Expert Commentary

What journalists need to know about potential threats to the ballot initiative process

In this commentary, the manager of a voter empowerment project discusses what it takes for citizens to get a proposition on the ballot.

(Thor Deichmann from Pixabay)

In the aftermath of the Jan. 6, 2021, insurrection at the U.S. Capitol, efforts to restrict voting access have intensified. The Brennan Center for Justice estimates that 405 restrictive voting bills have been proposed in 39 state legislatures in 2022 alone, with seven states having enacted 10 different laws this year to make voting access harder for some Americans.

These efforts have also included the restriction of ballot initiatives — an exercise in direct democracy that allows voters to bypass state legislatures to enact new laws, amend state constitutions or repeal existing laws. According to the Ballot Initiative Strategy Center, a left-leaning advocacy organization, at least 146 bills were introduced in 2021 by Republicans in 32 states that intended to restrict the processes of ballot initiatives. According to a BISC information sheet, “21 of 25 bills enacted or referred to voters in 2021 were direct threats to the ballot initiative process.”

Understanding the threat to ballot initiatives and their impact on U.S. society can help journalists better comprehend the election in such polarizing times. But first, it’s important to understand what they are and how they work.

What is a ballot initiative?

Ballot initiatives are in a family referred to as ballot measures or ballot propositions, which also include referendums and legislative measures.

  • Legislative measure: As explained by the Initiative & Referendum Institute at the University of Southern California, a legislative measure is a proposal placed on the ballot by a state’s legislature. All 50 states permit legislative measures on their ballots.
  • Referendum: A referendum is a proposal to repeal an existing law, giving voters the opportunity to decide whether to keep or revoke the law. Twenty-four states permit referendums, according to IRI.
  • Ballot initiative: An initiative is a proposal of a new law or constitutional amendment. Both initiatives and referendums require the signatures of a specific number of citizens to qualify for the ballot.

In the U.S., 24 states have an initiative process, which allows voters the ability to bypass their state legislature through indirect and direct proposals for statutes and, in some states, constitutional amendments on a ballot.

There are two types of initiatives: direct and indirect. Direct initiatives are placed directly on the ballot. Indirect initiatives are first submitted to state legislatures and only end up on a ballot if the legislature rejects it, submits a different proposal or fails to act. As the National Council of State Legislatures explains on its website: “In some states with the indirect process, the legislature may submit a competing measure which appears on the ballot along with the original proposal. States with some form of the indirect process are Maine, Massachusetts, Michigan, Mississippi, Nevada and Ohio. In Utah and Washington, proponents may choose either method.”

The modern American history of ballot initiatives begins in South Dakota, which was the first state to adopt the initiative process in 1898, helping launch a prominent feature of the American Progressive Era. Theodore Roosevelt’s address to the Ohio Constitutional Convention in 1912 underscores the historical usage of ballot initiatives to enact social change by ordinary citizens.

“I believe in the initiative and the referendum, which should be used not to destroy representative government, but to correct it whenever it becomes misrepresentative. Here again I am concerned not with theories but with actual facts. If in any state the people are themselves satisfied with their present representative system, then it is of course their right to keep that system unchanged; and it is nobody’s business but theirs. But in actual practice it has been found in very many states that legislative bodies have not been responsive to the popular will. Therefore I believe that the state should provide for the possibility of direct popular action in order to make good such legislative failure.”

Theodore Roosevelt

Ballot initiatives are also enshrined in the Crow Tribe of Indians’ Constitution.

How does a ballot initiative make it to the ballot?

On its website, the NCSL provides a straightforward explanation of the qualification process:

“No two states have exactly the same requirements for qualifying initiatives to be placed on the ballot. Generally, however, the process includes these steps:

1. Preliminary filing of a proposed petition with a designated state official;
2. Review of the petition for conformance with statutory requirements and, in several states, a review of the language of the proposal;
3. Preparation of a ballot title and summary;
4. Circulation of the petition to obtain the required number of signatures of registered voters, usually a percentage of the votes cast for a statewide office in the preceding general election; and
5. Submission of the petitions to the state elections official, who must verify the number of signatures.”

If enough valid signatures are obtained, the question goes on the ballot or, in states with the indirect process, is sent to the legislature.

Each state has different requirements for each part of the process, including subject matter, signature collection, submission timeline, petition content, ballot access and passage. Through every step of the process, some states make it easier to get an initiative on the ballot than others. Journalists who cover local elections should familiarize themselves with their states’ requirements.

For a comprehensive list of requirements by state, visit NCSL, which offers these examples of how requirements can vary at every step of the qualification process:

Examples of how state ballot measure requirements can vary
Subject matter: Mississippi’s state constitution forbids amending or repealing their right-to-work provision. Florida’s constitution requires a two-thirds vote to pass on amendments that propose a tax or fee not in place as of 1994.
Number of signatures required: Illinois requires 8% of the votes cast for governor in the last gubernatorial election. Wyoming calls for 15% of total ballots cast in the previous general election.
Submission timeline: Nebraska allows two years for collection of signatures, with a deadline of four months before the general election. Oklahoma provides 90 days from the beginning of circulation.
Petition content: In Arizona, proponents draft the title and summary of the initiative. South Dakota tasks the attorney general, after receiving written comments from the Legislative Research Council.
Ballot access: Ohio requires a successful ballot initiative to be placed on the next regular/general election. Montana does, too, in addition to allowing the legislature to order a special election.
Passage: Thirteen states require a simple majority to pass, while 10 states allow legislatures to change measures without any time limits or supermajority requirements after passage.
Source: National Conference of State Legislatures Initiative and Referendum Processes

What are the threats to the ballot initiative process?

