Conservatives look to curtail the ballot measure process

Republican-led legislatures are mounting an increasingly fierce battle to curb the ability of citizens and other lawmakers to place ballot measures — a move progressive groups say is explicitly aimed at making it difficult to give voters in red and purple states direct say over major issues such as abortion rights.

During legislative sessions in 2022, 109 bills were filed in state legislatures to alter the citizen-led ballot initiative process; 58 would explicitly have made the process more difficult, according to a review by the Ballot Initiative Strategy Center, which works with progressive organizations to help advance ballot measures. Republican legislators seeking to restrain the placement of such ballot initiatives — including ones that would amend state constitutions — have already pre-filed at least 11 such measures in at least three states ahead of 2023 legislative sessions that kick off in January and February, according to a review by NBC News.

Progressive groups — including organizations that advocate for reproductive rights, as well as the ballot initiative groups those organizations regularly work with — say the efforts are a direct response to the success of progressive ballot initiatives on issues like expanding Medicaid and raising the minimum wage.

Efforts to curb the ballot initiative process have increased because of a string of victories by abortion-rights groups who, motivated by the Supreme Court’s decision to overturn Roe v. Wade in June, put abortion directly on the ballot. They were victorious in all six states that featured ballot initiatives around abortion access this year. Those groups now plan more measures in at least 10 states over the next two years.

But those efforts would be severely curtailed — if not downright eviscerated — if conservative legislatures move forward with their own measures to make it harder to place ballot initiatives.

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“There’s just so much opposition — not just against reproductive freedoms, but for the vehicles that reproductive freedom groups are now trying to use to protect those freedoms,” said Chris Melody Fields Figueredo, the executive director of the Ballot Initiative Strategy Center. “We know that many politicians don’t like to be told what to do — and what will be critically important to the success of the reproductive freedom movement, as well many other issues that rely on this process, is whether we will still have this tool.”

“After the success we saw in taking reproductive freedom directly to the people, we’ve definitely seen an uptick in these efforts to change the rules to suit their game,” added J.J. Straight, the deputy director of the Liberty Division at the American Civil Liberties Union, which is working with local organizations to research abortion rights ballot measures in 2023 and 2024.

In Ohio, for example, Republican legislators teamed up with the Republican secretary of state last month to write and advance legislation that would place a ballot measure before voters in a May special election. If approved, it would require a 60% threshold of support for future ballot measures to pass, as opposed to the current majority.

“The Ohio Constitution is supposed to serve as a framework of our state government, not as a tool for special interests,” Frank LaRose, Ohio’s Republican secretary of state, said in a statement. “If you have a good idea and feel it deserves to be within the framework of our government, it should require the same standard for passage that we see in both our United States Constitution and here in our own state legislature.”

The Ohio Legislature — in which Republicans hold a supermajority in both chambers because of heavily gerrymandered maps — is scheduled to take up the measure when its session begins next month.

In Missouri, legislators in the House have already pre-filed at least nine measures for the legislative session that kicks off next month, all of which seek to raise the requirements or thresholds necessary to pass ballot initiatives to amend the state constitution. Currently, Missouri law allows all ballot initiatives to pass with simple majorities.

Last month, Missouri voters legalized recreational marijuana after they approved a ballot initiative that amended the state constitution. In 2020, state voters used the same process to expand Medicaid, and in 2018 they similarly legalized medical marijuana.

In Oklahoma, where efforts that would make it harder to place citizen-led ballot initiatives have failed in the past two years, conservative legislators supporting such changes vowed to press on next year.

“Constitutional changes are much more permanent in nature and harder to change than a state statute enacted by the Legislature. Therefore, they should face a higher threshold to be enacted,” said state Rep. Carl Newton, a Republican.

Newton said he would continue to work to raise the threshold by way of a constitutional amendment that itself would raise the threshold to pass future proposed constitutional amendments to 55% from a simple majority.

Republican legislators in South Dakota and North Dakota have signaled that they will again try to raise the passage threshold for citizen-led ballot measures to change their state constitutions after efforts in both states failed this year (although at different stages).

Ohio, Missouri, Oklahoma, South Dakota and North Dakota are among the 17 states where it is legal for citizen-led ballot measures to amend the state constitution; five others and Washington, D.C., allow citizen-led ballot measures, but not ones to amend constitutions. They are also among the 10 (of those 17) where reproductive rights groups are eyeing efforts to place ballot measures that would enshrine abortion rights in their constitutions.

Spokespersons for LaRose, Newton and several Missouri GOP legislators did not respond to questions about whether their proposals were designed in response to those efforts by abortion-rights groups.

Such efforts will face even steeper uphill climbs if measures to tighten the thresholds in those states pass.

Ballot initiative groups say that’s the point.

“There are so many different ways this process can get disrupted or delayed or basically be terminated altogether. This is one of the most obvious,” said Kelly Hall, the executive director of the Fairness Project, a nonprofit organization that helps progressive groups advance citizen-led ballot initiatives.

Despite the conservative push to curtail ballot measures, Republican legislatures in red and purple states spent the past year actively using the ballot measure process to make it more difficult for voters to amend state constitutions. The outcomes of the efforts were mixed.

In Arizona, Proposition 132 won, raising the threshold to enact constitutional ballot initiatives related to taxes to 60% (from a simple majority). Critics have alleged the measure amounts to a test run for a more comprehensive measure that would raise the threshold for all such constitutional ballot initiatives.

Another one — known as Proposition 128 — lost. It would have amended the state constitution to allow the Legislature to more easily repeal citizen-led ballot initiatives that had passed. 

In Arkansas, Issue 2 lost. It also would have raised the threshold for ballot initiatives to amend the state constitution to 60% (from a simple majority).

Although two of the three were unsuccessful, they still offer red and purple state legislatures a road map to again try to deny the practice of a “direct democracy” process that proponents say more accurately reflects voters’ attitudes on certain issues.

“Ultimately, we believe [citizen-led ballot initiatives] are an accountability tool for people to send a direct message to their government about their expectations and attitudes on big issues,” said Straight of the ACLU. “It’s cynical how much these lawmakers want to see that there is less access to them, less of an ability for people to address their government and participate in the policymaking process itself and to lessen how laws might actually reflect the will of the majority of the voters in their states.”

As for the idea that conservatives are seeking to change the ballot initiative process by using the ballot initiative process?

“They’re trying to use ballot measures — to change ballot measures,” said Fields Figueredo of the Ballot Initiative Strategy Center. 

“It’s not lost on me how ironic that is.”