The People's Power: Citizen Initiatives to Change State Law and Constitutions

Part 3 of “When Scotus fails, Are State Supreme Courts an Answer?”

“Sometimes citizens want something so badly that legislators ought to get out of the way and let them have it.”      

If we do the work, this nation will dodge calamity in November by electing the joyous duo of Kamala Harris and Tim Walz.  But don’t forget what else is on the ballot. The entire House of Representatives is up for grabs as well as the majority in the U.S. Senate, where prominent Democrats like Jon Tester of Montana and Sherrod Brown in Ohio must overcome the red currents in their states to win reelection.  Beyond the federal contests, there are also eleven gubernatorial races, elections for 85 of the 99 state legislative chambers, and battles for 80 state supreme court seats in thirty-three states.  This is how representative democracy works; we elect our leaders, and they make policy and legal choices on our behalf.

But Americans in some states will also exercise a different type of democracy this fall, one by which their votes will directly determine laws in their respective states. As of July 31, citizens in about one-half of our states will directly vote on 134 measures to change their state laws or constitutions. Many of these have been placed on the ballot by state legislatures, much like Virginia’s constitutional amendment to establish an independent redistricting commission several years ago.  But the most interesting questions are ones that citizens themselves have placed on the ballot through what is called “citizen initiative.”  It is direct democracy in its purest form.  Citizens in a particular state collect enough signatures on petitions to force a measure onto the ballot.  Once those signatures have been certified and the language of the proposal approved, voters accept or reject it in the next election. This exercise of direct democracy is permitted in the 19 states shown in dark green below.  

[See Movement Advancement Project. "Direct Citizen Initiative States." https://www.mapresearch.org/democracy-maps/direct_citizen_initiative_states.]

In some instances, these citizen-initiated proposals simply change laws; in 16 states, they can amend state constitutions.  Largely a product of the progressive era, when public distrust of legislatures and large corporations was extremely high, these options found their way into state constitutions, creating a fundamental right for citizens to create change that is not available under the U.S. Constitution or federal law. 

In decades past, many of these initiatives focused on restraining governments from raising taxes. But that has been changing, as ballot initiatives identified as liberal have gained ascendancy. Most recently, citizen initiatives have led to the expansion of Medicaid in five states, including Idaho and Utah, increases in the minimum wage in Arkansas and Missouri, and restrictions on predatory lenders in Arizona and Nebraska.  These changes are occurring in red states with legislatures openly hostile to the measures. This fall’s initiatives, if passed, will bring major change in those states as the result of this direct democracy. 

Where have citizens been most successful and what can we expect this November?

REPRODUCTIVE RIGHTS. 

The Dobbs decision created a firestorm in the states.  Thirteen of them already had “trigger laws” that took effect after the repeal of Roe and dramatically restricted abortion. Some like Michigan and Arizona already had measures on the books from centuries past that were reborn as soon as Roe was jettisoned.  Finally, other conservative state legislatures moved quickly to restrict abortion and punish women and doctors who use the procedure.  But citizens have been fighting back, harnessing the power of direct democracy to vote changes in their constitutions and by defeating measures proposed by legislatures that would have done the opposite.   California, Vermont, and Michigan all passed ballot initiatives that inserted reproductive rights into their state constitutions. Voters in Kentucky and Kansas rejected constitutional amendments proposed by conservative legislatures (neither state allows for citizen-initiated ballot questions).  But perhaps the most shocking events occurred in Ohio in November 2023, where the electorate not only resoundingly passed an abortion rights amendment generated through citizen-initiative but defeated the slick and cynical efforts by conservative legislators who, three months prior, unsuccessfully attempted to increase the requirements for amendment passage from a simple majority to 60%. 

November 2024 may prove even more dramatic. In six states (CO, FL, MD, NV, NY, and SD), citizen efforts have already placed abortion rights on the ballot and three others (AZ, MO, and NE) may soon join them [Nebraska also has an abortion prohibition on the ballot as the result of citizen petitions].  These efforts may be the largest concerted effort to change constitutions around the same issue in numerous states in American history. Their presence on the ballot may also drive turnout sufficient to affect other races.  

