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Citizen Lawmaking Is Under Attack as Regressive Lawmakers Work to Suppress Democracy

February 3, 2024 by staff

Citizen lawmaking via state ballot initiatives is overwhelmingly popular with people across political spectra and has no inherent bias, but in the wake of citizens using initiatives to counter Republican extremism in recent years, GOP legislators have unleashed a wave of bills to obstruct the process. These tactics fall into three categories: keeping initiatives from reaching the ballot, impeding passage, and altering voters’ intent post-passage. 

Every Western state in the Lower 48 except New Mexico enables citizens to make laws directly, a vital check on legislators who refuse to act on pressing issues. As a result, Montanans’ water is protected from cyanide leach mining, thousands of Idahoans can access needed health care via Medicaid expansion, and documented immigrants in Arizona gained in-state tuition rates at public colleges.

The surge in Republican attacks seems driven by alarm over pro-choice voters winning in all six states where abortion ballot questions appeared following the U.S. Supreme Court’s regressive majority overturning Roe v Wade in 2022, including GOP strongholds like Montana, Kansas, and Kentucky. In November of 2024, Arizona and Florida voters will likely vote on whether to overturn abortion bans imposed by legislators despite overwhelming support for bodily autonomy among residents (e.g. sixty-four percent of Floridians say abortion procedure should be legal in most or all cases). Up to nine states may have abortion on the ballot this fall.

But direct democracy has no partisan bias. Empowering voters sometimes favors conservative causes. In Colorado, for example, 65 percent of voters approved a 2022 initiative cutting state income taxes and passed another measure saying only U.S. citizens may vote in the state.

Looking beyond policy outcomes, suppressing ballot initiatives invites turmoil. The process serves as a safety valve, giving citizens a constructive option when legislatures defy constituents. This is especially valuable when ousting incumbents in “safe seats” is nearly impossible due to gerrymandered districts. 

Much of the current GOP policy agenda is deeply unpopular, even among their voters, but rather than listening to constituents or moderating policies, stifling constituents has become the norm (in more ways than one). Montana Senate Bill 93, passed last year, would have forced citizen groups to pay a $3,700 filing fee just to start a petition drive (a Montana court struck down that portion of the law in early 2024) while giving state officials the power to reject a proposed initiative if they deemed it similar to any that failed within the previous four years. 

After defeating an initiative to cap homeowner taxes in the previous election, powerful corporate lobbying groups like the Montana Chamber of Commerce and Association of Realtors backed the proposed barriers to direct democracy. Democratic State Representative Kelly Kortum calls the bill, “An attempt to strip Montanans of the ability to make laws themselves.”

In Idaho, the GOP introduced a resolution to amend the state constitution to accomplish voter suppression the state supreme court struck down just two years ago. It would require initiative backers to gather in-person signatures from six percent of voters in all of Idaho’s 35 districts–doubling the current 18-district requirement and requiring the assignment of signature gatherers to small towns nine hours from the state capital of Boise. Luke Mayville of Reclaim Idaho, the grassroots organization behind the 2018 initiative that expanded Medicaid coverage, says such restrictions “would render citizen initiatives impossible.”

While that bill appears dead for the current legislative session, several other states are pushing related tactics that impede signature-gathering and give outsized power to rural areas.

Even without an impossibly short window, extreme signature-dispersal schemes proposed in Idaho and other states would grant corporations the power to prevent voters from ever seeing a measure disfavored by big business. That threat exists thanks to the U.S. Supreme Court creating a First Amendment “right” for corporations to spend unlimited sums influencing ballot questions, in 1978 (First National Bank of Boston v Bellotti).

In Nevada, NV Energy spent $63 million to thwart an initiative that aimed to end its electric monopoly. With extreme signature-gathering requirements, corporations could prevent the public debate ballot questions provoke by coopting or propagandizing voters in a single district (to deter residents from endorsing an initiative). This would be easily accomplished in rural districts where gaining endorsements from six percent of voters already is burdensome. 

Direct democracy in the West arose largely through citizens fighting the corruption of state legislatures by mining, railroad, and timber interests — especially in Montana). South Dakota led the way in 1898, followed rapidly by Oregon, Montana, and now 24 total states. So laws that would enable corporations to stifle citizen initiatives before they reach the ballot completely betray that original intent.

