future initiatives. This disregard for the will of the public stems from more than just a disdain for direct democracy: Republicans have in many cases enacted restrictions that specifically target the ability to put progressive measures on the ballot, but not conservative ones.
The GOP's assault on the initiative process is in fact inspired by the same malign philosophy that has motivated Republicans to undermine the very concept of representative democracy. Ballot measures have been critical in fighting gerrymandering and guaranteeing the vote, but today's Republican Party has shown it's only too happy to entrench minority rule.
In just the last few years, Republicans in Arizona, Arkansas, Florida, Idaho, Maine, Michigan, Missouri, North Dakota, South Dakota, and Utah have all reacted to efforts to pass ballot initiatives that enact progressive policies and protect democratic institutions by trying to subvert those new laws, make future reforms much more difficult, or both. Below, we'll explore how this accelerating trend has played out from coast to coast, so that progressives can learn how to prepare for the now-inevitable rearguard actions that will accompany any victories at the ballot box.
● Arizona
In 2016, Arizona voters passed a $12-an-hour minimum wage and paid leave law; two years later, they resoundingly vetoed a Republican-backed law that would have massively expanded school vouchers. After each of these elections, Republicans passed new limitations on the initiative process.
In 2017, the GOP's restrictions included a ban on paying the circulators of ballot petitions based on the number of signatures they gather, instead requiring they be paid hourly or not at all, making the process of collecting signatures much more expensive for organizers. Republicans also passed another law that subjected initiative petitions to strict scrutiny, meaning that petition signatures could be rejected based on minor errors.
In 2019, Republicans sought to make the process even more difficult by requiring paid circulators to register with the state under penalty of criminal prosecution if they fail to. And this was actually the second time Republicans passed a law mandating that signature collectors register: A similar law from 2014 allowed those opposing a particular ballot measure to subpoena registered circulators. If the circulators don't show up in person to comply with the subpoena (even for reasons like moving out of the state), then every signature they've gathered can be thrown out—even if they're valid. This provision is the subject of a new federal lawsuit.
The Arizona GOP's assault on the initiative process should also be viewed in the context of Republicans' yearslong battle against the state's independent redistricting commission, which voters approved in 2000. After the commission passed maps after the 2010 census that didn’t give Republicans the same undue advantage they'd grown accustomed to, the GOP sued all the way to the Supreme Court, where it lost 5-4 in 2015 in its attempt to invalidate the state's commission.
This battle in the war on fairer redistricting is far from over, though, since the deciding justice in that case was now-retired Anthony Kennedy. Republicans unsuccessfully attempted to undermine the commission's independence once again in 2018, but they could have more success in the future thanks to the Supreme Court's partisan makeover.
● Arkansas
After Arkansas voters passed a ballot initiative to increase the minimum wage in 2018, and amid an ongoing effort to put redistricting reform to voters in 2020, Republican legislators placed a constitutional amendment on the 2020 ballot that would make it much harder for progressives—but not conservatives—to ever put a measure on the ballot again.
Currently, organizers must gather a number of voter signatures equal to a certain percentage of the vote cast in the most recent election for governor (but never greater than 10%). They must also collect half that percentage in at least 15 of Arkansas' 75 counties.
This new amendment, however, would triple that second requirement to mandate that half of all signatures come from at least 45 different counties. Given that Democrats and black voters are heavily concentrated in a few highly populated counties such as Pulaski County (home of Little Rock) and in the rural Delta region, this provision would effectively require those backing progressive measures to gather a significant number of signatures from rural, conservative-dominated counties that are heavily white. Conservatives, however, would not have to do the same in urban, heavily Democratic communities with large black populations.
The GOP's amendment would also cut six months off the time period during which organizers are able to gather signatures, and it would eliminate an option for a 30-day extension if backers collect at least 75% of needed signatures by the initial deadline. The amendment further raises the threshold needed for legislators themselves to put amendments on the ballot from a simple majority to a three-fifths supermajority, but that's no impediment to the GOP, since Republicans already hold three-fourths of all seats in the legislature and are poised to control redistricting after 2020.
