Impeding Citizen-Driven Initiatives Is Latest Election Law Fight

Voters in at least three states could decide this year to weaken their own voices at the ballot box.

Lawmakers in Arizona, Arkansas, and South Dakota have placed measures on primary or general election ballots to make it harder to pass initiatives or to more easily reverse voter-approved decisions.

“It is a death by 1,000 cuts,” said Kelly Hall, executive director of the Fairness Project, an organization that focuses on economic and social justice ballot measures. “Very rarely do we see an attack on our democracy that is an outright ban on voting or on ballot measures.”

In Arizona, voters will decide on two measures that could affect the success of ballot questions. One would limit initiatives to just one subject (H.C.R. 2001), and the other would hand the legislature the authority to change or repeal voter-approved initiatives if a court strikes down a portion of the measure (S.C.R. 1034).

Lawmakers placed both measures on the November general election ballot.

Arizona Voters, Lawmakers Face Off Over Who Gets the Last Word

Arkansas and South Dakota voters will decide whether to require 60% of the vote—a supermajority—rather than a simple majority to approve certain changes. The South Dakota measure targets both state law and the Constitution, while the Arkansas measure addresses just the state Constitution.

A group of North Dakotans is vying to get a similar measure before voters; it would require a three-fifths supermajority vote to change the state Constitution.

Photographer: Ash Ponders/Bloomberg via Getty Images

Voters stand in line to cast early ballots in Phoenix, Ariz., in October 2020. State voters approved a ballot measure in favor of recreational marijuana.

Backers say the goal is to protect state constitutions from frequent changes. “We believe that the Constitution deserves a higher level of respect,” said Jeff Zarling, a leader of the North Dakota effort.

The South Dakota measure (Constitutional Amendment C) would apply the 60% threshold to any measures that would raise taxes or fees or cost at least $10 million in the first five fiscal years. It will appear on the June primary ballot and, if successful, would make it more difficult for voters to OK an expansion of Medicaid eligibility in November’s general election.

Supporters of the North Dakota measure must collect at least 31,164 valid signatures before Feb. 14 to qualify for the June 14 primary election. That measure will go on the November ballot if sufficient signatures are turned in by April 22. The proposal also would limit initiatives to a single subject or topic, a rule already on the books in 16 states.

In all those states, only a simple majority will be needed to change the rules for future ballot measures.

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States last year enacted a number of bills that would make the ballot initiative process more burdensome, according to the Fairness Project. They include limits on using paid canvassers in Arkansas (S.B. 614) and Utah (H.B. 136); a requirement that South Dakota petitions be printed in 14-point font (S.B. 77); and a $3,000 contribution cap to Florida ballot measure campaigns (S.B. 1890), which a judge last year blocked from going into effect.

‘Hobby Horse’

State Rep. David Ray (R), author of the Arkansas ballot measure (H.J.R. 1005), says state constitutions are susceptible to changes pushed by well-resourced national organizations.

Out-of-state interests “want to come in and use our initiative and constitutional amendment process at the ballot box to advance their hobby horse issues,” he said, citing as examples recent Arkansas initiatives on cannabis, new casinos, and redistricting.

Billionaires Pay Up to Draw Attention to Ballot Initiatives

Neither of the prime sponsors of South Dakota’s supermajority measure—Speaker Pro Tempore Jon Hansen (R) and Senate President Pro Tempore Lee Schoenbeck (R)—responded to requests for comment by phone and email.

Requirements Differ

Three states—Colorado, Florida, and New Hampshire—require a supermajority vote of 55%, 60%, and 66.67%, respectively, for both legislatively referred and citizen-initiated constitutional amendments, according to Ballotpedia.

Other states require a three-fifths or two-thirds majority vote for certain issues, like gambling in Washington state and wildlife takings in Utah. In Illinois, a question can pass if either 60% of voters choose yes on the measure or a simple majority of all voters in the election are in favor of it. .

Arizona’s single-subject question would reverse in part the 2017 Arizona Supreme Court decision in Ariz. Chamber of Commerce & Indus. v. Kiley, 2017 BL 268559, 770 Ariz. Adv. Rep. 12, 242 Ariz. 533, 399 P.3d 80, Ariz., No. CV-16-0314-SA, 8/2/17. The court concluded that the single-subject rule only applied to legislative acts, not to citizens initiatives, in a challenge to the state’s successful minimum-wage ballot initiative.

The other measure would roll back part of the 1998 Voter Protection Act, which prohibits the legislature from changing ballot initiatives once they’re approved by voters. Supporters say it would allow lawmakers to tweak or invalidate measures that don’t comply with existing law.

“It is highly unlikely that the voters would have supported a measure if they knew that it was illegal or unconstitutional,” state Sen. Vince Leach (R), the sponsor of the resolution, said at a committee hearing last year.

Politician Pushback

Ballot initiatives in the past decade have triggered minimum wage increases in Arizona, Alaska, Arkansas, Colorado, Florida, Illinois, Maine, Missouri, Nebraska, New Jersey, South Dakota, and Washington.

Voters also approved cannabis legalization in 13 states—Alaska, Arizona, California, Colorado, Maine, Massachusetts, Michigan, Montana, Nevada, New Jersey, Oregon, South Dakota, and Washington. The South Dakota Supreme Court struck down the marijuana decision

Initiatives to expand health-care coverage for the poor passed in Idaho, Maine, Missouri, Nebraska, Oklahoma, and Utah, though in some of those states, legislators came with ways to limit the impact by adding eligibility requirements (Idaho and Utah) or refusing to appropriate the money to pay for Medicaid expansion (Missouri).

Florida Citizens Decide Issues, Then Lawmakers Ignore Them

Elected officials also have worked to roll back voter initiatives on campaign finance in South Dakota, voting rights for ex-felons in Florida, and tax increases for education in Arizona.

“As we’ve been winning on these progressive issues at the ballot, we absolutely have seen an increase on the attacks to direct democracy,” said Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, which has supported measures to increase the minimum wage and restore voting rights.

With assistance from Stephen Joyce

To contact the reporter on this story: Tiffany Stecker in Sacramento, Calif. at tstecker@bgov.com

To contact the editors responsible for this story: Tina May at tmay@bloomberglaw.com; Katherine Rizzo at krizzo@bgov.com