Politicians Take Aim at Ballot Initiatives

Aiming to derail a citizen initiative to protect abortion rights, Republicans in the Ohio legislature in 2023 tried to make it harder for citizens to amend the state constitution. Their methods were cynical but familiar. For years, some state lawmakers and officials have been trying to undermine avenues of direct democracy.

Nearly half of all states include a right to direct democracy in their constitution. That is, they allow citizens to place statutory or constitutional proposals on the ballot and pass them by popular vote. footnote1_owbdi3m 1 The Mississippi Constitution allows ballot initiatives that propose an amendment to the state’s constitution, but the Mississippi Supreme Court has effectively voided this provision by finding it incompatible with other provisions of law. This right, instituted in most places during the Progressive Era, modifies the typical “representative democracy” system by which people exercise their will by electing representatives to pass laws. Of the states that allow direct democracy, 16 permit citizens to directly initiate constitutional amendments.

To be sure, there are legitimate debates about how to ensure the ballot initiative process is regulated in a way that balances the goals of facilitating majoritarian democracy and ensuring adequate deliberation and stability in the law. But ballot initiatives enable citizens to overcome structural impediments to true representative democracy — for example, by translating voters’ preferences into policy when gerrymandered legislative districts otherwise stymie the popular will. In recent years, lawmakers have been changing the procedural rules to make it harder for citizens to exercise this power. And they appear to be doing so, not because of valid concerns that the process is insufficiently regulated, but rather because they do not like the policies citizens are enacting or are posed to enact.

Arizona and North Dakota stand out as the worst offenders. In Arizona, where there have been heated battles over initiatives on abortion and minimum wage, lawmakers approved two resolutions to make it harder for citizen-initiated measures to get on the ballot and also supported an unsuccessful challenge to a citizen-initiated law in court. Meanwhile, in an apparent backlash to a successful ballot initiative imposing term limits, North Dakota lawmakers voted to increase the number of signatures needed to place a measure on the ballot, and to require citizen-initiated measures to pass in two successive elections. Executive officials in North Dakota, for their part, attempted to disqualify valid petition signatures for the term-limits initiative but were blocked by the state’s highest court.

State officials’ efforts to thwart citizen initiatives do not take shape in isolation. They are part of a larger antidemocracy blueprint — yet another example of state officials trying to manipulate the rules of elections and obstruct the will of voters.

In the past five years, several trends have emerged among the more brazen efforts that warrant attention from voting rights and democracy advocates.

Since 2018, at least seven state legislatures have passed resolutions to heighten the petition signature requirements for getting a measure on the ballot. footnote1_fpixq8q 1 Arizona, Arkansas, Idaho, Michigan, North Dakota, Ohio, and Utah have passed these resolutions. Not all have taken effect. When the ballot-initiative rule that a legislature seeks to change is enshrined in the state’s constitution, it can be changed only by constitutional amendment. And if the state requires constitutional amendments to be ratified by the voters — as most states do — then the new rule must be approved by the voters to take effect. In the last five years, when citizens have had the chance to weigh in, they have almost always rejected lawmakers’ attempts to curtail direct democracy.

Voters in Ohio and Arkansas rejected their respective measures, and Arizonans and North Dakotans will have the chance to approve or deny these measures in November 2024. In three other states, these proposals to expand signature requirements became law without the input of voters. However, the Michigan and Idaho laws were later invalidated by courts.

Expanding Geographic Distribution Requirements for Signature Collection

Lawmakers are increasingly turning to geographic distribution requirements to hamstring ballot initiatives. These requirements provide that a threshold number of signatures must come from separate political subdivisions of a state — often, all or some number of a state’s counties or legislative districts. Collecting signatures across an entire state can be extremely costly for initiative proponents, particularly in vast rural areas that are sparsely populated. It can also give one district or county “veto power” over an initiative that is popular in the remainder of the state.