The merit of citizen lawmaking is one point of broad agreement among citizens of differing party loyalties and ideologies. This vital tool is under increasing attack, and it’s up to all of us to defend our right to self-governance from politicians who seek to elevate their power at the expense of their constituents.

Jeff Milchen is a board member of Reclaim Democracy!

Editor’s note: we’ve been warning of the escalating attacks on citizen lawmaking for years and are pleased to see have been opened as the sabotage attempts became more glaring in 2023. Our previous reporting has appeared in Jacobin and Governing, among others.

Filed Under: Voting Rights Tagged With: direct democracy, Election Law, voter suppression, Voting Rights

Reclaim Democracy! Commends the Introduction of Federal Voter Protection Bills

July 18, 2023 by staff

September 2023

The Freedom to Vote Act (FTVA) and the John Lewis Voting Rights Advancement Act (VRAA) are imperative bills to pass through Congress in light of ongoing attempts to pass restrictive, anti-voter bills. At least 14 state legislatures enacted 17 restrictive laws during the first nine months of 2023 erecting barriers for eligible voters and disproportionately impacting voters of color, youth, and those with limited mobility. State legislatures continue impeding our ability to vote and have our votes count equally through gerrymandering, voter roll purges, and more than 50 other tactics Reclaim Democracy! has identified across the states. We call on Congress and President Biden to do everything in their power to ensure passage of both the FTVA and VRAA.

Along with protecting citizens from being denied their vote, the FTVA includes key actions to shrink the influence of big money in politics, guarantees congressional districts provide fair representation for all, and creates national standards to ensure the integrity and security of federal elections.

See summaries from the Brennan Center for Justice for detailed information on both the FTVA and VRAA.

Reclaim Democracy! is among more than 250 allied pro-democracy organizations united via Declaration for American Democracy to advance such voter protection measures.

Finally, we must recognize a hard truth: when our ability to vote depends on politicians who control the levers of power in our state, voting is merely a vulnerable privilege and not a right. Ultimately, we must amend our Constitution to embed an affirmative right to vote and ensure our votes count equally. 

Filed Under: Voting Rights Tagged With: Election Law, voter suppression, Voting Rights

Citizen Lawmaking Under Assault

October 1, 2022 by staff

Many GOP State Legislators Are Sabotaging the Ballot Initiative Process

By Jeff Milchen
February 19, 2023

American voters often waver from one election to the next between electing majorities of Republicans or Democrats to Congress or their state legislatures, yet the results of ballot initiatives remain remarkably predictable. Last November’s outcomes results again showed a majority of voters — even those in deep-red states — favoring progressive policies when voting on individual issues rather than voicing their party identity.

But instead of accepting those outcomes as guidance to better represent their constituents, many Republican legislatures are trying to obstruct or neuter citizen lawmaking.

Last year, pro-abortion-rights voters won in all six states with questions on the ballot (the most ever on the topic), including the GOP strongholds of Kansas, Kentucky, and Montana. That success has advocates exploring ballot measures to amend state constitutions in a dozen or more states.

In other initiatives, voters abolished involuntary servitude as a punishment (Alabama, Oregon, Tennessee, and Vermont) and raised minimum wages (Nebraska, Nevada, and the District of Columbia). South Dakota became the seventh state (and the sixth under GOP control) to expand Medicaid via citizen initiative. And Michigan voters embedded reproductive rights and voter protection principles in the state constitution.

Two Republican officials on Michigan’s Board of State Canvassers initially blocked both of those initiatives from the ballot. Though supporters gathered a record 735,000 petition signatures for the reproductive-rights measure, the two officials claimed that inadequate spacing in the fine print of ballot petitions was disqualifying and voted to disqualify the voting rights initiative on another technicality. The initiatives’ backers filed lawsuits, and thankfully the Michigan Supreme Court ruled in both cases to prevent the sabotage and enable citizens to vote on the issues. 

Twenty-four states enable proactive initiatives while two additional states enable citizens to nullify laws, but not enact new ones. Around the turn of the century, progressive initiatives began outnumbering conservative ones, and 2022 yielded victories on a wide range of progressive causes. But Republican politicians increasingly deem this an unacceptable intrusion into their powers and push bills to undermine ballot initiatives on three different fronts: erecting barriers to initiatives reaching the ballot, making passage more difficult and corrupting voters’ intent post-passage. 

