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The GOP war on direct democracy has spread to at least 10 states [1]

['Daily Kos Staff']

Date: 2023-03-24  

In the face of the ironclad grip that Republicans have enjoyed over a vast swath of state legislatures ever since the massive wave election that swept so many hardliners into power in 2010, progressives have fought back at the ballot box—with tremendous success. In the many states where the GOP has refused to take action, activists have used ballot initiatives to expand Medicaid, raise the minimum wage, secure abortion rights, protect the right to vote, curb gerrymandering, legalize marijuana, promote gun safety, and more.

How have Republicans reacted to this? By trying to make it harder to pass initiatives in the first place.

In a healthy democracy, a party that sees its opponents pass a string of popular measures despite lockstep opposition would reconsider its priorities. Yet Republican lawmakers in nearly every red and purple state that allows initiatives have tried to make the process far more restrictive—to the point where it becomes effectively impossible to use initiatives to pass progressive policies at all.

These Republican attacks on ballot initiatives are not an isolated occurrence, nor are they mere philosophical disagreements with the notion of direct democracy, since many of these restrictions asymmetrically burden progressives but not conservatives. Instead, they have worked in tandem with the GOP's national assault on representative democracy and the right to vote, collectively forming an effort to cement conservatives in power and shut progressives out across the country using every means available, no matter their levels of popular support.

In every state, legislators can refer measures to the ballot that require the approval of voters in order to become law. But in about half the states, most of which lie west of the Mississippi River, citizens are also empowered to place measures on the ballot themselves, whether to pass or veto laws, or amend their state's constitution.

This initiative process can vary widely in terms of signature requirements, how many subjects a measure can address, and the threshold required for passage (though almost all states mandate just a simple majority). Because of these differences, some states such as California make it relatively easy to get onto the ballot and consequently can see a dozen or more initiatives every election cycle, while many red states, such as Ohio, make initiatives much harder and therefore tend to see far fewer.

The GOP's war on ballot initiatives often follows a similar pattern. First, Republican hardliners gain total power in a given state then try to permanently entrench themselves by passing gerrymanders and voting restrictions. Second, voters respond by attempting to pass progressive policies, voting rights protections, and anti-gerrymandering laws directly at the ballot box. Third, Republicans counter with restrictions on the initiative process itself. Lastly, if all that fails, Republicans refuse to enforce or even outright repeal voter-backed laws and stack state courts to help them do so.

Just a few years ago, we cataloged the many Republican efforts to restrict ballot initiatives since 2010 and looked at 10 states in particular, but this campaign has since only grown more extensive. Just this year alone, at least 10 states—including some on our previous list as well as several new entrants—once again have seen Republicans either consider or already advance legislation to cripple initiatives. Below we detail the latest developments, state by state.

Voters in Arizona successfully used initiatives in 2020 to legalize marijuana and increase taxes on the wealthy to fund public education (though courts later struck down this measure), while in 2016 they raised the minimum wage to $12 and created paid sick leave. Arizona in fact has a storied history of embracing initiatives: In 2000, voters made it the first state to create an independent redistricting commission, which Republicans have long fought to undermine.

This year, Republicans have passed a constitutional amendment in the state Senate to require a 60% supermajority for all future constitutional amendments after voters in 2022 narrowly passed a GOP-referred amendment requiring 60% approval for tax increases. Republicans have also passed an additional amendment in the Senate and in a state House committee to raise signature requirements for getting onto the ballot. (Note that Democratic Gov. Katie Hobbs cannot veto any of these amendments.)

Currently, voter-led ballot campaigns must obtain signatures equal to a percentage of the most recent vote for governor statewide: 15% for constitutional amendments, 10% for statutory measures, and 5% for veto referendums blocking legislation recently enacted by lawmakers. By contrast, the GOP's amendment would base those percentages not on the number of votes cast but on the number of registered voters on the state's rolls. It would further require that the statewide threshold also be met in all 30 legislative districts.

Basing signatures on registered voters instead of those who actually voted would require over 60% more signatures statewide based on recent figures, but it's the addition of the geographic requirement that would be particularly devastating to progressives. That's because the reddest district is a vast constituency in the state's northwestern corner that supported Donald Trump 75-24 in 2020, where 15% of registered voters is equivalent to 88% of all votes cast for Joe Biden. That's a nearly impossible burden, especially since campaigns often aim to gather substantially more than the minimum to ensure enough signatures are valid.

