ATTACKS ON THE BALLOT MEASURE PROCESS:
In 2015 BISC began implementing a proactive, long-term strategy co-created with state leaders to achieve progressive policy wins and build lasting, equitable power on the ground through ballot initiatives.
We’ve been successful, so it’s no surprise that we’ve been seeing a steep rise in ballot measure process bills in state legislatures. Efforts to undermine and weaken ballot measures have been increasing since the 2016 election in response to progressive wins at the ballot box. In many states, politicians and wealthy special interests are trying to make it harder for voters to propose and pass ballot initiatives under the cover of so-called “reforms.” These attacks are coordinated and they have become more nuanced, sophisticated, and would have deeper impacts on the initiative process. These restrictive measures take a variety of forms, but they all serve the same function: to undermine the will of the people and diminish their decision-making power.
In 2017, BISC monitored just 33 bills to restrict or alter direct democracy. During the 2022 legislative session, BISC monitored 109 bills intended to alter the citizen initiative process.
Six measures to change or restrict the ballot measure process were on state ballots in 2022.
BALLOT MEASURE THREATS FROM 2022 LEGISLATIVE SESSIONS:
Spotlight on Arizona:
The Three Initiatives that Would Weaken Initiatives:
- 60% Supermajority for tax increases [Proposition 132]
- Legislative Alteration of Ballot Initiatives [Proposition 128]
- Single Subject Ballot Initiative [Proposition 129]
If passed by voters, the three measures on Arizona’s 2022 ballot would have significantly weakened direct democracy in the state and jeopardized all future initiatives. The trio of initiatives were all referred to voters by the GOP-run legislature.
Arizona’s state constitution currently contains strong protections that limit the legislature’s power to repeal or amend initiatives that have already been approved by voters. This is because Arizonans approved the Voter Protection Act in 1998 — a voter-initiated constitutional amendment that prohibits lawmakers from modifying any voter-initiated statute unless their change “furthers the purpose” of the initiative itself.
Arizona also has a strong system of direct democracy due to the fact that there is no requirement that initiatives be limited to a “single subject,” meaning voters can propose sweeping progressive changes at the ballot that aren’t limited in their scope. However, the three initiatives appearing before voters this November would overturn many of those protections.
The first proposed initiative, Proposition 128, would have amended Arizona’s constitution to widen the circumstances under which legislators may repeal or amend a ballot measure — even after it’s been approved by voters. One lawmaker in the state explained that the proposition is “a very sneaky way to undermine the Voter Protection Act without actually having to repeal the Voter Protection Act.”
The second initiative, Proposition 129, would have imposed a “single subject” rule for all voter-initiated measures, yet it would not have imposed any such requirements on amendments proposed by the state’s legislature. If enacted, this initiative would have functioned as yet another tool for the state’s GOP-packed Supreme Court to invalidate voter initiatives.
The third initiative, Proposition 132, would have raised the approval threshold from 50% to a supermajority of 60% for any voter-initiated measure related to raising taxes.
Spotlight on Arkansas:
Protect AR Rights is a citizen-led effort working to ensure that Arkansans’ constitutional right to petition for measures to appear on the ballot is protected. The current initiative process ensures that all Arkansans — not just politicians and the lobbyists who back them — have a say over the policies placed before voters.
Protect AR Rights is leading the fight against Issue 2, a constitutional amendment that was introduced by legislators as a clear attempt to make it nearly impossible for Arkansans to exercise their Constitutional right to petition our government. If approved, Issue 2 will end citizen rights to pass ballot measures with a 50% majority vote, raising it to a 60% vote requirement instead.You can find out more about the movement to Protect AR Rights, plus volunteer or chip in to help defeat Issue 2 at Protectarrights.org.
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 legal challenges in 15 states.
In late August, the Arizona Supreme Court affirmed a lower court’s decision that disqualified the Arizonans for Free and Fair Elections measure from the November ballot. The court’s decision hinged on which signature calculation the lower court used. Initially, the lower court determined the Arizonans for Free and Fair Elections campaign submitted enough signatures to qualify, then reversed its determination when asked to explain its decision by the state supreme court. This reversal is unprecedented and hard to explain, especially as it came after the campaign submitted more than twice the required number of signatures and the signatures were declared sufficient by the Secretary of State.
The case arose from a signatures challenge launched by Arizona Free Enterprise Club, a very active and litigious conservative advocacy group that also challenged the signatures for the Voters’ Right to Know measure. (That signature challenge was unsuccessful, and the Arizona Supreme Court ruled that the Voters’ Right to Know measure was qualified for the November ballot.) Arizona Free Enterprise Club was also involved in the lawsuit that led to the judicial repeal of Prop 208—a high earner tax to fund education that was approved by voters in 2020.
