Ballot Initiatives Are the Hidden Voting Rights Issue in This Election Cycle

As our representative system has become less democratic and more oligarchical, ballot initiatives have become more important to passing majoritarian legislation. The Left should take note and proceed accordingly.

In August, Kansas voters defied their Republican representatives by voting down an amendment to the state’s constitution that would have enabled the legislature to restrict or ban abortions. (Nathan Posner / Anadolu Agency via Getty Images)

In August, Kansas voters defied their Republican representatives by voting down an amendment to the state’s constitution that would have enabled the legislature to restrict or ban abortions. The victory for reproductive rights dramatically revealed a growing conflict between voters and legislators, normally obscured in a haze of hyper-partisanship and election handicapping. While media outlets obsess over the “culture war” politics that drive people to the polls, where they’re compelled to choose between mediocre candidates who do little to represent their priorities, voters have been using ballot initiatives to pass legislation their representatives won’t.

The vote in Kansas was dramatic because it came in the wake of the Supreme Court’s decision to overturn Roe v. Wade, and because it seemed to defy the Republican politics of a reliably red state, but the outcome was pretty typical of ballot-initiative politics these days. As our representative system has become more oligarchical, ballot initiatives have become more important to passing majoritarian legislation. And the Left should take note, because a lot of majoritarian issues concern the preservation or expansion of rights and the provision of better wages and benefits to working-class people.

Taking the Initiative

In twenty-four states (mostly states west of the Mississippi) and many municipalities,                   citizens can legislate via what are called citizen initiatives.

These initiatives have been part of the political landscape since the late nineteenth century, when the populist Farmers’ Alliance and the People’s Party forced democratizing reforms. Since that time, they have often been used as a vehicle for passing legislation that elected representatives won’t. When the representative and legislative process is working, there is little that citizen initiatives can add to the political process. However, our representative and legislative institutions are currently broken, and in a moment like this, initiatives become much more important for realizing the legislative priorities of citizens.

Citizen initiatives are not, as some advocates claim, a more purely democratic form of legislating than representative politics. For one thing, they’re costly, averaging about $8.6 million per initiative, putting them out of reach for ordinary people. This means that left-wing initiative campaigns can’t usually stay grassroots. Instead, they often involve advocacy organizations, campaign professionals, lawyers, consultants, advertisers, pollsters, and all the other components of a typical political campaign today.

The value of initiatives for those on the Left is not the creation of a more authentic politics. Rather, it’s that, in this moment of extreme partisanship and obsession with issues that magnify divisions between voters, initiatives have produced democratizing effects in the form of laws that expand inclusion, protect individual rights, and redistribute wealth and benefits to working people.

Take minimum-wage laws. Minimum wages can have a profound impact on the distribution of wealth and on the lives of people who work low-wage jobs. Polls regularly show that a majority of both Democrats and Republicans support raising the minimum wage. But despite the majority’s position, the federal minimum wage has been $7.25 since 2009, which in inflation-adjusted terms is 40 percent lower than it was in 1970.

Regardless of what party is in power, and despite its broad popularity, minimum-wage legislation doesn’t get passed. But when minimum-wage increases have been put before voters as initiatives in this century, they haven’t lost.

Today, we have a bifurcated labor market in which some states that are dominated by Democrats and states with ballot-initiative rights have significantly higher minimum wages than the rest of the country. Most states that adjust their minimum wages yearly based on changes to the consumer price index passed their laws via citizen initiative, including South Dakota, Washington, Oregon, Ohio, Montana, Maine, New Jersey, Colorado, Alaska, and Arizona. The broad-based support for these initiatives, and the inability or unwillingness of legislators to act on it, reveals the dramatic disconnect between citizens and their representatives.

If the minimum wage were the only issue that voters largely agreed on but legislators wouldn’t pass, that would hardly signal a crisis of representation or a deep-seated conflict between voters and their representatives. But the minimum wage is only the issue that reveals the tension most clearly.

Ever since Barack Obama signed the Affordable Care Act in 2010, Republican Party leadership has made opposing it a central pillar of their agenda. When the Affordable Care Act was signed into law, Medicaid was automatically extended to anyone with an income at or below 138 percent of the federal poverty level. However, in 2012, the Supreme Court ruled that the federal government could not enforce the expansion, leaving state governments to opt in or out. In the years that followed, nineteen states, all controlled by Republicans, refused to expand coverage. Yet in the past two electoral cycles, voters in Idaho, Maine, Nebraska, Oklahoma, Oregon, and Utah have all voted to expand Medicaid coverage, in spite of their elected officials. Medicaid, like the minimum wage, is a policy that has broad-based support in both red and blue states.

