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Direct Democracy Proves Too Scary for Red State Legislatures; So, They Change the Rules
[A shorter version of this piece appeared in Fulcrum, May 4, 2023]
Sometimes, the people want change so much that they embrace measures that bypass their elected representatives. So goes the rationale for the direct democracy concept called “initiative and referendum,” a process by which citizens in various states can collect enough signatures to place proposals to change state constitutions or statutes directly before the people for a vote. Presently, 26 states include an initiative process in their constitutions, including 18 that permit direct amendments to their constitution. While South Dakota was the first to adopt this approach in 1898, most enacted these provisions in the early part of the 1900s.
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This approach is dramatically different and easier from the way our U.S. Constitution allows amendments. With citizen initiative, all that is needed are sufficient signatures to place a referendum on the ballot and, in most cases, a simple majority to vote for it.
The last decade has brought dramatic changes in states with the initiative process–even when the legislature opposed the proposals. Some form of marijuana use has been legalized in 18 states via citizen initiative. Ballot initiatives won increases in the minimum wage in 11 states, including Florida (in 2020 with 61 percent of the vote), Missouri (in 2018 with 62 percent), and Arkansas (in 2018 with 68 percent). Florida was the only one passed through constitutional amendment; the others were statutory enactments. Since 2017, Medicaid expansion has passed in seven states where the issue was placed on the ballot, including by constitutional amendment in South Dakota (in 2022 with 56 percent of the vote), Missouri (in 2020 with 53 percent), and Oklahoma (in 2020 with 50.5 percent).
DOBBS THE DISRUPTOR
Passage of what might be characterized as progressive measures has proven extremely discomforting to GOP legislators, their priorities threatened by the voice of the people. But what really concerns conservative legislatures has been the success of direct democracy following the U.S. Supreme Court decision to overturn Roe v. Wade in the Dobbs case.
First, there was Kansas and Kentucky, red states where voters recently stomped down efforts to restrict abortion. Then, there was Montana, where voters defeated a personhood amendment than would outlaw not only abortion but conceivably contraception as well. Perhaps most significant was Michigan, where abortion rights activists engineered not only passage of a state constitutional right to reproductive freedom in November 2022, but, in the process, helped bring the state a Democratic trifecta it had not enjoyed in decades. Citizens in 10 states are now actively engaged in placing abortion rights directly before the voters. And conservative state legislatures are not only devising creative ways to defeat them, but to strangle direct democracy in the process.
The poster child for this fight is Ohio, a state where reproductive freedom advocates are organizing to pass a constitutional amendment this November.
The Buckeye state installed “initiative and referendum” in its constitution in 1912, shortly after former Republican President Theodore Roosevelt argued that the state’s new charter include a way that the people, by popular vote, can “readily … amend it if at any point it works injustice…..” Direct democracy was a key tenet of the Progressive movement, which held that it could provide critical checks on the power of the legislature and the courts.
The Ohio Convention embraced Roosevelt’s position and the state joined about 20 other states who adopted this form of direct democracy in the early 1900s.
Ohio Republicans now want to make it more difficult for citizens to change their constitution. Conservatives felt burned by passage of an amendment to increase the minimum wage in 2006 and then by two constitutional amendments that required nonpartisan redistricting and which were used as the basis of the state’s Supreme Court slap down, in seven separate rulings, of Republican line-drawing before the last election. In addition to a reproductive rights amendment, Ohioans may also see a measure to increase the minimum wage on next year’s ballot. These efforts at direct democracy are threatening the conservative agenda.
In response, Republican legislators have passed a measure to increase the passage threshold for constitutional amendments to 60 percent (In Michigan, Kentucky and Kansas, votes for abortion rights gained between 52 and 59 percent) and intend to place the proposal on the ballot in August–- three months before the reproductive rights measure gets a vote. Former state lawmaker Michael Curtin suggests that in its 220 years of statehood, the Ohio General Assembly has never scheduled an August special election to enact such a major change to the Ohio Constitution. If the gambit succeeds, the threshold for the November abortion proposal will rise from 50 percent to 60 percent for passage.
Ohio lawmakers have been wallowing in hypocrisy throughout this debate, starting with their decision to schedule the vote on the proposed restrictions for this August. That decision contradicts a pledge they made only last year not to schedule these initiatives for low turnout elections like those that occur in August. In addition, they are also proposing to make it much harder for Ohioans to qualify future initiatives for the ballot by expanding signature-gathering quotas to all 88 counties from the current 44. As recently as last November, the state’s GOP Attorney General, Frank LaRose, publicly stated that he could not support those restrictions to the initiative process. All of that has now changed.