Last year, the Arizona legislature passed a resolution to impose a district-specific signature threshold. Currently, Arizona law requires citizens to collect signatures equal to 10 percent of the vote in the last gubernatorial election in order to place statutes on the ballot and 15 percent for constitutional amendments. The legislature’s proposal, if approved by voters, would apply this percentage threshold to each individual legislative district, making it significantly harder to get a measure on the ballot.

This past August, Ohio voters rejected a constitutional amendment that would have increased the district-specific signature requirements. Arkansas, for its part, has sidestepped the popular will and enacted a law that ratchets up, from 15 to 50, the number of counties in which proponents must meet the signature threshold. Arkansas’s new law looks eerily similar to a constitutional amendment referred by the legislature that voters rejected in 2020. A pending lawsuit alleges the legislature needed a constitutional amendment (and thus voter approval) to effect this change because the new restrictions contravene the state constitution. This fight in Arkansas follows successful citizen initiatives in 2018 and 2016 to increase the minimum wage and legalize medical marijuana, both of which passed over concerted opposition from the Republican-led legislature.

In 2021, Idaho enacted a district-specific signature requirement that was swiftly struck down by the state’s highest court for violating the state constitution. The law, which increased the signature threshold from 6 percent of voters in 18 of 35 state legislative districts to 6 percent of voters in every district, came on the heels of a successful ballot measure in 2018 to expand Medicaid eligibility. The Idaho Supreme Court found that the law violated the peoples’ right to legislate through direct democracy. It also noted that the Idaho legislature consistently adopts new signature requirements in the wake of successful citizen initiatives.

Similarly, in 2019, Michigan enacted a law barring any given congressional district from contributing more than 15 percent of signatures for a ballot measure. As in Idaho, this requirement was later struck down for violating the state’s constitution. Notably, just one month before Republican lawmakers introduced the bill, Michigan voters had approved citizen-initiated ballot measures to create an independent redistricting commission and to enshrine expansive voter access policies in the state constitution. These measures took important issues of voting and democracy out of the hands of political incumbents, whose judgment could be clouded by self-interest.

Increasing the Total Number of Signatures Required

Legislators have also sought to burden the petition process by raising the total number of signatures needed for an initiative to get on the ballot.

In April of 2023, the North Dakota legislature passed a constitutional amendment that, if ratified by voters this November, would increase the signature requirement for initiatives that amend the state’s constitution from 4 percent to 5 percent of the state’s resident population. Although 5 percent is not unusually high, North Dakota is already the only state that bases the number of signatures that must be collected on the state’s resident population rather than on the number of registered voters or votes cast in the preceding election — a distinction that dramatically increases the number of signatures that must be collected. footnote2_gdlg90l 2 Under current law, 31,164 signatures must be obtained to qualify a measure for the ballot. If North Dakota instead required signatures equal to 4 percent of the number of votes cast in the last gubernatorial election, like most other states, only 13,605 signatures would be necessary for a measure to qualify.

The legislature’s proposed increase would render the requirement even more onerous. Lawmakers introduced this proposal fewer than three months after North Dakota voters approved a citizen-initiated constitutional amendment to impose term limits on the governor and state legislators. Dozens of the state’s political incumbents had vehemently denounced the term-limits initiative, yet voters approved it by wide margins.

In the last five years, at least four Republican-led state legislatures have passed resolutions to ratchet up the approval threshold for a ballot measure to be enacted. footnote1_csuxg1m 1 Legislatures in Arkansas, Arizona, Ohio, and South Dakota have passed this type of resolution.

In three of these states, voters rejected the proposal. Arizonans, however, narrowly approved the increase, amending their constitution to impose a 60 percent approval requirement for ballot measures that propose new or higher taxes. Arizona is now one of just four states that require that citizen-initiated measures be approved by more than a simple majority of voters. footnote2_ez2ml60 2 The other states are Colorado, Florida, and Illinois. Illinois provides two methods for a constitutional amendment to be ratified. It must either receive 60 percent support from those who cast votes on the amendment, or receive support from a simple majority of the total votes cast in the election, including ballots with no vote on the measure itself. Over the years, Arizonans have turned to direct democracy a number of times to raise tax revenue for funding schools, health care, and childhood development programs. Importantly, none of these programs received 60 percent of the vote. footnote3_96a4p1d 3 For example, in 2020, voters approved a measure with 51.7 percent of the vote to raise taxes on the state’s highest earners to fund Arizona’s education system. The state’s governor criticized the tax, vowing to rescind it through the courts and ultimately succeeding.