● Florida
Last year, 65% of Florida voters passed an amendment to restore voting rights to up to 1.4 million citizens who had completed sentences for felony convictions. But not only did Republicans gut this restoration of voting rights by effectively imposing a poll tax that could keep up to 1.1 million affected people from voting, but GOP Gov. Ron DeSantis recently signed a new law that makes it harder to pass ballot initiatives in the first place
This new measure bans campaigns from paying petition gatherers per signature instead of hourly (just as in Arizona). The final legislation dropped an earlier and constitutionally dubious provision that banned signature-gatherers who weren't Florida residents, but ballot campaigns would still have to disclose whether they hired gatherers from other states.
Combined, these provisions are intended to undermine the ability of national civil rights groups such as the ACLU to support initiatives like 2018's voting rights restoration amendment. They're also designed to hurt groups with limited funding by making it more expensive to collect signatures.
Florida also requires 60% voter approval statewide for any initiative to pass, one of the highest such thresholds in the country. The GOP-run legislature put that supermajority requirement on the 2005 ballot, where it ironically passed with less than 60%. Conservative interests such as the Chamber of Commerce were strongly in favor of increasing the threshold, while groups such as the ACLU were opposed (Democratic legislators were split).
Notably, the 2005 law exempted measures put on the ballot by politicians (or their hand-picked commission) from a new restriction that voter-initiated measures can only address a single subject. That exemption lets legislators combine unpopular proposals with more popular ones to ensure both pass, something voters can't do on an initiative.
Yet even these restraints aren't enough for DeSantis, who has now also proposed moving the dates of ballot measure elections so that they're held separately from other elections. That would almost certainly lead to a sharp drop in voter participation, and low turnout would likely make the typical electorate for a ballot measure whiter, older, and thus more conservative than normal.
● Idaho
After Idaho voters approved a 2018 ballot initiative to expand Medicaid by a 61-39 margin, circumventing Republican lawmakers' opposition, not only did Republicans roll back the expansion by imposing onerous work requirements, but they also passed two bills that attempted to restrict the initiative process itself.
In a surprise move, Republican Gov. Brad Little vetoed both bills, but he was by no means on the side of ballot measure supporters here. Rather, in a transphobic statement, he all but admitted he vetoed the legislation to avoid losing a near-certain lawsuit challenging the laws, saying he otherwise supported the goals of the bills.
Taken together, these measures would have required initiative backers to collect signatures from 10% of registered voters in a supermajority of the state's 35 legislative districts. One of the two bills set that number at 32 districts and gave organizers just six months to gather signatures; the other would have required 24 districts and given supporters nine months to collect them. Either proposal would have been significantly more burdensome than current law, which requires collecting signatures from 6% of registered voters in just a simple majority of 18 districts within an 18-month time frame.
But that current law itself came about only because Idaho Republicans previously acted to make it harder to get initiatives on the ballot. After voters vetoed GOP legislation that would have gutted collective bargaining for teachers and ended their tenure and smaller-class-size protections in 2012, Republicans passed a law requiring campaigns to reach the signature threshold in a majority of legislative districts.
● Maine
Like many Maine governors who preceded him, former Republican Gov. Paul LePage won his office in the 2010 wave despite not winning a majority of the vote. Thanks to divided opposition, LePage won that year by just a 38-36 margin over left-leaning independent Eliot Cutler and a beleaguered Democratic nominee who took 19% of the vote.
As a Trump-esque Republican fond of open racism, LePage made opposition to Medicaid expansion a centerpiece of his governing agenda, repeatedly vetoing Democratic bills to provide health care to roughly 70,000 low-income Mainers. But in 2017, voters finally passed a ballot initiative expanding Medicaid.
However, that initiative was far from the end of the fight. LePage repeatedly refused to follow the law and implement the expansion, even going to the extreme of saying he would go to jail before doing so. A lawsuit over LePage's refusal to adhere to the results of the ballot measure eventually saw a court order him to implement expansion. Last year, Democrat Janet Mills won election to replace LePage, leading to her swiftly expanding Medicaid.
LePage was by no means the only Republican to staunchly oppose the initiative process or abide by its results. Following his two plurality victories and the string of plurality wins by governors before him, fed-up Maine voters passed another initiative in 2016 to implement instant-runoff voting. Under that system, voters rank their preferred candidates, and if no candidate wins a majority on the initial ballot, then the last-place candidate is eliminated and their votes are redistributed to their voters' subsequent preferences. That process repeats until one candidate wins a majority of votes cast.
