Republican-led legislatures are fighting an uphill battle to limit citizens’ and other lawmakers’ ability to place ballot measures — a move progressive groups say is explicitly designed to make it difficult for voters in red and purple states to have direct say on major issues like abortion rights.
According to a review by the Ballot Initiative Strategy Center, which works with progressive organisations to advance ballot measures, 109 bills were filed in state legislatures in 2022 to alter the citizen-led ballot initiative process; 58 would explicitly have made the process more difficult. According to an NBC News review, Republican legislators seeking to limit the placement of such ballot initiatives, including those that would amend state constitutions, have already pre-filed at least 11 such measures in at least three states ahead of the 2023 legislative sessions, which begin in January and February.
Progressive groups, including reproductive rights organisations and the ballot initiative groups with which they frequently collaborate, say the efforts are a direct response to the success of progressive ballot initiatives on issues such as expanding Medicaid and raising the minimum wage.
Efforts to limit the ballot initiative process have increased as a result of a string of victories by abortion-rights groups who, inspired by the Supreme Court’s decision in June to overturn Roe v. Wade, put abortion directly on the ballot. They won in all six states where abortion access ballot initiatives were on the ballot this year. These organisations are now planning additional measures in at least ten states over the next two years.
However, if conservative legislatures pass their own legislation making it more difficult to place ballot initiatives, those efforts will be severely hampered, if not obliterated.
“There’s just so much opposition — not just to reproductive freedoms, but to the vehicles that reproductive freedom organisations are now attempting to use to protect those freedoms,” said Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center. “We know that many politicians don’t like being told what to do — and whether we still have this tool will be critical to the success of the reproductive freedom movement, as well as many other issues that rely on it.”
“After the success we saw in taking reproductive freedom directly to the people, we’ve definitely seen an uptick in these efforts to change the rules to suit their game,” J.J. Straight, deputy director of the Liberty Division at the American Civil Liberties Union, who is working with local organisations to research abortion rights ballot measures in 2023 and 2024, added.
Last month, Republican legislators in Ohio collaborated with the Republican secretary of state to write and advance legislation that would put a ballot measure before voters in a May special election. If passed, it would require a 60% support threshold for future ballot measures to pass, rather than the current majority.
“The Ohio Constitution is supposed to serve as a framework for our state government, not as a tool for special interests,” Ohio’s Republican secretary of state, Frank LaRose, said in a statement. “If you have a good idea and believe it deserves to be within the framework of our government, it should be subject to the same standard for approval that we see in both our United States Constitution and here in our own state legislature.”
Because of heavily gerrymandered maps, Republicans hold a supermajority in both chambers of the Ohio Legislature, which is set to take up the measure when its session begins next month.
In Missouri, legislators in the House have already pre-filed at least nine bills for the upcoming legislative session, all of which seek to increase the requirements or thresholds required to pass ballot initiatives to amend the state constitution. Missouri law currently allows all ballot initiatives to pass with simple majorities.
Missouri voters legalised recreational marijuana last month after passing a ballot initiative that amended the state constitution. State voters used the same process to expand Medicaid in 2020, and they similarly legalised medical marijuana in 2018.
Conservative legislators in Oklahoma, where efforts to make it more difficult to place citizen-led ballot initiatives have failed in the last two years, vowed to press on next year.
“Constitutional changes are much more permanent in nature and harder to change than a state statute enacted by the Legislature. As a result, they should face a higher hurdle to be enacted,” said Republican state Rep. Carl Newton.
Newton stated that he would continue to work to raise the threshold through a constitutional amendment, which would raise the threshold for future proposed constitutional amendments to 55% from a simple majority.
Republican legislators in South Dakota and North Dakota have indicated that they will try to raise the passage threshold for citizen-led ballot measures to change their state constitutions again, following the failure of similar efforts in both states this year (although at different stages).
Ohio, Missouri, Oklahoma, South Dakota, and North Dakota are among the 17 states where citizen-led ballot measures to amend the state constitution are legal; five other states and Washington, D.C. permit citizen-led ballot measures but not those to amend constitutions. They are also among the ten (of the seventeen) states where reproductive rights groups are considering ballot initiatives to enshrine abortion rights in their constitutions.
Spokespeople for LaRose, Newton, and several Missouri Republican legislators did not respond to questions about whether their proposals were designed in response to abortion-rights groups’ efforts.
If measures to tighten the thresholds in those states pass, such efforts will face even steeper uphill climbs.
That, according to ballot initiative groups, is the point.
“There are numerous ways in which this process can be disrupted, delayed, or terminated entirely. “This is one of the most obvious,” said Kelly Hall, executive director of the Fairness Project, a nonprofit that assists progressive organisations in advancing citizen-led ballot initiatives.
Despite the conservative push to limit ballot measures, Republican legislatures in red and purple states actively used the ballot measure process over the last year to make it more difficult for voters to amend state constitutions. The efforts yielded mixed results.
In Arizona, Proposition 132 passed, raising the threshold for enacting constitutional tax ballot initiatives to 60%. (from a simple majority). Critics claim the measure is merely a trial run for a more comprehensive measure that would raise the threshold for all such constitutional ballot initiatives.
Another, known as Proposition 128, was defeated. It would have changed the state constitution to make it easier for the Legislature to repeal citizen-led ballot initiatives that had passed.
Issue 2 was defeated in Arkansas. It would also have increased the threshold for ballot initiatives to amend the state constitution from 50% to 60%. (from a simple majority).
Although two of the three were unsuccessful, they provide a road map for red and purple state legislatures to try to deny the practise of “direct democracy,” which proponents claim more accurately reflects voters’ attitudes on certain issues.
“Ultimately, we believe [citizen-led ballot initiatives] are an accountability tool that allows people to send a direct message to their government about their expectations and attitudes on major issues,” said ACLU’s Straight. “It’s cynical how much these legislators want to see less access to them, less ability for people to address their government and participate in the policymaking process itself, and less likelihood that laws will actually reflect the will of the majority of voters in their states.”
What about the notion that conservatives are attempting to change the ballot initiative process through the ballot initiative process?
“They’re attempting to change ballot measures using ballot measures,” said Fields Figueredo of the Ballot Initiative Strategy Center.
“The irony of that is not lost on me.”