Last year, Ballotpedia counted a record 232 state bills impacting ballot measure processes, of which 23 passed. The Ballot Initiative Strategy Center (BISC), a nonprofit advocate for citizen lawmaking, listed 140 of those bills as impeding citizen initiatives. And the attacks are unrelenting: Missouri Republicans introduced a dozen such bills this January alone.

Ohio Republicans, meanwhile, proposed legislation to radically increase signature-gathering costs and require a 60 percent supermajority vote for constitutional initiatives. The author of the latter bill openly declared his intent: to block a forthcoming citizen initiative expanding reproductive choice. Also motivating the attack is an initiative to create an independent redistricting commission, which would neutralize gerrymanders that effectively ensure a Republican majority in the legislature. (In an unusual plot twist, a leading advocate for the initiative is Maureen O’Connor, a Republican and former Ohio Supreme Court chief justice.)

Roadblocks to citizen lawmaking may be making their intended impacts, as just 30 initiatives made state ballots in 2022 — the fewest this century. 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 standard practice. By nixing a key incentive for workers to gather more signatures than they would if paid only an hourly wage, the law will hike both the cost and duration of campaigns to qualify a ballot measure. “Qualification challenges, courts blocking measures, and onerous restrictions” all contributed to the decrease, says Chris Figueredo, executive director of BISC.

total number of annual state citizen initiatives  201-2022
Graphic courtesy of Ballotpedia

Unlike direct voter-disenfranchisement tactics, the escalating assaults on direct democracy have generated few headlines. But regardless of our policy preferences, ballot initiatives provide a vital safety valve, giving citizens a tool to bypass unresponsive legislatures that ignore or defy their constituents. This corrective power is especially vital today, as gerrymandering makes dislodging officeholders in safe seats nearly impossible.

Despite the preponderance of progressive ballot victories, direct democracy is a nonpartisan, pro-democracy tool popular with citizens across the political spectrum. Two-thirds of the 24 states with proactive citizen initiatives typically have had trifecta Republican control of state government. In Colorado, which flipped from GOP control of all branches of government in 2004 to a Democratic trifecta today, 65 percent of voters supported a 2022 initiative to cut state income taxes. And when Californians voted for President Joe Biden by a 29-point margin in 2020, conservative positions prevailed on several ballot questions. If more state legislatures flip to Democrats, conservative initiatives undoubtedly will serve as a check on their power as well. 

The election results of 2022 demonstrated that citizen initiatives unite voters with differing party loyalties to advance common interests, often addressing issues where legislators decline to act. The threats to citizen lawmaking should be resisted in favor of protecting one key avenue to ensure frustrated voters a constructive way to engage and progress toward inclusive democracy.

Jeff Milchen is the founder and a board member of Reclaim Democracy! Follow him on Twitter: @JMilchen. A shorter version of this commentary was first published by Governing.

See also: Tactics GOP Legislators Are Using to Undermine Direct Democracy

Filed Under: Uncategorized, Voting Rights Tagged With: Ballot Initiatives, direct democracy, voter suppression, Voting Rights

Securing Votes Without Building Barriers

May 4, 2022 by staff

By Jeff Milchen
May 4, 2022
First published in the Billings Gazette and Bozeman Chronicle.

Just weeks ago, Yellowstone County Judge Michael Moses blocked four recent Montana voting restriction laws from taking effect for this year’s elections. A full decision on the law’s constitutionality is yet to come, but Republican plans for a special legislative session (largely to promote false “election fraud” claims) collapsed after the preliminary ruling.

Yet Montana does have reason to improve one aspect of securing elections in which we lag behind most states: keeping voter rolls free of duplicate or ineligible registrations.

Unknown to most U.S. residents, a system to keep voter rolls current has operated effectively for a decade. Created in 2012 through collaboration among several states and the Pew Charitable Trusts, the Electronic Registration Information Center (ERIC) is a non-profit, non-partisan consortium managed and financed through voluntary membership by 31 (now 27) U.S. states and the District of Columbia.

