The Assault on Direct Democracy

By now, progressives have gotten pretty good at recognizing voter suppression and gerrymandering for what they are: brazen attempts to undermine democracy that go beyond partisan politics as usual.

But there’s another increasingly popular tactic that represents an equally direct challenge to our system of popular rule, and it’s time we started thinking about it in the same terms: the assault on ballot initiatives.

One example that has grabbed headlines recently is a bid by Florida lawmakers to weaken a ballot measure that restored voting rights to people with past criminal convictions. But it’s part of a backlash that’s been underway for a few years now—spurred by the growing use of state ballot measures to accomplish key priorities like raising the minimum wage, protecting the environment and public health, and strengthening democracy. Since 2017 alone, 27 states have introduced legislation that in various ways aims to stymie popular referenda, according to the Ballot Initiative Strategy Center, which backs progressive ballot measures.

“It’s no exaggeration to say that there is a coordinated, conservative assault on direct democracy,” the group warns.

The Florida bill, which advanced last week in the GOP-controlled state legislature, would limit voting rights restoration to those who have paid off all fines and court fees, such as drug-testing fees and probation supervision fees. That clearly goes way beyond what voters intended when they approved the ballot measure by a nearly two-to-one margin last fall, after an inspiring grassroots campaign led by disenfranchised Floridians.

But it isn’t just in Florida where politicians are moving to overrule the people and turn back progressive priorities. In Missouri, Republicans are looking to weaken the redistricting reform ballot measure that voters approved last year as part of a wave of state-level grassroots efforts to end gerrymandering. Proposed legislation would allow map-drawers to largely ignore partisan fairness and competitiveness as criteria for new maps. That essentially would undo the core purpose of the reform measure, which was to ensure that maps reflect what voters want and to produce competitive races.

Gov. Mike Parson, a Republican, has few qualms about second-guessing the will of Missouri voters.

“Fundamentally, you think when the people vote you shouldn’t be changing that vote,” Parson told the AP. “But the reality of it is that is somewhat what your job is sometimes, if you know something’s unconstitutional, if you know some of it’s not right."

The Florida and Missouri efforts are each double-blows to democracy. First, because voters registered their views in the most direct way our system allows, only to see lawmakers try to devise ways to get around it. And second, because the two ballot measures at issue were themselves aimed at strengthening democracy, by expanding voting rights and curbing gerrymandering.    

Ballot initiative results on other key issues also are under threat. In Idaho, Utah, and Nebraska, voters last fall acted to expand Medicaid under the Affordable Care Act (ACA). (Those results, which came from three deep red states, underlined the broad popularity of the ACA’s Medicaid expansion.) But now, lawmakers in those states are trying to weaken the measures by narrowing who’s eligible. In Idaho, a bill that passed the state house last week would cut the number of people who can benefit by about one-third, and would impose requirements to be working, looking for work, or be in school. Separately, Utah’s legislature also weakened a medical marijuana ballot measure that passed last year—a rewrite that’s currently being considered by the state’s Supreme Court.

Some states are trying to make it harder to get initiatives on the ballot in the first place. It’s not like the process is so easy right now: All states require a certain number of signatures to get a measure on the ballot, and there are rules and procedures both for signature gatherers and for individuals submitting petitions. But a month after Michigan voters last year approved ballot measures that reformed redistricting and expanded access to voting, Republicans passed a bill that bars organizers from relying on any single congressional district to collect more than 15 percent of the signatures. The move will prevent organizers from getting large numbers of signatures in densely populated urban areas. It’s not hard to see which demographic of voters the new rules target.

Idaho’s Senate last week approved a bill that would likewise dramatically stiffen the requirements for getting a measure on the ballot. In Florida and Missouri, lawmakers have introduced bills to raise the threshold for approving a ballot measure to 66 percent of the vote. (In Florida, the rights restoration measure passed with 64.5 percent, and the current threshold for approving a ballot initiative is 60 percent.) Ohio and North Dakota are also considering measures to tighten the process for getting measures on the ballot or into law.

The war on ballot measures has parallels to another scheme used mostly by red states in recent years to limit popular control: pre-emption. That’s when states nullify local laws by barring local governments from taking action on an issue—thereby limiting the scope of local democracy. In one egregious example from 2016, Birmingham, Alabama raised its minimum wage to $10 an hour, benefiting the city’s low-wage fast-food workers, who are predominantly black. But after lobbying from the restaurant industry, the state legislature, which was controlled by an all-white GOP majority, passed a law barring cities from raising their minimum wages, which wiped out the Birmingham raise a week before it would have gone into effect. A federal appeals court struck down the state law, calling the process that led to it “rushed, reactionary, and racially polarized.”

A fair democracy means ensuring everyone can vote and that everyone’s vote counts equally. But it also means that those who are elected must maintain a basic respect for the popular will, even when they disagree with it. We should call out efforts to subvert the popular will for what they are: attacks on democracy.

The views expressed are the author’s own and not necessarily those of the Brennan Center for Justice.

(Image: Win McNamee/Getty)