As noted above, the Ohio legislature proposed an amendment to make the constitution harder to change in the future; this amendment, among other modifications, would have raised the approval threshold for citizen-initiated measures from a simple majority to a 60 percent supermajority. Proponents admitted this amendment was intended to block popular citizen-initiated ballot measures to protect reproductive and voting rights. Republican lawmakers ordered a special election on the measure in August, despite markedly low turnout in previous summer special elections. But Ohioans rejected this gamesmanship, repudiating the legislature’s proposal in August and voting in November by a 13 percent margin to enshrine abortion rights in the state’s constitution.

Legislators in Missouri, Oklahoma, and Florida also considered amendments to their state constitutions last year to increase the approval threshold necessary to pass a ballot measure. Notably, the Florida House passed an amendment that would have increased the approval threshold from 60 percent to 66.67 percent, but the resolution died in the Senate. The Florida Legislature has a history of undermining citizen initiatives. In 2018, just months after Floridians overwhelmingly approved an amendment to restore voting rights to most people with past felony convictions upon completing their sentence, the legislature passed a law undercutting the amendment by adding a pay-to-vote requirement.

State legislatures have applied numerous other tactics to restrict the ballot initiative process over the last five years.

For example, in 2023, Montana legislators enacted a law imposing a $3,700 fee to file an initiative petition with the state. This law makes Montana an outlier; only three other states charge a fee at the outset, and those fees are lower than Montana’s. footnote1_mfhwk6x 1 According to Ballotpedia, these states are California, Montana, Washington, and Wyoming. The filing fee is one of a host of new hurdles Montana lawmakers recently added to the citizen initiative process. In 2021 they passed a law that bars a measure from reaching the ballot until a legislative committee votes to approve or disapprove of the measure, with a disapproval placed as a warning on the ballot. The new law also authorizes the state’s attorney general to unilaterally block a measure from the ballot if he or she believes it violates the state’s constitution. Initiative proponents can seek review of this determination in the Montana Supreme Court.

In 2021, the Arizona legislature proposed a constitutional amendment to require citizen-initiated ballot measures to address a single subject. The next year, the voters ratified the amendment. Sixteen states footnote2_8arjmlk 2 According to Ballotpedia, these states are Alaska, Arizona, California, Colorado, Florida, Idaho, Missouri, Nebraska, Nevada, Ohio, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming. now have so-called single-subject requirements, which mandate that each initiative contain only provisions that are reasonably related and can be grouped together under a single subject. The Arizona legislature put this change forward after they had tried, and failed, to persuade a court to adopt a single subject rule and strike down a 2016 ballot measure that raised the minimum wage and established a right to paid sick leave.

In 2019, the North Dakota legislature passed a measure that would have required any citizen-initiated constitutional amendment approved by voters to receive subsequent approval from the legislature or to be placed on the ballot again for approval at a second successive election. This measure failed at the ballot box in 2020 by more than 23 percentage points. In 2023, the legislature passed a similar resolution that would impose a double-approval requirement. It would also empower the secretary of state to block measures from the ballot if he or she believes they encompass more than one subject. North Dakotans will vote on this new restriction in November.

Lawmakers in several states have continued their efforts to thwart citizen initiatives even after the initiatives pass.

Some Ohio lawmakers are already making plans to prevent implementation of their state’s new abortion-rights amendment. Shortly after election day in November, lawmakers floated draft legislation that would bar Ohio courts from interpreting any cases related to the amendment. For now, however, the Ohio house speaker has ruled out this approach. Republicans in the Ohio Senate, meanwhile, are rushing to water down the 2023 voter-approved initiative to legalize adult-use marijuana.