Conservatives could also have a harder time putting initiatives on the ballot because the bluest district supported Biden by a similar 75-23 margin, and 15% of registered voters is likewise 88% of Trump's total. However, turnout in this central Phoenix district was much lower than in the district described above, meaning conservatives would need fewer overall signatures in blue-leaning areas and would also be able to more efficiently gather them in dense urban districts.

Arkansas voters previously raised the minimum wage to $11 in 2018 and legalized medical marijuana in 2016. They also tried to create an independent redistricting commission in 2020, which GOP officials and the state Supreme Court blocked from the ballot on dubious grounds, but proponents could attempt to pass such a reform again in the coming years.

Voters in 2020 also rejected a GOP-referred constitutional amendment that would have increased the number of counties from which initiative supporters must obtain a certain number of voter signatures to 45 of the state's 75 counties, up from the current requirement of 15 counties.

Undeterred by that rejection, however, Republicans enacted a new statute to increase the requirement to 50 counties earlier this month—a move that may well violate the state constitution. But looking at the 2020 presidential election results shows how much of a one-sided straight jacket this threshold would be in practice.

Progressives could have met the previous requirement by focusing on the 15 bluest counties, which includes every one that Trump lost as well as those he won by up to 62-35, the same as his statewide margin. But to get to 50 counties, they would need every one that Trump won by up to 77-20. Meeting the requirement of 5% of the last vote for governor for an amendment and 4% for a statute, which is half the proportion required statewide, could be prohibitive in many of the reddest areas.

In contrast, the 50 reddest counties all supported Trump by at least 66-31, which is several points to the right of the state overall. These counties only cast 47% of total vote in 2020, whereas the 50 bluest counties cast 80%, meaning progressives would need to gather more signatures overall, too.

If this new law remains in effect, progressive initiatives could become nearly impossible while conservative initiatives would become only somewhat harder. (And in any event, with the legislature firmly in GOP hands, conservatives have little reason to pursue ballot initiatives of their own.) Opponents argue that signature requirements cannot be changed by statute and have already filed a suit challenging the law, which state constitutional law expert Quinn Yeargain explains has a good chance of success, although conservatives firmly control the state Supreme Court.

Florida voters in 2018 approved an amendment restoring the voting rights of more than 1 million people who had fully served their felony sentences for all but the most serious crimes, ending a lifetime disenfranchisement regime that disproportionately affected Black voters. Voters also increased the minimum wage to $15 in 2020 and passed anti-gerrymandering amendments in 2010, while an ongoing effort seeks to legalize marijuana in 2024.

In response, Republicans infamously enacted a modern-day poll tax in 2019 to prevent most of the newly enfranchised from voting. This year, they've advanced a constitutional amendment through multiple committees that would require a 66.67% supermajority to pass future amendments, up from the current 60%.

Notably, this increased supermajority threshold would be the highest in the nation, and had it been in effect over the last decade, it would have meant the defeat of every reform mentioned above.

Voters in Idaho expanded Medicaid in 2018 and used the threat of an initiative in 2022 to press the GOP legislature to increase funding for public schools.

But Idaho only allows initiatives to enact statutes, not constitutional amendments, so Republicans responded by restricting Medicaid expansion in 2019 and adding burdensome work requirements. This year, Republicans have passed a constitutional amendment in the state Senate and out of state House committee to make future initiatives harder by requiring voter signatures equal to 6% of registered voters in all 35 legislative districts instead of the current simple majority of 18 districts.

Like other states' geographic distribution requirements, this change would severely hinder progressives because the reddest district backed Trump 83-14 in rural eastern Idaho, where 6% of registered voters equals 46% of Biden's total votes. (In 2016, this requirement would have exceeded Hillary Clinton's total votes in another district.) By contrast, the bluest district backed Biden by a smaller 68-30, meaning 6% of registered voters there equals just 23% of total Trump voters, and conservatives could still more efficiently gather signatures in this dense urban district in Boise.