Participating states regularly upload voter registration and motor vehicle license records through a secure, encrypted process. ERIC amasses the state data, then identifies and reports back any inaccuracies or duplicates, flags who moved, who died, and who is eligible to vote but isn’t registered. It’s a one-stop solution to guarantee highly accurate voter rolls.

ERIC can even identify illegitimate votes. Among the 14.6 million mail ballots cast during the 2016 and 2018 elections, ERIC flagged 372 likely cases of double voting or someone casting a deceased person’s ballot. That’s 0.0025 percent of votes cast. 

Between 2012 and 2018, ERIC identified 10 million registered voters who moved–the most common cause of voter roll inaccuracies–or appeared on more than one voting list. ERIC is the only reliable tool to learn whether any person cast ballots for the same election in different states.

Yet for all the professed Republican concern about voter fraud, Montana is not among the majority of states (split between Republican and Democratic-leaning) participating in ERIC. Why have Montana Republicans not taken this simple step to actually increase election security? And why have you not heard reporters asking politicians that question?

It’s not about cost. Montana’s annual dues to ERIC would be about $25,000 next year–a fraction of the legal costs Republicans imposed on taxpayers by passing election laws certain to be challenged by Indigenous, youth, or disability rights groups whose constituents are targeted. 

ERIC Map
ERIC Map with recent GOP state resignations, as of March 21, 2023

Editor’s note and update: while this op-ed was produced for Montana newspapers, the arguments apply for all states that are not yet part of ERIC. If your state is not among these members, we’d love to help you engage your state officials. Current ERIC members (as of March 17. 2023) are: AK, AZ, CO, CT, DE, FL, GA, IL, IA, KY, ME. MA, MD, MI, MN, MO, NV, NM, OR, PA, RI, SC, TX, UT, VT, VA, WA, WV, WI, and Washington, D.C.

With ERIC’s successful track record, no state had ever dropped out until Louisiana’s Secretary of State withdrew in January. Then 2022 Republican candidates for Secretary of State in Ohio and Alabama declared they’d withdraw from ERIC if they gained power. The excuse to sabotage genuine election integrity stems from fabricated and easily disproved allegations about ERIC published by the far-right Gateway Pundit blog.

So what motivates these baseless attacks? ERIC doesn’t just identify eligible unregistered voters–it obliges member states to contact those people and offer them the opportunity to register. It seems many GOP attacks on ERIC are motivated by the opinion that expanding democracy is an unacceptable requirement. Or perhaps eliminating the rare instances of illegal votes is not desirable to some vote suppressors, as that would weaken their justification for promoting more than 50 voter suppression tactics across U.S. states.

Steve Daines, Matt Rosendale, and other Montana GOP members all have been accomplices in undermining faith in our elections and our public servants. Daines’ treachery includes texting his supporters to falsely claim “Dems are stealing the election,” after Trump lost the 2020 election by over seven million votes. They all are culpable for helping incite the violent attack against our republic on January 6 of last year. 

The GOP instilled doubt in election security among followers by spreading unrelenting lies, then used those doubts to justify laws erecting voting barriers for youth, Indigenous Montanans, and others they prefer not vote. Indigenous and youth advocates are among those who successfully sought to block the voter suppression tactics from taking effect. 

In case repeated lies about the 2020 elections are more vivid than the truth, the U.S. Cybersecurity and Infrastructure Security Agencies (then-controlled by Trump appointee Chris Krebs) told us the 2020 election was the most secure in American history and, “There is no evidence that any voting system deleted or lost votes, changed votes, or was in any way compromised.” 

Let’s call on Montana officials to stand up for voters reject the escalating assault on democracy. Joining ERIC is an administrative decision, so Montanans should ask Governor Gianforte and Secretary of State, Christi Jacobsen, to take this one simple action to advance their professed desire for more secure elections.

Failure to act would tell us all we need to know about their credibility.

Jeff Milchen (@JMilchen on Twitter) is a board member of the Montana-based Reclaim Democracy!

