Reclaim Democracy!

Tactics Being Used to Undermine Citizen Lawmaking

Ballot initiatives are a form of citizen lawmaking enjoyed by citizens in 26 states, with 24 of those enabling proactive measures and two allowing direct democracy only to overturn laws passed by the legislature. Created through voter petition drives, initiatives give voters the opportunity to enact policy on issues on which elected legislatures refuse to act or make laws rejected by most voters. As of 2022, 18 states enable initiatives to amend state constitutions and 23 states allow initiatives to enact statutes. These initiatives may be direct (initiative organizers craft the language the goes to the ballot) or indirect (legislators are charged with crafting the legal to implement voters’ will).

Ballot initiatives provide a crucial opportunity for citizens to step in when legislators ignore issues of importance to many citizens, or when elected officials rule contrary to the wishes of those who elected them. Attacks on citizen lawmaking have escalated in recent years as citizens increasingly pass laws to decriminalize recreational drugs, increase tax equity, raise minimum wages, and more. In most cases, it’s “red state” Republicans seeking to squelch the power of citizens (many of whom identify as Republican, but who favor some progressive or libertarian policies). Here are the tactics we’ve identified that are currently being pushed to obstruct or undermine citizen lawmaking.

I. Prevent or Impede Initiatives from Reaching Voters

  1. Constrain Signature Gatherers
  2. Refuse to Bring to a Vote
  3. Extreme Signature Requirements
  4. Disqualify Initiatives Based on Technicalities
  5. Delay Approval of Petition Language
  6. Ban Residents from Signing a Petition Across State Lines

II. Erect Barriers to Passage

  1. Require Supermajorities
  2. Manipulate Voting Dates

III. Prevent or Sabotage Implementation

  1. Delay or Defund
  2. Preempt or Refuse to Implement
  3. Override Citizen Votes
  4. Alter Intent of Successful Initiatives

I. Prevent or Impede Initiatives from Reaching Voters

1. Constrain Signature Gatherers
After the State legislature failed to act, Utah citizens adopted a series of progressive laws through ballot initiatives and referendums. In response, legislators passed a law making signature gathering more difficult, by mandating hourly pay for signature gatherers and requiring these organizers to wear badges, prompting worries of harassment by dissenters. The bill was funded by an out-of-state, dark money group and dramatically inflates costs to qualify ballot measures. In 2021, Arkansas legislator adopted a bill to bar petition circulators with “disqualifying convictions,” circumventing an earlier background check requirement for signature gatherers that was struck down by the state Supreme Court.

2. Refuse to Bring to a Vote
In 2022, Arkansas Board of Election Commissioners blocked a ballot proposal legalizing recreational marijuana for the fall ballot (voters already approved a constitutional amendment legalizing medical marijuana in 2016). The panel refused the measure, as they didn’t believe the ballot title fully explained to voters the impact of the amendment.

Also in 2022, Michigan GOP officials blocked two ballot measures (the Reproductive Freedom initiative and a voting rights initiative) based on technicalities they had no authority to address. On appeal, the Michigan Supreme Court ordered the questions be placed on the November ballot.

In South Dakota in 2023, a Republican Representative introduced a bill for a constitutional amendment to outlaw future ballot measures if they are “too similar” to measures rejected in the past. Of course, legislators reintroduce similar bills every session.

3. Extreme Signature Requirements
An Ohio bill introduced in 2023 would require signatures from all 88 counties instead of the current 44, making signature gathering impossible without major financial backing. In 2021, Idaho’s Supreme Court blocked a law requiring signatures from 6% of registered voters across all 35 legislative districts to qualify a ballot question. A virtually identical bill is pending as of March 2023 which also shrinks the window to collect those signatures to two months, effectively eliminating citizen lawmaking. Two similar signature distribution bills were defeated in Montana in 2021. Just one year later, the Eight Circuit U.S. Appeals Court let stand a similarly onerous requirement in Nebraska.

A 2021 law passed in South Dakota requires canvassers to collect signatures on a single sheet of paper that includes the full text of the initiative in 14-point font, creating documents as large as beach towels.

4. Disqualify Initiatives Based on Technicalities
In August 2022, Republicans on Michigan’s Board of State Canvassers barred an abortion rights initiative that garnered a record 735,000 petition signatures, based on typography. The same officials used another technicality to deny a 2022 voting rights initiative. On Sep. 8, 2022, the Michigan Supreme Court ruled the Board lacked authority to reject the measures and ordered them onto the ballot, where both measures passed.