Although this system does not inherently favor either party, Republicans saw LePage's two pluralities as proof that instant-runoff voting would harm their electoral fortunes, leading them to repeal the law outright in 2017 thanks to a few votes by Democratic defectors. Voters successfully thwarted this move by organizing yet another ballot measure—this time a veto referendum—to keep the law in place, which passed last summer.
Instant runoff wasn't the only recent initiative that Maine Republicans have sought to undermine. They also forced a government shutdown as part of a successful effort to repeal a 3% income tax hike that voters approved in 2016 on the portion of any household's income greater than $200,000, revenues that had been intended to fund public education.
● Michigan
2018 was a banner year for efforts to expand democracy in Michigan, with voters passing initiatives to create an independent redistricting commission; a voting rights package that included automatic voter registration, same-day voter registration, and no-excuse absentee voting; and a third measure to legalize recreational marijuana.
But using their illegally gerrymandered majorities in a lame-duck session before then-GOP Gov. Rick Snyder would be replaced by Democratic Gov. Gretchen Whitmer, Republicans rammed through two laws to undermine same-day registration and restrict future initiatives.
The first of the GOP's two laws limits the effectiveness of same-day voter registration by imposing a registration cutoff two weeks before Election Day unless voters physically visit their county or township clerk's office rather than show up at their polling place. Proponents argue that this new law flies in the face of the measure's intent, and a lawsuit is possible.
The second law, meanwhile, tries to eviscerate the initiative process itself by forbidding any proposal from having more than 15% of its ballot petition signers live in a single one of Michigan's 14 congressional districts. That would make it disproportionately harder to put progressive measures on the ballot, since organizers would be pressured to gather a greater share of signatures from more conservative rural areas, where voters are further apart and harder to reach than in densely populated and heavily Democratic regions such as the Detroit metro area. Furthermore, many Democratic voters are packed by GOP gerrymandering into just a few districts.
In May, Democratic state Attorney General Dana Nessel issued a formal legal opinion concluding that most of the GOP's attempts to restrict Michigan's new voting rights expansion were unconstitutional. Nessel's ruling is binding on state officials unless it's overturned in court, prompting voting rights groups to file a lawsuit in state court promptly to block the state from enforcing these new restrictions.
As in so many other states, though, 2018's lame-duck efforts to undermine the will of voters was by no means the Michigan GOP's first such attempt. In 2012, voters vetoed a GOP-backed law that let Republicans override the decision-making of elected local governments by installing emergency managers answerable only to the state government. However, Republicans—in another lame-duck session—simply tweaked the emergency manager law and added a token appropriation to the measure so that voters couldn't put another veto referendum on the ballot.
That disregard for both direct democracy and representative democracy at the local government level had tragic results, since there's a straight line from this power grab to the decisions made by an emergency manager that created the Flint lead-poisoning water crisis.
● Missouri
Like Michigan, Missouri was another state where voters decisively passed a ballot initiative to reform redistricting in 2018, in this case adding a requirement of partisan fairness to the state constitution when legislative districts are drawn. In response, Missouri Republicans attempted to pass a constitutional amendment of their own to gut last year's reform.
The GOP's measure would have abolished the requirement for partisan fairness and weakened protections for communities of color, supplanting them with a compactness requirement that would pack Democrats and black voters into a disproportionately small share of districts. It would also have eliminated the nonpartisan demographer who would propose maps to the legislature and instead hand the mapmaking power back to a bipartisan commission that had grown hobbled by gridlock.
Even worse, the GOP's proposal would have taken full advantage of the Trump administration's push to use citizenship data for redistricting. The amendment would have removed the requirement that districts be drawn based on their total population and instead would have substituted language saying that districts should be drawn on a vague basis of "one person, one vote."
While that language might sound equitable—gerrymandering opponents have in fact used it to argue for partisan fairness—Republicans intend to twist it toward nefarious ends by pushing for districts to be drawn based on the eligible voter population of adult citizens instead of on the total population. That would further deprive communities of color of their rightful representation, and consequently Democrats, too. That partisan distortion, of course, would be the exact opposite of what the voter-approved reform intended.
