How The GOP Is Suppressing Citizen Lawmaking
A voter casts their ballot on Sept. 23, 2022, in Minneapolis, Minnesota. (AP Photo/Nicole Neri)
Citizen-led ballot initiatives have ushered progressive policies into red states — but now such efforts are under attack.
by Jeff Milchen
As state lawmakers become ever less responsive to the needs of their constituents, citizen lawmaking via ballot initiatives is becoming an increasingly critical tool to counter minority rule and usher in progressive policies — from raising taxes on the wealthy to expanding public health insurance. As the August voter uprising that defeated the Kansas anti-abortion measure makes clear, such direct-democracy efforts will likely prove especially important in protecting abortion rights following the end of Roe v. Wade.
GOP-led states, however, are now waging a three-pronged attack on citizen lawmaking: erecting barriers to keep citizen initiatives off the ballot, impeding these initiatives’ passage, and sabotaging their implementation. The Ballot Initiative Strategy Center (BISC) discovered a fivefold increase since 2017 in bills that aim to threaten the ballot process. While some of the most egregious proposed restrictions can’t pass without voter approval, many recently-passed laws have made it far more difficult for citizens to use the initiative process.
“There’s a clear connection between progressive ballot victories and attacks on the initiative process,” said Corrine Rivera Fowler, legal advocacy director for the BISC, which identified 146 bills introduced in state legislatures in 2021 to worsen the ballot measure process. “These state bills intend to impede and even take away our use of the ballot measure for liberation.”
Such attacks are not just anti-democratic, but dangerous. Beyond the obvious harm to democracy, attempts to undermine citizen lawmaking increase the threat of social upheaval. The January 6 insurrection demonstrated the response of thousands of people who were wrongly convinced their votes had been canceled. Real disenfranchisement could provoke additional angry backlash.
Direct democracy serves as a crucial safety valve, enabling upset citizens to correct unresponsive governments or political parties that veer too far from constituents’ wishes. This corrective power is especially important as partisan gerrymandering creates safe seats to insulate officeholders from accountability to voters.
Last month, Republicans on Michigan’s Board of State Canvassers denied a ballot spot for an abortion rights initiative that garnered a record 735,000 petition signatures. They claimed inadequate word spacing in the petition fine print left people unaware of what they were signing. The same officials used another technicality to disqualify a new voting rights initiative.
It took a ruling from the Michigan Supreme Court to place the questions on the November ballot. The justices determined the board had no authority to deny citizens a vote on the two measures. In an election filled with high-impact initiatives, Michigan residents now join those in Kentucky, California, and Vermont in voting on ballot questions that will revoke or secure abortion rights.
More pro-choice measures seeking to overrule anti-abortion lawmakers will surely follow, as 11 of the states that allow citizen initiatives now have laws restricting or banning abortions (some are in litigation).
Complicating The Citizen Initiative Process
Citizens in 24 states enjoy the ability to make laws via initiative, which involves collecting a requisite number of signatures (and meeting other conditions) in order to place a binding proposition on the ballot. Initiatives may enact or repeal statutes or, in some states, amend the state constitution. Every state, meanwhile, enables legislative referendums, in which the legislature may place a question on the ballot for citizens to decide.
Direct democracy was used in the Thirteen Colonies and was common in New England town meetings, but state initiatives first appeared when South Dakota citizens brought initiatives to life in 1898 as a way for citizens to counter the corruption of state legislatures by mining, railroad, and timber interests. Oregon, Montana, and other mostly Western states soon followed. Along with the 24 states enabling direct citizen lawmaking, 23 overlapping states offer a veto referendum process that allows voter initiatives to overturn state laws passed by the legislature.
Republican officials are now taking aim at such processes, likely because they have discovered that many red state voters aren’t as reliable in their voting habits as they might have assumed. That phenomenon became national news in August, when Kansas voters turned out in record numbers during the state’s primary elections to defeat an anti-abortion referendum, the first ballot question on the issue since the Supreme Court overturned Roe v. Wade and invalidated federal protections for abortion rights.
While that outcome stunned many observers, Kansas is no outlier. Utah voters, for example, have granted Republicans unbroken control of the state House, Senate, and governor’s office since 1992. Yet those same voters have decisively favored initiatives to expand Medicaid, legalize medical marijuana, and implement nonpartisan redistricting to thwart gerrymandering, the process of deliberately drawing election district boundaries to favor a particular political party. All of these ballot questions passed in 2018, after elected officials failed to address citizen concerns.
Taking Aim At Signature Gatherers
These rebukes are why many GOP lawmakers are now working to add onerous and costly demands to citizen lawmaking initiatives, with the goal of deterring citizen groups with limited resources from even attempting a ballot campaign to begin with.
In Utah, for example, an out-of-state group with anonymous funding called the Foundation for Government Accountability helped pass a 2021 law banning paying signature gatherers per valid signature, which is currently a standard practice. By nixing a key incentive for workers to gather more signatures than they would if paid strictly by the hour, the law will hike both the cost and duration of campaigns to qualify a ballot measure.
The Foundation for Government Accountability has been funded by the dark money network led by anti-abortion operative Leonard Leo, who’s best known for helping build the conservative supermajority on the Supreme Court that overturned Roe. Leo’s network donated $2 million in 2020 to the Foundation for Government Accountability and $840,000 to its advocacy arm, FGA Action.
Barre Seid, the Chicago surge protector magnate who recently converted his business empire into a $1.6 billion political advocacy donation for Leo, has also reportedly helped fund the Foundation for Government Accountability.
In Arkansas, meanwhile, the state Supreme Court ordered initiatives seeking to establish ranked-choice voting and an independent redistricting process — both non-partisan, pro-democracy measures — to be removed from the 2020 ballot after they’d qualified. According to the court, the initiative violated a 2015 Arkansas law requiring signature gatherers to pass both federal and state background checks via state law enforcement — an impossible mandate, since the state lacks the authority to conduct federal background checks.
That background check law was overturned in court last year, but Arkansas lawmakers replaced the requirement with a slew of new barriers, from banning paid signature gatherers to barring anyone previously convicted of minor offenses from collecting signatures.
Mississippi’s legislature refused to revise a provision in the state constitution requiring that petition signatures be evenly distributed across all five of the state’s congressional districts. That became impossible after the 1990 census reduced the state to four congressional seats. Nevertheless, that language was used to remove a marijuana legalization initiative from the ballot in 2020.
After Idaho legislators refused to expand Medicaid coverage, the grassroots group Reclaim Idaho organized a 2018 initiative campaign, winning by a 22-point margin. Idaho later enacted a law requiring that initiative petition signatures come from six percent of voters in all of Idaho’s 35 legislative districts, including those up to eight hours away from the state capital in Boise. The intent to disenfranchise voters was so blatant that the Idaho Supreme Court struck down the law last year.
Demanding signatures from every district or county not only enables a single extremely progressive or conservative locality to limit policy for an entire state; it also carves a path for corporate front groups to derail pesky populist campaigns in their infancy.
Instead of spending $63 million statewide, as the utility NV Energy did to stop a Nevada initiative that would have ended its lucrative electric monopoly, a corporation could likely stifle a potential new bill by saturating just one district with attacks. Since the U.S. Supreme Court ruled to forbid restrictions on corporations’ ballot spending, many proposed hurdles for ballot initiatives would impact only grassroots efforts. This development flips the original intent of ballot initiatives — empowering citizens against the power of powerful corporate interests.
Raising The Vote Threshold
Along with working to stop citizen initiatives from reaching their state ballots, lawmakers are also trying to ensure that the measures that make it onto the ballot are unlikely to pass.