Along with our web page, you can share this 2-minute video that explains ERIC well. This FAQ (pdf) goes into more depth on ERIC’s operations

Filed Under: Voting Rights Tagged With: voter suppression, Voting Rights

Voting Rights: We Need Immediate Action AND Long-Term Strategy

November 26, 2021 by staff

Last updated February 11, 2023

Pro-democracy groups are urging people to support at least three essential bills in Congress:

  • The Freedom to Vote Act (slated for reintroduction by May of 2023)
  • The John Lewis Voting Rights Act
  • The Washington, D.C. Admission Act, which would grant voting rights to D.C. residents by making the District a state (the Supreme Court has shut down every other option). 

Each bill is truly necessary and urgent. We urge you to lobby your Senators for their immediate passage and do all you can to make your voice heard through other channels. Yet we are deeply concerned that the approach of focusing on legislative fixes alone does not capture the imagination of Americans and engage them to the degree we need. So, while we wholeheartedly urge passage of the three bills noted above, we also continue building support for a Right to Vote Amendment for three reasons:

  • We need one, clear, compelling message that overwhelming numbers of Americans can support and convey concisely: every citizen must have a right to vote and have their votes count equally.
  • While bills in Congress may change language, names, and even bill numbers, getting commitments from our legislators to support an affirmative right to vote will help hold them accountable to support all voting rights bills.
  • Crucially, advances made solely through legislation can be undone by Congress and by courts. If a neutral person were to look at our 1965 Voting Rights Act, they would conclude we have strong protections that would make many provisions of current legislation unnecessary. Yet the Supreme Court stripped the Voting Rights Act of meaning in 2013 and has become more anti-democratic in subsequent years. A constitutional Amendment expanding civil rights has never been revoked.

If you have not yet contacted both of your U.S. Senators on these bills, please do so today. Let them know the anti-democratic filibuster cannot be used as an excuse to enable the denial of voting rights. You can always reach any U.S. Senator or Representative’s D.C. office via the Capitol switchboard: 202-224-3121. #NoMoreExcuses 

See the links above to great bill summaries by the Campaign Legal Center and Brennan Center. For more on the Washington, D.C. Admission Act and all current Senate sponsors, see D.C. Statehood Coalition.

Additional Resources

50+ Ways to Disenfranchise and Suppress Voters

Landmarks in Voting History & Law

Key Elements of a Right to Vote Amendment

Filed Under: Activism, Uncategorized, Voting Rights Tagged With: voter suppression, Voting Rights

Dying to Vote (And a Warning for November)

April 7, 2020 by staff

By Jeff Milchen
April 7, 2020

Three years ago today, Mitch McConnell and the Republican Party completed the heist of the century — confirming Neil Gorsuch to occupy a U.S. Supreme Court seat held open for more than a year. Now Gorsuch’s decisive vote is forcing thousands of Wisconsin citizens to make an unconscionable choice: sacrifice your vote or risk your life to be counted.

Accurately describing yesterday’s malicious ruling by the Court is almost impossible to do without sounding hyperbolic. By a 5-4 vote, the Justices ruled that voters who requested an absentee ballot, but have not yet received it (at least several thousand citizens), must line up with masses of people to vote in-person. This despite a statewide order banning non-essential travel and gatherings of more than 10 people. So people not only are forced to choose between being disenfranchised and risking COVID-19, but must violate a State order to go to the polls!

The SCOTUS sided with Republican Party plaintiffs in reversing a U.S. District Court ruling that extended the deadline for absentee ballots — it gave voters one week after today to receive and return absentee ballots. That followed Wisconsin Republicans refusing to approve a plan to send ballots to all registered voters. Instead, citizens had to request ballots individually, and more than one million did, leaving the State completely unable to fulfill the requests.

The Republicans’ disenfranchisement tactics aren’t motivated by intra-party primaries, but a hotly contested State Supreme Court contest and other “non-partisan” races.

Extreme gerrymandering enabled Republicans to control the Wisconsin legislature despite being beaten by 10 percent of total votes in the 2018 elections. A State Supreme Court not dominated by Republican judges would likely strike down those gerrymanders, driving the imperative to close the circle by suppressing voters likely to vote for Democrats. 

When politicians choose their voters, entire elections are undermined. In the 2020 Wisconsin State Assembly race, Democrats received 200,000 more votes than Republicans; however, Republicans swept seats.