Despite passing their power-grabbing amendment in the state House, Republicans unexpectedly failed to pass it out of the legislature earlier this year due to a bizarre and unforced procedural botch. However, Republicans are likely to take another shot in next year's session, which would let them put it on the ballot for voter approval at a date of their choosing in 2020—likely a stand-alone election separate from the regular November elections, which would feature low turnout that would in all probability favor the GOP.
● North Dakota
In 2018, voters passed a constitutional amendment to establish a state ethics commission and impose restrictions on lobbyists giving gifts. Republicans responded this year by putting an amendment of their own on the 2020 ballot that, if approved, would let the legislature weigh in on whether to adopt any voter-approved amendments. If legislators reject it, voters would have to pass the amendment a second time at the next election, giving opponents more time to mobilize.
● South Dakota
In 2016, South Dakota voters passed a ballot initiative that would have placed strict limits on lobbying, created an independent ethics commission, and implemented a public campaign finance system that would have given each voter a voucher to donate to their preferred candidates.
Just months later, Republicans resorted to declaring an actual state of emergency to enable the legislature to immediately repeal the voter-approved ethics law and make it immune to a veto referendum, meaning supporters of the reform needed double the signatures to put a constitutional amendment on the ballot to restore the measure. Although they did just that in 2018, Republican Attorney General Marty Jackley gave the new amendment a ballot summary that said it would "likely be challenged on constitutional grounds," and voters rejected the second ethics commission amendment 55-45.
That wasn't the end of the GOP's meddling, though. Before the 2018 elections, South Dakota Republicans also turned their attention to restrictions on the initiative process itself. One of several provisions they passed required ballot measure petitions to contain the petition gatherer's personal contact information and how much they were being paid if they weren't a volunteer. Another required petition gatherers to submit detailed personal information in a sworn statement to the secretary of state, creating an opportunity for intimidation.
Republican legislators also placed two constitutional amendments of their own on the 2018 ballot, one of which would have imposed a 55% supermajority requirement for ballot initiatives to amend South Dakota's constitution, and another that limited the number of subjects a single amendment could address. Voters rejected the supermajority requirement, but they approved the single-subject rule.
Republicans further attempted to use a ballot initiative to restrict out-of-state campaign contributions for initiatives in an attempt to stifle the ability of national groups to support reform efforts in South Dakota. Voters ultimately rejected that measure, which likely would have been found unconstitutional by the courts had it passed.
● Utah
Utah is one of the hardest states in which to circumvent legislative opposition via the ballot box. Initiatives have to meet a signature threshold equivalent to 10% of the most recent vote for president—a high threshold—and do so in 26 of the state's 29 state Senate districts, including many staunchly conservative rural seats.
However, activists nevertheless were able to get on the ballot and pass three initiatives in 2018: one to expand Medicaid, another to legalize medical marijuana, and a third to create a bipartisan redistricting advisory committee with a mandate to draw nonpartisan maps requirements. Importantly, Utah doesn't let voters place amendments to the state constitution on the ballot, so all of these measures were only statutory in nature, meaning lawmakers could alter or repeal them.
And that's exactly what they did. When Republican legislators convened in 2019, they rolled back much of the medical marijuana and Medicaid expansion laws. At the same time, they passed several smaller changes that added additional hurdles to conducting an initiative campaign.
They also looked into altering the redistricting law before ultimately postponing that decision to a future legislative session. That means there's still a strong chance that Republicans will try to tamper with this reform before the next round of mapmaking in 2021.
Direct democracy—just like representative democracy—has its drawbacks. However, it has been a vital tool in fighting back against Republican obstruction to pass legislation, such as minimum wage hikes and Medicaid expansion, that is extremely popular.
Ballot measures have also been a crucial weapon against Republican voter suppression and gerrymandering. Republican efforts to roll back direct democracy are therefore efforts to undermine representative democracy, too.
But no matter how hard Republicans make it to place initiatives directly before voters, and no matter how selectively they target liberal ideas while easing the path of conservative proposals, ballot measures will continue to grow in importance. And as they do, reformers must always be prepared—from the moment they set out—for the likelihood that winning passage will not be the final step, but only a prelude to further battles to come.