Despite its members' conservative lean, the Idaho Supreme Court previously struck down this same requirement in 2021 after Republicans passed it via statute. But as Yeargain has observed, if this amendment passes, it would effectively overturn that ruling.

After Mississippi voters legalized medical marijuana in 2020 and began efforts to expand Medicaid and adopt early voting, the conservative-leaning state Supreme Court struck down the marijuana law—and the entire initiative process along with it—for the most nonsensical of reasons. This year, Republicans passed differing versions of a constitutional amendment in both legislative chambers to nominally revive the initiative process, but their proposals were so limited that it would be practically worthless and Senate Republicans ultimately killed the bill after opposing the House's changes

Had it passed, the GOP's measure would have only allowed initiated statutes, not constitutional amendments as had been allowed before. Voters also would have been explicitly barred from modifying the state's near-total ban on abortion, appropriating money, or addressing other specific topics such as state pensions or local laws, while the Senate version had also doubled the required signatures. The inability to amend the constitution would have made ending gerrymandering impossible since approved initiatives would have immediately come before the legislature for changes if not outright rejection.

In recent years, Missouri voters have legalized marijuana, expanded Medicaid, made legislative redistricting fairer, adopted new ethics rules, raised the minimum wage to $12, and vetoed the GOP's "Right to Work" law.

In response, Republicans used a misleadingly written constitutional amendment to convince voters to gut the redistricting reform measure in 2020. This year, they've passed an amendment in the state House that would require a 60% supermajority for voters to approve future amendments. Mirroring the tactics of their 2020 redistricting measure, this latest proposal deceptively asks voters first whether to ban voting by noncitizens, even though the state constitution already prohibits it.

Two other amendments have advanced in a House committee, one of which would require that initiated amendments win voter approval not only statewide but also in a majority of legislative districts. This proposal would significantly constrain progressive initiatives but not conservative ones because Democrats are concentrated in a minority of districts in major cities and their suburbs. Accordingly, half the districts backed Trump by 61-36 or more, which is 9 points to the right of his already considerable 57-41 statewide margin.

On top of that, the GOP's other amendment could make almost all initiatives impossible by requiring that they win votes equivalent to a majority of registered voters, not just those voting on the question as is currently required. In practice, this means that even in 2020, when turnout nationally was the highest in over a century, initiatives would have needed the support of 75% of voters to become law. Passage would become literally impossible in almost any non-presidential election: Even with historically high turnout for a midterm, just under half of registered Missourians voted in 2022.

Amending Missouri's constitution via initiative is already challenging—voters approved only 28 of 69 citizen initiatives from the time they first became available in 1910 through 2022—but these proposals could sharply reduce even that frequency.

Voters established a state ethics commission in 2018 and tried to legalize marijuana in 2022, though that measure lost 55-45.

This year, Republican lawmakers have passed a constitutional amendment in the state Senate and in a state House committee that would limit initiated amendments to a single subject, require signature gatherers to have been state residents for at least 120 days and ban paying them entirely, and raise the signature requirement by 25%.

The proposal would also require that voters approve any initiatives at the ballot box not once but twice—first at the next primary and then at the next general election. Only one other state, Nevada, has a similar requirement, but there, voters get the opportunity to weigh in at two successive general elections. By mandating that one of the elections be a primary, North Dakota would further tip the scales against progressives because Republicans have more reason to vote in primaries than Democrats, since winning the GOP primary is often tantamount to victory in this deep red state.

Note that in neighboring South Dakota, voters sank a Republican amendment to increase the threshold for passage of ballot initiatives from a simple majority to 60% by a two-to-one margin last year.

Ohio is one of 23 states that permit voters to place "veto referendums" on the ballot—measures that, if they pass, overturn a law passed by the legislature—and in 2011, they did just that, blocking a Republican law that would have placed sharp limits on public employee unions. More recently, an effort that just won approval to begin gathering signatures for this November's ballot would protect abortion rights by overturning the GOP's six-week ban, and activists are also seeking to end the GOP's gerrymanders by creating an independent redistricting commission next year.