Governor Tony Evers convened a special session of the legislature in hope of forging a bipartisan agreement to postpone the election and enable voting by mail, but Republicans refused to consider any action.

As if being forced to vote in person during a pandemic isn’t hellish enough, Milwaukee will open no more than five out of a normal 180 polling places today. It seems most poll workers weren’t eager to risk their lives for some extra pocket money. With projected turnout, 10,000 or more voters could jam the locations, making safe “distancing” impossible.  

Image by The Onion

In Milwaukee County, more than 1300 residents have COVID-19 cases and 45 have died. As of Friday, 81 percent of the dead were black, while black and Hispanic residents vastly outnumber whites in the City.

In a separate legal fight that could have eliminated the need for the SCOTUS ruling, Wisconsin Governor Evers issued an executive order yesterday suspending in-person voting until June 9 due to the severe public health threat. But Republican legislators immediately challenged the order with the Wisconsin Supreme Court. In a 4-2 ruling, the Court blocked Evers’ decree and opened the door for the SCOTUS to strike down the absentee voting extension.

No Justice signed their name to the SCOTUS’ majority opinion, which is no surprise to anyone who reads the wafer-thin reasoning. The majority declared extending the date by which absentee ballots could be received and counted violates the Constitution because it “fundamentally alters the nature of the election” too close to Election Day. Apparently, voters failing to receive a ballot does not rise to the level of election-altering.

The majority opinion by Justices Roberts, Alito, Gorsuch, Kavanaugh and Thomas mentions the COVID-19 pandemic only in closing and slinks away from the fundamental issue by saying, “the Court should not be viewed as expressing an opinion on the broader question of whether to hold the election, or whether other reforms or modifications in election procedures in light of COVID–19 are appropriate. That point cannot be stressed enough.” Don’t forget: these Justices cancelled hearings as of April to ensure their own safety.

The denial of responsibility directly echoes Bush v Gore, but this time, some voters may catch a virus and die.

Of course, the Republican tactics not only are an assault on democracy in Wisconsin, but a warning for our national elections this fall. Donald Trump repeatedly has attempted to undermine confidence in elections, raised baseless claims that mail-in voting would invite voter fraud, and endorsed numerous schemes to disenfranchise poor people and minorities. 

Map of states with mail-in voting
Graphic by Daily Kos

And five Supreme Court Justices have proven they’re willing to ignore clear evidence of discriminatory impacts to poor and minority citizens — at least without video of the perpetrators confessing racist intentions. 

While most Americans already are challenged by the daily grind of staying afloat financially while surviving a pandemic, planning to thwart corruption like Wisconsin’s in the November election is essential. One place to start is checking to see if your state has (at least) no-excuse voting by mail and, if not, loudly demanding it (or universal vote-by-mail). Publicizing potential pitfalls with mail-in-voting is also essential to plan ahead.

And while it won’t be achieved this year, those of us who value democracy need to stop solely playing defense against the endless array of vote suppression tactics devised by Republicans. We should shift significant energy toward driving an affirmative right to vote into the U.S. Constitution via Amendment. Working to place it in each state’s Democratic, Green and other party platforms this year is a fine first step in that process. 

Jeff Milchen founded Reclaim Democracy! He is an organizer, speaker ,and writer helping to advance entrepreneurship, grassroots democracy, and self-reliant communities. Engage him on Twitter at JMilchen

Recommended Resources:

Books
  • The Hidden History of the War on Voting by Thom Hartmann
  • Election Meltdown by Richard L Hasen
Articles
  • 50 Ways to Suppress and Disenfranchise Voters
  • Trump Won’t Steal the Election, but Your Governor Might by Elie Mystal
  • We’ll Need Vote-by-Mail in November. And It Could Be a Legal Nightmare by Edward B Foley
  • Trump is Wrong About the Dangers of Absentee Ballots by Rick Hasen
  • Protecting Our Elections During the Coronavirus Pandemic by Elizabeth Warren
  • The cycle of disenfranchisement in Wisconsin is detailed well by columnist Will Bunch
  • In Election Law Blog, Richard Pildes of the right-wing Federalist Society defends SCOTUS’ Wisconsin ruling

Filed Under: Uncategorized Tagged With: right to vote, SCOTUS, voter suppression, wisconsin

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