ATTACKS ON THE BALLOT MEASURE PROCESS:
Attacks on the ballot measure process include proposed legislation to make the ballot process harder to access, increased legal challenges, and direct efforts to repeal the will of the voters by weakening or refusing to implement ballot measures that have already been passed by voters.
These attacks have been increasing since the 2016 election, as state lawmakers in Republican-led states want to take the tool of direct democracy away from the People. The attacks against the ballot measure process are coordinated, and they are becoming more sophisticated, and would have deeper impacts on the initiative process.
Now, GOP legislators are enacting legislation to make the ballot process harder to access while also engaging in direct efforts to repeal the will of the voters after ballot measures have already been passed. The Republican State Leadership Committee and other conservative organizations like The Opportunity Solutions Project have asserted their determination to make sure ballot measures are no longer a viable tool for progressives.
BALLOT MEASURE THREATS
ON OUR RADAR
Top States to Watch:
There are a large number of direct democracy attacks in Arizona, Florida, Missouri, Montana, South Dakota, and Mississippi. Some of the top threats BISC is tracking include:
Arizona: More than a dozen bills seeking to limit and create barriers to the ballot process — and block the full implementation of Proposition 208 — were introduced in Arizona during the 2021 legislative session. Of those, four were enacted and two were referred to voters. Voters will consider creating a single subject rule and the repeal of the Voter Protection Act, which protects ballot measures from being altered after they are approved.
Florida: There were five bills threatening the ballot initiative process that were introduced during Florida’s 2021 legislative session. Legislators in Florida are also looking to block implementation of the state’s minimum wage increase initiative that was approved by voters in 2020.
The Florida legislature enacted SB 1890, a law that limits contributions to ballot measure campaigns to $3000 during the signature gathering phase. On July 1, Judge Winsor (US District Court, Northern District of Florida) ruled that the $3,000 contribution limit violates Floridians First Amendment right to political speech. Judge Winsor granted the plaintiffs motion to stop the law from going into effect.
The Florida legislature has also filed a bill to raise the ballot measure approval threshold to 66.7% for the 2022 session.
Missouri: During the 2021 legislative session, 22 threats to direct democracy were introduced by state legislators in Missouri. The Missouri legislature also passed their budget without providing funding for Medicaid Expansion, which Missouri voters approved through the ballot in 2020. A state judge later ruled that the legislature is required to fund Medicaid, but we are still waiting to see how the legislature will implement funding.
The Missouri House Elections Committee is meeting during the interim and has publicly asserted their priority to raise the ballot measure passage threshold and increase geographic signature gathering requirements.
LEGAL CHALLENGES LANDSCAPE:
Legal challenges are an unavoidable step in the initiative process. Opponents use them to disrupt, stall, or exhaust progressive campaigns. In recent years, Republican politicians have launched legal challenges against progressive initiatives to either block implementation or restrict the initiative process as a whole.
BISC is currently monitoring 15 Legal Challenges across 13 states in various stages of litigation: implementation, campaign, and legislation.
Arizona: A tremendous blow to education funding came down when the Arizona Supreme Court ruled that the Prop 208 funds are “compulsory transfers of tax revenue” and not grants, directly contradicting the ballot language. Grants are not subject to the state’s education spending cap. The court went further and determined that if the Maricopa County Superior Court finds that Prop 208 will exceed the spending cap, then the entire law is unconstitutional. Prop 208 is projected to raise an estimated $827 million annually, $600 million above the spending cap.
Mississippi: The Mississippi Supreme Court struck down the entire initiative process, stating that it is impossible to follow as written and that the legislature will have to amend the constitution for it to be workable. The court invalidated the signatures gathered for a medical marijuana initiative and prevented the law, which passed with 74% voter approval, from going into effect. The initiative process is effectively repealed unless and until the legislature amends the state constitution.