REDISTRICTING, CANNABIS, AND VOTING RIGHTS 

Citizen-initiated ballot measures have created redistricting commissions to combat hyper partisan gerrymandering of congressional and legislative districts in states as different as Michigan and Arizona, and this year, Ohio citizens will have a chance to create one of their own.  Of the 24 states and the District of Columbia that have legalized small amounts of cannabis (marijuana) for adult recreational use, most have done so by ballot initiative, not by legislative enactment, with Colorado and Washington leading the way in 2012.  This November will see three more states – South Dakota, North Dakota, and Florida–where the public has placed cannabis initiatives on the ballot. The District of Columbia, Idaho, Oregon, and Nevada have initiatives to permit the use of ranked choice voting. Colorado voters can strike same-sex marriage prohibitions from its constitution.  And New Yorkers have the chance to join Pennsylvania and Minnesota in passing a state version of the Equal Rights Amendment.

SCRAMBLING TO CHANGE THE RULES 

Many politicians, especially in conservative legislatures, do not like this trend.  So, they are attempting to make it more difficult for these initiatives to be placed on the ballot and to pass them once they are there. To date, they have largely been unsuccessful.  Some states have tried to change the votes needed to pass a ballot initiative. 

Apart from Florida, which has a requirement that these measures be passed with over 60% of the vote, most state constitutions require only a simple majority vote for these proposals to become law.  Ohio’s recent efforts to alter the simple majority threshold in advance of the successful abortion amendment was a spectacular failure. In Missouri, the Republican-controlled legislature, incensed that voters in the “Show Me” state passed citizen initiatives to raise the state’s minimum wage, expand Medicaid, repeal “right-to-work”, and decriminalize the use of marijuana, sought to increase the signature requirement and the threshold for voter passage. Their efforts failed when Senate Democrats delayed passage until legislative adjournment foreclosed it. Idaho’s legislature succeeded in passing new requirements, only to be stymied when its state’s Supreme court rejected the new law, holding that “initiative and referendum powers are fundamental rights” that would be compromised by the action.  And in mid-July, the Montana Supreme Court blocked Secretary of State Christi Jacobsen’s efforts to change the rules for counting voter signatures on petitions after they had already been certified.  Three ballot initiatives, including one on abortion, are scheduled for the Montana ballot this November. 

Some legislatures have placed measures on the ballot this fall that will impose more requirements on citizen-initiatives.  Arizona has two this fall, both of which would make gathering petitions more difficult. 

Finally, conservative legislatures are attempting to nullify the initiatives after they receive voter approval.  Immediately after Ohio passed its abortion rights constitutional amendment in 2023, the state legislature declared it void, and then tried to pass a measure to strip the courts of their ability to enforce it. The measure was blocked by the House Speaker, and it is unlikely that a legislative proclamation will take legal precedence over the constitutional amendment passed by the people.

LEGISLATIVE BALLOT INITIATIVES

In addition to those initiatives proposed by the people, there are many placed on the ballot by legislatures. Among those are measures in six states —Idaho, Iowa, Kentucky, Missouri, Oklahoma, South Carolina, and Wisconsin —that would require proof of citizenship to vote in state elections. History suggests that most will pass; since 2018, similar measures have been approved in Alabama, Colorado, Florida, Louisiana, North Dakota, and Ohio. 

FUTURE OF DIRECT DEMOCRACY 

Direct democracy can be a powerful tool to achieve change in the face of legislative resistance.   But it only exists in the states.  When it comes to changes in the U.S. Constitution or federal law, citizens have no direct vote.  It operates as a representative system in which we elect others to make policy for us.  States provide citizens more options. Their constitutions are more majoritarian than our federal charter and there is greater opportunity for direct involvement.  In states where permitted, the citizen-initiative process interjects direct democracy into a system that often appears nonresponsive and unaccountable. Given the successes of recent years and the likely results this fall, expect more initiatives in the future and greater efforts by legislatures to increase the burdens on those who seek to use the process for progressive change.