Also in 2022, the Arkansas State Board of Election Commissioners disqualified a marijuana legalization initiative because the ballot title did not convey all impacts of the initiative. An appeal to the State Supreme Court was pending as of Sep. 9).

5. Delay Approval of Petition Language
In Missouri in 2019, opponents of a law restricting abortions sought to repeal it via ballot initiative. GOP Secretary of State Jay Ashcroft stalled vetting the language, leaving an impossibly short two-week window to gather signatures. The initiative backers sued and won when a court ruled Ashcroft’s obstruction was unconstitutional.

6. Ban Residents from Signing a Petition Across State Lines
Vetoed by the governor in 2021, an Idaho bill prevented people from signing petitions outside of Idaho, would impact students, active military members, and religious missionaries.

Map courtesy of Ballotpedia

II. Erect Barriers to Passage

7. Require Supermajorities
After a series of progressive policies adopted via ballot initiative, Arizona legislators introduced bills requiring a 60% supermajority to pass future initiatives and an extreme 67% supermajority for future tax laws. Though these bills failed, legislators placed a referendum on the 2022 ballot requiring 60% approval for tax initiatives, which passed by a one percent margin. Similar bills requiring supermajorities for ballot initiatives were defeated by voters in 2022 in Arkansas and South Dakota. Supermajority requirements are in effect in Florida, Mississippi, and Nevada.

8. Manipulate Voting Dates
After Oklahomans successfully petitioned for an initiative to legalize marijuana, Governor Kevin Stitt (R) called a special election for the cannabis measure in March of 2023, even though the state already had elections scheduled on both Feb. 14 and  April 4.  The measure was rejected by a 22-point margin. Though it clearly was not a decisive factor, such stand-alone elections typically skew toward older, whiter voters.

III. Prevent or Sabotage Implementation

9. Delay or Defund
After Missouri voters expanded Medicaid in 2020, state Republicans continue attempting to defund the expansion, even as program delays prompts federal regulator intervention and maternal mortality in the state sores. Missouri lawmakers also sought to delay minimum wage increases adopted by voters in 2018, which benefits low-income and minority workers.

10. Preempt or Refuse to Implement
In Idaho, state legislators passed a law preempting an initiative on the fall ballot, causing the initiative’s organizers to pull the bill. The legislators’ new law would repeal the initiative if it were adopted by Idaho voters.

In 2021, Missouri legislators refused to implement a Medicaid expansion law passed via voter initiative the previous year. In 2018, Maine Republican Governor Paul LePage refused to implement a voter-adopted Medicaid expansion package, which was overwhelmingly approved by an 18-point margin. LePage defied a State Supreme Court directive to implement the initiative. Only after the governorship changed two years later was the initiative implemented.

11. Override Citizen Votes 
Just six years after Montanans voted overwhelmingly to keep Election Day registration, Republican legislators rendered these votes meaningless by doing away with the practice in 2021.

More than 12,000 voters used Election Day registration in 2016, comprising 2.3% of the statewide vote. In Arizona, Republicans bucked voters who increased taxes to fund education via ballot initiative in 2020 by seeking to exempt some businesses from this tax increase.

A Kansas bill introduced in 2023 would allow local municipalities to restrict abortion, after courts protected the right in 2019 and voters preserved the right again in 2022 by striking down a restrictive ballot measure.

12. Alter the Intent of Successful Initiatives
After paying their dues for a conviction, 20 people across Florida applied for and were granted voter registration under Amendment 4, a constitutional amendment restoring voting rights of most felons, which was adopted by 65% of Florida voters in 2018. After exercising their supposedly restored right, they were arrested by state law enforcement for voter fraud, as Florida Republicans hamstrung voters’ choice and slipped additional language into the amendment stating fees and restitution must also be paid. There exists no database to check for unpaid liabilities, leaving an estimated 85,000 Floridians in voting limbo. A judge called the fiasco an “administrative nightmare.”

In 2020, Montanans passed a recreational marijuana initiative. State Republicans changed voters’ intent, to benefit state conservation programs, and instead directed revenue into addiction recovery and economic development.

In 2018, Utah citizens voted to expand Medicare via ballot initiative; a year later, Republican legislators replaced the voter-adopted proposition with their own bill, which is estimated to cost five times more than the original proposition.

When Arizona legislators sought to pass Proposition 128 in 2022, allowing state lawmakers to amend voter-approved ballot initiatives, nearly two-thirds of voters rejected the proposal.

Related Reading

The Escalating Attacks on Citizen Lawmaking commentary by Reclaim Democracy! founder for Governing

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