The Hot Sheet

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

INTRO 

As of today, BISC is monitoring 146 bills to change the ballot measure process in 33 states.

ATTACKS ON THE BALLOT MEASURE PROCESS:

Attacks on direct democracy 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 well-funded right wing organizations like the Opportunity Solutions Project have asserted their determination to make sure ballot measures are no longer a viable tool for progressives.

Make no mistake, the attacks on the initiative process are organized, well-funded, and intended to stop bold progressive policies from qualifying and passing at the ballot. This year, we were also struck by the higher levels of strategy and organizing by Republican legislators. In many cases, they introduced companion bills in both chambers and with multiple strategic sponsors.

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

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 already 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. 

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. 

BISC is currently monitoring 15 Legal Challenges across 13 states in various 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.

Analysis: Ballot Measure Trends

Overview

In recent years, the ballot initiative process itself has been under attack by GOP lawmakers looking to restrict direct democracy by overturning ballot initiative decisions after they have already been voted on, and implementing a web of technicalities and hurdles that would make it impossible for grassroots communities to qualify ballot measures. 

The concerted conservative effort to limit the ballot initiative process is part of a larger movement by Republican legislators to undermine democracy. We have seen similarly high levels of attacks this legislative session in the form of voter suppression laws, attempts to remove Governors’ emergency powers, attacks on the freedom to protest, and more. Overall, there is a clear connection to ballot process attacks in states with GOP majorities where progressive policy has recently passed at the ballot. 

Types of Legislation

This year, we are seeing more sophistication in the policies being proposed.  Our opposition is more organized. They have more legislative sponsors and they are introducing parallel bills in both chambers.  They are finding statutory paths to pass new policies rather than having to send these decisions to voters through constitutional amendments.

We are also seeing a trend in bills relating to government authority in the ballot measure process including language content/development and the ability of the legislature to alter ballot measures after they are approved by voters. 

What’s Next? Strategic Considerations for the 2022 Landscape

Overview

There is a clear connection to ballot process attacks in states with GOP majorities where progressive policy has recently passed at the ballot.

This year, we are seeing more sophistication in the policies being proposed – they are more nuanced, more specific, and would have deeper impacts on the initiative process. Our opposition is more organized. They have more legislative sponsors and they are introducing parallel bills in both chambers.  They are finding statutory paths to pass new policies rather than having to send these decisions to voters through constitutional amendments.

We are seeing a trend in bills relating to government authority in the ballot measure process including language content/development and the ability of the legislature to alter ballot measures after they are approved by voters. Some of these bills are statutory and would not need voter approval to become law.

What to Expect in 2022

  • Voting access, freedom to protest, and initiative process attacks at state legislatures will continue in 2022
  • We will also see these issues on the ballot in many states in 2022 as legislators refer democracy attack amendments to voters
  • State specific research and narrative development to inform our defensive strategies
  • Work with our state partners to defend against attacks at the legislature and develop legislative champions for direct democracy and draw the line between us and our opposition
  • Beat the drum of democracy attacks and engage voters through strategic earned and social media
  • Develop the “story” of the impacts of ballot measures with state surrogates who have been directly impacted
  • Work with our Lawyers Guild to explore judicial strategies to challenge ballot measure attack legislation and identify the vulnerabilities in our state processes
  • Work with our state partners and Lawyer Guild to run proactive ballot to address our vulnerabilities and strengthen our initiative processes

Want to Dive Deeper Into the Ballot Measure Landscape?

Check Out BISC’s 2020 Landscape Analysis Executive Summary

BISC’s 2020 Landscape Analysis Executive Summary summarizes the findings from BISC’s full 2020 Landscape Analysis, an in depth qualitative and quantitative analysis of 36 ballot measure campaigns from the 2020 cycle.

The summary outlines BISC’s key takeaways from this extensive 2020 analysis, supporting evidence for our conclusions, and offers concrete recommendations for building durable, equitable wins.

This comprehensive analysis has enabled BISC and our partners to proactively plan for 2022 and beyond, utilizing key lessons and learnings.

To access the full analysis, which includes over 170 pages of data, please email [email protected].

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]