The Ohio proposals are so brazen that they have prompted criticism from four previous governors, two Democrats and two Republicans. But this opposition, and massive protests at the state capitol, made no difference.
RED STATES EMBRACE A COMMON APPROACH
Ohio is not alone in its attempts to undermine direct democracy. In the last several years, citizen initiatives in Missouri have been successful in passing ballot measures to legalize marijuana and expand Medicaid. Reproductive rights advocates are now pushing to place constitutional provisions protecting abortion on the ballot in 2024. In response, the Republican-controlled Missouri legislature is fast-tracking a plan to increase the simple majority threshold requirement for passage of a constitutional amendment. And they hope to have it on the November 2023 ballot, a full year before the reproductive rights measure could face the voters.
Similar efforts are also underway in Oklahoma, and Florida, which already has a 60 percent threshold, is seeking to raise it to a 2/3rds majority. According to the Ballot Initiative Strategy Center (BISC), at least 58 bills restricting the ballot initiative process have been introduced in state legislatures this year.
Even in conservative states, however, efforts to curtail direct democracy do not always succeed. Arizona voters recently rejected a proposed amendment that would have allowed the legislature to more easily repeal citizen-led ballot initiatives after approval. Last June, voters In Arkansas and South Dakota resoundingly rejected Republican-authored constitutional amendments to raise the threshold for passage of most ballot initiatives from a simple majority to 60 percent. In November 2022, South Dakotans then proceeded to pass a constitutional amendment to expand Medicaid with 56 percent of the vote.
DIRECT DEMOCRACY DEBATE IN A HYPER PARTISAN WORLD
If we did not live in such a hyper partisan world, it would be easier to have a thoughtful philosophical debate about the degree to which direct democracy should drive our policy choices. Our founders had such a debate, and they chose an amendment process for the U.S. Constitution that provided for little citizen input. Similarly, most state constitutions did not initially include provisions for direct democracy, notwithstanding proposals by Thomas Jefferson to include legislative referendum to allow citizens to approve laws. Virginia’s founders rejected Jefferson’s advice, and, to this day, the Commonwealth’s constitution is among the most difficult to amend. Of the original 13 states, only Massachusetts has the initiative and referendum.
It took over 100 years from our nation’s founding for the direct democracy movement for direct democracy to gain enough strength to change amendment processes in many states. It was a time much like our own, when the checks and balances did not appear to be working, and people looked for ways to overrule legislatures that appeared to be out of their control.
Nonetheless, questions remain. How easy should it be for citizens to directly amend state constitutions, as opposed to a deliberative legislative process where elected representatives can take more time to vet proposals and flesh out their complexities before the amendment faces the public? If we make constitutional change too easy, we run the risk of more state constitutions like Alabama’s, which includes over 900 amendments? And how great should be the concern that citizen advocacy will fail to adequately consider the budgetary impacts that will be forced upon legislatures from initiatives that enjoy simplistic appeal without consideration of the consequences? Passage of California’s Proposition 13, the 1978 tax revolt initiative, created severe budget problems for state government, and raised major questions about the value of citizen initiative.
These are not easy questions to resolve. Unfortunately, what is happening in red states is not about political philosophy, but about power. And citizen initiative remains one opportunity to counter that power and ensure that the will of the people is respected.
Update( May 11, 2023). Ohio legislators scheduled an August vote for the restrictive constitutional amendment. But they failed to vote to fund the special election, sending election officials into a tizzy and setting up a court fight on the initiative. Stay tuned.
In Florida, reproductive rights’ advocates are attempting to collect signatures sufficient to place a constitutional amendment to protect abortion before the voters in fall 2024. The state’s legislature adjourned on May 5, 2023 without taking action to alter the threshold for passage, which remains a hefty 60 percent. And the Missouri legislature hopes to schedule their ballot initiative to increase the threshold for voter approval to 57 per cent before they adjourn this week.
COMING SOON IN FIGHTS OF OUR LIVES:
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David J. Toscano is an attorney and the former Democratic Leader in the Virginia House of Delegates. He is the author of Fighting Political Gridlock: How States Shape Our Nation and Our Lives, and Bellwether: Virginia’s Political Transformation, 2006-2020.
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