While Roosevelt spoke in favor of the utility of ballot initiatives — as a check on legislative bodies who don’t adequately respond to the popular will — modern usage has ushered in a new era of political tactics to place hurdles at every step of the initiative process.

Consider a recent example in Oklahoma, which already has some of the harshest requirements for an initiative to appear on a ballot on Election Day. First, petitioners must submit initiative language to both the secretary of state and attorney general. Even if they survive legal challenges in the ballot proposal process, they have the shortest period to circulate petitions in the U.S. — just 90 days to gather hundreds of thousands of signatures.

In July, proponents of State Question 820 successfully overcame most of the procedural hurdles and turned in over 160,000 signatures — 94,911 above the necessary threshold — after just 60 days. A “yes” vote on SQ 820 would legalize recreational marijuana for adults above 21 and decriminalize possession and use. If the question had made it to the ballot, Oklahoma would have joined five other states deciding on marijuana legalization in the 2022 midterm elections.

However, a delay occurred during the signature verification process and the Oklahoma Supreme Court recently decided to not allow the question to appear on the November ballot, deciding there wasn’t enough time to prepare ballots for absentee and overseas voting.

Gov. Kevin Stitt can now decide to place it on a special statewide election. Such elections historically have a much lower turnout than a midterm or general election.

This is familiar territory for Stitt. He placed a state question for Medicaid expansion on a ballot in a low-turnout election in the summer of 2020, vocally opposing the measure. Still, voters approved the Medicaid expansion initiative, giving healthcare coverage to an estimated 200,000 Oklahomans. 

Proponents of SQ 820 have argued the signature verification process was problematic. The previous seven ballot initiatives had taken three weeks to be verified, while SQ 820 took seven weeks. Proponents were surprised that a new requirement sent signatures to a third-party vendor for verification — Western Petition Systems, a company founded by political pollster Bill Shapard.

An open records request by Oklahoma Watch found that there was no record of the vendor completing contractual obligations of running tests to ensure efficiency.

Due to an unusually restrictive ballot initiative process in Oklahoma, just seven ballot initiatives have appeared on a state election ballot in the last decade. Alongside Medicaid expansion, voters also approved measures to legalize medical marijuana and reform the state’s criminal justice system. Now, the state legislature is proposing three pieces of legislation that make it even more difficult to pass a state ballot question, including increasing the threshold for passage from a simple majority to 55% and imposing a signature threshold per county.

The trend of disrupting the process of citizen-led ballot initiatives is becoming a more popular political tactic in other states, too.

In 2018, two ballot initiatives in Michigan were circulated and passed the signature threshold, allowing citizens to vote on measures in the November election. The measures would increase the state minimum wage to $12 per hour and require small businesses to provide paid sick leave to their workers.

The legislature in Michigan decided to preemptively adopt the two initiatives the September before the election, instead of allowing them to be put on the ballot, and then amended them.

Liberal groups who proposed the ballot initiatives claim the “Adopt and Amend” strategy resulted in the state legislature intentionally watering down the bills signed by outgoing, term-limited Republican Gov. Rick Snyder. While the legislature had preemptively adopted the implementation of raising the wage to $12 per hour, it amended the initiative so the raise would not be implemented until 2030.

In the 2018 midterm election where the two ballot initiatives would have been placed, voters overwhelmingly passed three initiatives that did make it onto the Michigan ballot: they legalized recreational marijuana, instituted an independent group to reverse gerrymandered districts and increased access to voting and same-day voter registration.

In July 2022, Michigan’s Court of Claims ruled that the “Adopt and Amend” tactic used in 2018 was unconstitutional.

In the upcoming midterm elections, efforts to place hurdles in front of adopting citizen-led initiatives have made it to the ballots themselves. In Arizona and Arkansas, voters will decide on whether to amend state constitutions that raise the thresholds to adopt ballot measures and widen the capabilities for legislators to repeal and amend a ballot.

This past summer brought some victories for those in defense of ballot initiatives. Voters in South Dakota rejected the state legislature’s attempt at offering a ballot initiative that would make it harder to pass measures that raise taxes. In June, a federal judge rejected an attempt by Florida lawmakers in 2021 to limit financial contributions to legal organizations supporting ballot initiatives, ruling that the law violated the First Amendment. (In the past two decades, voters in Florida have used ballot initiatives to legalize marijuana, increase the minimum wage and restore voting rights for formerly incarcerated citizens — measures the state legislature and Gov. Ron DeSantis were all against.)

Highlighting procedural obstruction and anti-democracy tactics for political purposes is just the first step in reporting on this issue. More investigation and monitoring are needed to understand what interest groups stand to benefit in the clamp down of direct democracy.

For instance, recent research offers insight into the money at stake for opponents of state marijuana legalization. Researchers predict cannabis legalization will decrease the stock market value of major pharmaceutical firms and reduce demand for costly prescription drugs through state Medicaid programs. Additionally, churches and their affiliates — which are tax-exempt — have spent millions to oppose ballot initiatives on gay marriage and abortion rights.

It may be easier to cover the horse race of political candidates in the November elections, but ballot initiatives across the country will shape the lives of millions of Americans immediately — including those most marginalized. Ballot initiatives in 2022 include proposals to enshrine the right to abortion in state constitutions; raise the minimum wage; increase taxes on the wealthy to fund infrastructure, education and affordable housing; reform criminal justice; expand Medicaid; protect predatory debt collection; restrict employees’ ability to collectively bargain; and remove language from state constitutions that condone slavery as capital punishment.

To learn more about ballot measures, see our research roundup, “Ballot measures: Research shows how wording, ballot format and local news coverage can influence voters.”

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