Overall, though, progressives have enjoyed fewer successes in Ohio than in comparable states because the Buckeye State already makes it much harder for liberals—but not conservatives—to get initiatives on the ballot by requiring half of all signatures to come from half its 88 counties. Since Democrats are largely concentrated in a handful of large urban counties, the "bluest" half of counties includes those that Donald Trump won by margins of up to 70-28, which is far larger than his 53-45 statewide victory.

This year, Ohio Republicans have re-introduced a constitutional amendment that could appear on the ballot this fall to require a 60% supermajority for future amendments instead of the current simple majority. The House version would also require voter signatures in all counties instead of half, which could make progressive measures nearly impossible, though the Senate version doesn't include that change.

A top sponsor privately told his GOP colleagues last year when this proposal first surfaced that it was squarely intended to block the abortion rights and redistricting proposals currently in the works. Fortunately, Republicans failed to pass the amendment last December and didn't advance it in time to put it on the May primary ballot, but state Senate President Matt Huffman recently indicated his caucus planned to pass the measure in April so they could put it on the ballot in August, when turnout would assuredly be low and there would be time for it to take effect for November.

However, state House Speaker Jason Stephens subsequently said he opposed holding a special election in August just months after lawmakers ended most August elections, since it could cost $20 million. Stephens, who earlier this year was elected speaker with Democratic votes over a more conservative choice supported by most Republicans, said he would vote against the bill if it made it to the floor but didn't say whether he would also use his power as speaker to block a floor vote entirely.

Oklahoma may be one of the reddest states in the nation, but voters in 2020 expanded Medicaid and also tried to create an independent redistricting commission until the pandemic disrupted signature-gathering.

Voters also recently attempted to legalize recreational marijuana after approving it for medicinal use in 2018, but Republican Gov. Kevin Stitt used his wide latitude over scheduling elections to set that vote for March 7 this year—a day when no other elections were on the ballot, even though local races were scheduled both just weeks earlier and a few weeks later. Doing so helped keep turnout low: Only 20% of eligible voters participated—just half as many as voted in the 2022 midterm election—and voters rejected the measure 62-38. Stitt had tried a similar ploy with the Medicaid expansion vote, setting it for the primary rather than the general election, but voters nonetheless passed that amendment 50.5-49.5.

This year, Republican legislators have passed a bill in the state Senate that adds a $750 fee for filing an initiative, doubles the time to challenge the petition from 10 to 20 business days, and makes petition signature verification more stringent. The leader of the successful Medicaid effort warned this bill could create a chilling effect by effectively requiring organizers to gather even more signatures, noting they had already submitted more than 300,000 signatures to meet the 178,000 threshold in 2020.

Republicans also considered several more restrictions that ultimately did not advance. The most aggressive would have required future ballot initiative votes to take place only in odd-numbered years, when the lack of federal and state races would ensure low turnout; most recent measures have appeared on the ballot in even years.

Utah voters in 2018 passed statutory initiatives to create a redistricting commission, expand Medicaid, and legalize medical marijuana. However, since Utahns can't initiate constitutional amendments, GOP legislators had the power to rewrite those new voter-approved laws. That they did, effectively gutting the redistricting reform so that they could continue gerrymandering after the 2020 census.

This year, Republican lawmakers passed a bill in the state House that would have required a 60% supermajority for future initiatives that raise taxes instead of the current simple majority requirement. However, the legislature adjourned in March without the state Senate passing the bill, effectively killing it at least for this session.

Despite this widespread assault on direct democracy, progressive reformers aren't without options for fighting back, but how they can do so varies depending on how each GOP restriction works. One key issue is whether a given restriction is merely statutory or amends the state constitution. Statutes can be more readily challenged in court, and in some states, a veto referendum can be used to repeal them. Amendments, meanwhile, must win voter approval to become law, giving citizens a chance to block them at the ballot box.

Sometimes, though, the strongest tool available is simply spreading awareness. Voters generally dislike attempts to curtail their power, as evidenced by their recent rejection of restrictions on the initiative process in several states. The Republican war on ballot initiatives thrives in darkness. The more light that is shined on it, the weaker it grows.

This piece has been updated to clarify the different signature requirements for different types of ballot initiatives in Arizona.

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[1] Url: https://www.dailykos.com/stories/2023/3/24/2159874/-The-GOP-answer-to-popular-progressive-reforms-Make-them-impossible-to-pass

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