The Hot Sheet

WHAT YOU NEED TO KNOW ABOUT THE BALLOT MEASURE LANDSCAPE RIGHT NOW

INTRO 

As of September 21, all signature deadlines have passed for citizen initiated ballot measures. BISC is monitoring 85 ballot measures that are qualified for the 2022 election, 50 of which were referred by state legislators.

BALLOT MEASURES BY ISSUE AREA:

Whether it’s attacks on our democracy, measures undermining the power of governors to act in an emergency, or attempts to undermine direct democracy — democracy is the issue we will be seeing the most of on the November 2022 ballot. Another major trend we’re seeing in this election cycle is the influx of reproductive rights ballot measures.

Ballot measures across every issue area have already qualified for the 2022 ballot. Let’s break it down:

  • Democracy: 20 measures have certified for the ballot 
  • Initiative Process: 6 measures have certified for the ballot. South Dakota’s Amendment C, which sought to weaken the People’s Power by creating a supermajority passage threshold for ballot measures, was defeated by voters
  • Civil Rights: 5 measures have certified for the ballot 
  • Criminal Legal Reform: 12 measures have certified for the ballot 
  • Economic Justice: 12 measures have certified for the ballot
  • Education: 3 measures have certified for the ballot  
  • Fiscal Policy: 8 measures have certified for the ballot 
  • Health Justice: 5 measures have certified for the ballot 
  • Reproductive Justice: 6 measures have certified for the ballot. Michigan’s Reproductive Freedom For All amendment turned in signatures on July 11 and is expected to qualify for the ballot.

ATTACKS ON THE BALLOT MEASURE PROCESS:

What does an attack on direct democracy look like?

Across the country, wealthy special interests and corrupt legislators are trying to undermine the Will of the People by making the process of direct democracy inaccessible. Some tactics used by lawmakers who are attempting to weaken the ballot initiative process include:

  • Proposing legislation to make the ballot process harder to access
  • Bringing forth legal challenges against initiatives that have been already been approved by voters
  • Blocking the implementation of ballot measures that have already passed

In 2017, BISC monitored just 33 initiative process bills. During the 2021 legislative session, BISC monitored 146 bills intended to change the ballot measure process. 21 of 25 bills enacted or referred to voters in 2021 were direct threats to the ballot initiative process.

These attacks are organized, well-funded, and intended to stop bold progressive policies from qualifying and passing at the ballot.

Why are the attacks happening?

There is a clear connection between the legislative and legal efforts to break down the People’s access to the ballot measure process in states with GOP majorities where voters have used the power of direct democracy to pass progressive ballot measures.

It is critical to note that while the volume of these bills is alarming in itself, recent bills are also more sophisticated, and the tactics to undermine the will of the people are more refined than they’ve been in the past.

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 has asserted its determination to make sure ballot measures are no longer a viable tool for progressives.

CURRENT STATE OF ATTACKS:

There are already 6 initiative process attacks on the ballot in 2022, and hostile legislatures across the country are doing everything they can to increase that number.

In 2021, there were 84 measures regarding the initiative process filed through state legislatures to be referred to voters, 19 of which were enacted.

Anti-direct democracy measures on the ballot in 2022 include:

Arizona:

  • Reform Voter Protection Act: Empowering the Legislature to amend, divert funds from, or supersede an initiative or referendum approved by voters when the measure is found to contain illegal or unconstitutional language by the state supreme court or the US Supreme Court.
  • Single subject requirements for ballot initiatives
  • Supermajority vote requirement for tax-related measures

Arkansas:

  • Increasing the voter approval threshold on ballot initiatives from a simple majority to 60%

South Dakota:

  • In South Dakota’s June 2022 primary election, voters rejected Amendment C, which would have required a three-fifths vote of approval for any ballot measures that would increase taxes or fees

BALLOT MEASURE PROGRESS:

Progressive policies are passing at the ballot in Red, Blue, and Purple states such as Florida, Arizona, Missouri, Idaho, Minnesota, and Montana. Through the power of direct democracy, the People are transforming power, advancing racial equity, and galvanizing a new progressive base. 

Through the ballot and the legislature, citizens have passed policies such as: 

  • Minimum wage increases
  • Decriminalization of marijuana
  • Paid Family Leave
  • Medicaid expansion
  • Taxing the wealthy
  • Restoration of voting rights
  • Reparations
  • Transforming public safety

Trends from the Bench:

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. There are three key stages of litigation: implementation, campaign, and legislation.

Implementation: Legal challenge to halt or alter implementation of successful ballot measure. 

Campaign: Legal challenge to halt or delay progress of ballot measure campaign. For example, in Michigan there was a lawsuit seeking to disqualify the anti-emergency powers measure. 

Legislation: Legal challenge to repeal or delay legislation altering ballot measure process. For example, direct democracy advocates in states like Idaho, Florida, Ohio, and Missouri are suing to block laws that undermine the ballot initiative process such as a 60% voter approval threshold, onerous circulator requirements, and individual contribution limits. In a recent win for defending direct democracy, the Idaho Supreme Court upheld the People’s fundamental right to legislate by striking down the increased geographic distribution requirement that the Idaho legislature imposed in the 2021 legislative session.

Examples

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.

History of Abortion on the Ballot Since 1970

Overview

We know that Americans overwhelmingly support access to abortion and reproductive freedom, making it more important than ever for voters to use the power of direct democracy in order to directly influence the future of abortion access. Despite anti-choice lawmakers’ efforts, ballot initiatives have the potential to secure reproductive freedom.

Since 1970, there have been 40 ballot measures related to abortion — 34 have been attacks. Thirty-four attack measures have occurred in 17 states, with some states facing multiple attacks on the same subject year after year. Only 10 of those 34 attack measures have passed in 50 years.

With the protections of Roe v. Wade in place, there have been only six proactive measures related to abortion introduced between 1970-2021. Four of those six proactive measures have been approved by voters.

Since the Supreme Court overturned Roe v. Wade, this trend has accelerated at unprecedented levels.

So far, states actively working to codify the right to an abortion in their state constitution include Vermont (on 2022 ballot), Michigan (on 2022 ballot), California (on 2022 ballot), MaineNew YorkColorado, and Ohio.

As the first state to vote directly on the right to abortion following the overturning of Roe v. Wade, Kansas voters used their power to overwhelmingly strike down the “Value Them Both” amendment, allowing abortion to remain safe and legal in Kansas. Nearly 20 percent of Kansas voters came out just to vote on the amendment — which received over 140,000 more votes than the two gubernatorial primaries combined. These numbers support what we’ve learned and shared over the years: Ballot measures transcend party lines and often receive higher turnout than candidates.

Similar to the recent vote in Kansas, voters in Kentucky and Montana must turn out in droves this November to reject harmful anti-choice measures that will be on their statewide ballots.

In Kentucky, the anti-abortion ballot initiative attempts to declare that there is no right to abortion and no public funds may go towards abortions. The ballot measure in Montana states that infants born at any stage of development are legal persons and criminalizes doctors by imposing nebulous treatment requirements under the threat of a $50,000 fine and 20-year imprisonment. 

Statewide campaigns fighting against these amendments are underway in both states. 

For more information on our analysis or to schedule an interview with one of our policy experts, please contact our Strategic Communications Director, Caroline Sanchez Avakian at [email protected]