In 2021, Arizona lawmakers passed a resolution that would have allowed the legislature to amend or repeal a citizen-initiated law if, after passing, any portion of it was deemed unconstitutional by the Arizona Supreme Court or the U.S. Supreme Court. Voters emphatically rejected this proposal the next year. Currently, the state’s Voter Protection Act (itself passed as a citizen initiative) prohibits the legislature from amending voter-approved laws unless the amendment promotes the measure’s purpose and three-fourths of the members of each legislative chamber support it. footnote1_iy5jsbk 1 Arizona enacted the Voter Protection Act in 1998, after voters legalized medical marijuana but the state legislature repealed the citizen-initiated law.

Citizen-initiated statutory measures — as compared to constitutional amendments — are particularly vulnerable to legislative meddling; in most states that allow such measures, the legislature can simply repeal or amend them after they pass. The Utah legislature recently exercised this power, with lawmakers announcing that they would repeal and replace an initiative legalizing medical marijuana even before it was put to the citizens for a vote. Utah also has made it easier to retroactively modify a successful initiative. In 2019, the legislature prohibited citizen-initiated ballot measures from taking effect until the 60th day following the last day of the legislative session immediately after the election in which the measure is approved. The state senator who sponsored the bill openly acknowledged that its purpose was to allow the legislature to make changes to a successful ballot measure before it could be implemented.

Michigan lawmakers took a slightly different approach, embracing a tactic called “adopt and amend.” In 2018, two citizen-initiated proposals — increasing the minimum wage and requiring paid sick leave — received enough signatures to appear on the ballot. But the state did not place these measures on the ballot. Instead, the legislature itself passed the measures, as permitted by Michigan law. Three months later, the legislature amended the measures, revising the timeline for increasing the minimum wage and the number of hours of sick leave. The Michigan Supreme Court, in December 2023, heard arguments on a constitutional challenge to this “adopt and amend” action.

Recently, state executive officers on an ad hoc basis have relied on technical requirements within the ballot initiative process to block initiatives they find objectionable.

Florida’s attorney general is currently trying to block a proposed constitutional amendment to ensure abortion access in the state. When submitting the ballot initiative to the Florida Supreme Court for review, as required by Florida law, the attorney general urged the justices in a 50-page brief to reject the amendment on the grounds that the ballot summary was misleading and would allow abortion-access proponents to later claim the amendment had a broader meaning. Proponents of the initiative recently announced that they surpassed the required number of signatures needed to get the measure on the ballot in 2024. The Florida Supreme Court has yet to rule.

In 2022, North Dakota’s secretary of state invalidated nearly 30,000 signatures for the ballot initiative to require term limits for the governor and state legislators, discussed above. He claimed to perceive a pattern of “fraud” based on a small number of signature inconsistencies. The sponsors sued, and the North Dakota Supreme Court ordered the secretary to place the initiative on the ballot, which was resoundingly approved by voters in 2022.

The same year, Republicans on Michigan’s Board of Canvassers tried to block a voting rights initiative from the ballot because it purportedly failed to warn voters of the degree to which it would alter the Michigan Constitution. The Michigan Supreme Court intervened, rejected this claim, and ordered the board to place the initiative on the ballot, which passed by a wide margin.

Some state officials have also misused the single-subject rule to derail initiatives. For example, in Alaska, the lieutenant governor refused to certify an election reform initiative for the ballot in 2019, purportedly because it violated the state’s single-subject rule. The Alaska Supreme Court  rejected his claim and ordered the lieutenant governor to certify the initiative.

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In recent years, legislators and state officials have used a variety of means to preempt or undercut citizen-initiated ballot measures that they dislike. Some have shown they are willing to go to great lengths to do so. These targeted attacks on citizen initiatives are not occurring in a vacuum but are part and parcel of a larger effort to suppress the will of voters and undermine democratic processes.