Arizona stands as an unfortunate example of why BISC’s Defend Direct Democracy campaign exists. In nearly every legislative session since 2016, legislators have introduced, advanced, and passed bills that restrict the people’s access to their initiative power. In turn, every vulnerability in the initiative process created by these restrictive bills is exploited by those opposing the popular, progressive policies proposed through initiative. The urgency of the moment only encourages us at BISC to continue the fight for the right to direct democracy everywhere.
The Responsible Growth Arkansas measure will appear on the ballot, but it remains to be seen whether the votes on the measure will be counted, according to a recent Arkansas Supreme Court decision. The Responsible Growth Arkansas campaign filed suit in the state supreme court after the State Board of Election Commissioners rejected their initiative’s “popular name” and disqualified the initiative from the November ballot. In Arkansas, proponents of initiatives must provide a popular name for their initiative when they first submit their proposed initiatives to the state and before they collect any signatures. Only after signatures are submitted, have been verified, and are declared sufficient by the state is the popular name reviewed by the State Board of Elections. The penalty for the Board rejecting an initiative’s popular name is that initiative is disqualified from the ballot, and the law explicitly prohibits campaigns from revising their popular names if the Board rejects them.
This law is a perfect example of a procedural trap a legislature adverse to ballot initiatives sets for citizen campaigns. It allows the state to wait until a campaign has fulfilled its obligations, and after voters have said they want to see this issue on their ballots, to pull the rug from under the campaign and the voters. Not only does it allow for last-minute disqualifications, but it also does not allow campaigns to cure any deficiencies. As it is in other states where the legislature is opposed to the people’s initiative power, the Responsible Growth campaign must now rely on a favorable decision from the supreme court to see whether votes on the measure will count.
The Michigan Supreme Court has ensured that measures to expand voter access and to guarantee a right to reproductive freedom will appear on the ballot in November. The Promote the Vote and Reproductive Freedom For All campaigns filed lawsuits against the Board of State Canvassers when it neglected to certify their initiatives for the ballot, even after the campaigns were determined to have submitted the required number of signatures for ballot qualification. The Board, which is staffed by two Republicans and two Democrats as required by law, has failed to certify at least 4 measures in recent years as its members have seemingly become more partisan.
The Michigan Supreme Court ordered the Board to certify both measures and reminded the Board of the limits of its position: The Board is not to decide on the legal sufficiency of a measure’s language but is solely empowered to certify measures if the required number of signatures are submitted and the petitions are in the proper form.
The Missouri Supreme Court has declined to hear a challenge to the Legal Missouri 2022 measure, which clears the path for the measure to appear on the November ballot. The measure was originally challenged in Cole County Circuit Court by opponents to recreational marijuana who claimed the measure did not have sufficient signatures and the measure violated the state’s single subject rule. The lawsuit asked the court to order the Secretary of State to reverse his decision to certify the measure for the ballot. Despite losing in both Cole County Circuit Court and the Court of Appeals, the anti-decriminalization opponents attempted to keep the measure tied up in a third round. By declining to hear this case, the Missouri Supreme Court leaves the power to decide on the merits of the policy where it should be: in the hands of the voters.
The Nevada Supreme Court ruled that a statutory measure to create a school voucher program cannot appear on the ballot. In June, the court ruled that the constitutional amendment that proposed the same voucher program could not reach the ballot because it did not provide a funding mechanism as required by law. This decision fully concludes this cycle’s threat to education funding with a win for public school students and faculty and the safeguarding of their resources.
Yes on 820, the campaign supporting a marijuana legalization and decriminalization initiative, filed a lawsuit in Oklahoma Supreme Court as it became clear that state delays could keep their initiative off the ballot. After the Yes on 820 campaign turned in signatures on July 5th, the state took an uncommonly lengthy 48 days to verify the signatures. For comparison, the state verified signatures for a medical marijuana initiative in a third of the time it took them to verify the Yes on 820 signatures, even though the medical marijuana campaign submitted nearly twice as many signatures. The delay is due to the Secretary of State’s office contracting out its duty to verify signatures to a private firm. For now, and throughout the terms of the contract, the will of the Oklahoman voters will be at the mercy of a private firm of seemingly questionable competence.
In addition to the procedural delays caused by the state, four separate state supreme court challenges were filed against the measure: two to the validity of the petition signatures and two to the ballot title. The two challenges to the signatures were dismissed by the state supreme court on September 16, but the two challenges to the ballot title remain. As the date to begin printing ballots is September 23, it is imperative that the Oklahoma Supreme Court soon makes a decision on whether the measure should be included on the November ballot.