In addition to raising the minimum wage and expanding Medicaid coverage, polls show that majorities support a number of pressing policy issues, including access to abortion, public health care, reasonable gun control, police accountability, Wall Street regulation, and the need for action to address climate change. On these and other issues, the last several years have seen a number of dramatic outcomes on ballot initiatives.

In Florida, voters elected to enfranchise ex-felons, and Missouri voters rejected a right-to-work initiative. In addition to the Kansas outcome earlier this year, efforts to restrict or ban abortions have been rejected by voters in Arizona (1992, 68–32 percent), Colorado (2020, 59–41 percent), Florida (2012, 55–45 percent), Maine (1999, 56–44 percent), Maryland (1992, 62–38 percent), Massachusetts (1986, 58–42 percent), Mississippi (2011, 58–42 percent), Nevada (1990, 63–37 percent), North Dakota (2014, 64–36 percent), Oregon (2018, 64–36 percent), Rhode Island (1986, 66–34 percent), South Dakota (2008, 55–45 percent), and Washington (1998, 57–43 percent).

Of course, not all majoritarian views are inclusive or egalitarian. Voters in Alabama (2018, 59–41 percent), Louisiana (2020, 62–38 percent), and Tennessee (2014, 53–47 percent) have restricted abortion rights via initiative, for example. California voters recently rejected an initiative that would have reclassified independent gig-work contractors as employees, which would have extended to them minimum-wage laws, the National Labor Relations Act, and a variety of workplace protections.

When these issues interact with the logic of partisan elections, they are blended with a bunch of other issues, concerns, values, and identifications, which are then mobilized by candidates to enhance divisions rather than points of agreement. While these divisions matter — there are of course important differences between the two major parties — it means that majoritarian views are rarely discussed in legislatures. Partisan deadlock can exacerbate the tendency to emphasize division in the hope of securing control over a legislature. In other cases, single-party rule can block action on such views either because they are problematic for sustaining a dominant coalition or because the party in power stands in opposition to the policy favored by most voters. In this context, ballot initiatives have become increasingly important as tools to legislate for the majority.

The Establishment Strikes Back

As ballot initiatives have become more important for delivering democratizing effects like ensuring access to abortion, raising the minimum wage, or expanding access to public health insurance, elected officials have only grown more hostile. Many of the examples we have cited here involve voters in red states overcoming the opposition of the Republican representatives they have elected to get legislation passed. Rather than reorienting the behavior of representatives to better reflect the view of their constituents, these successes have instead produced a uniformly and intensifying oligarchical response.

Judiciaries have thrown up numerous obstacles to certifying ballot initiatives, or even eliminated the right to decide by initiative. For example, Mississippi’s right to initiative was destroyed because certification there required signatures from all five of the state’s congressional districts. However, when the state’s congressional delegation was reduced from five to four, the Supreme Court in the state interpreted the statute literally despite the obvious intent, and the state effectively lost its initiative rights. In a number of other states, judiciaries are moving goalposts around signature gathering, which both increases the effective signature requirement and increases the cost of initiatives, since all of this must be litigated.

Even when initiatives are on the ballot and win, they are often actively undermined or resisted by elected representatives in open defiance of the preferences of their constituents. For example, in the wake of the “Red for Ed” teachers’ strikes, Arizona voters approved a citizen initiative to raise taxes on the wealthy in order to improve the state’s badly underfunded public-education system. Following a previous attempt in 2018 that was disqualified on a technicality, Arizona Proposition 208 qualified for the ballot and won in 2020. The following year, the state legislature gutted Prop 208 by dropping tax brackets to cancel the initiative’s effects, and the year after that, the state’s supreme court overturned the initiative altogether, declaring it unconstitutional.

The Ballot Initiative Strategy Center has catalogued over two hundred bills introduced in state legislatures over the past two years that are designed to undermine or kill citizen initiatives. The 2022 election will see an unprecedented wave of initiatives on the ballot — referred there by legislatures — that would have a similar effect. Elected officials are attempting to eliminate voters’ right to legislate directly, concentrating legislative authority in their own hands. This should be understood as a transparently oligarchical reaction to the recent success of inclusive and egalitarian initiatives in red states.

The assault on ballot-initiative rights in this election cycle is a significant voting rights issue. Of course, voting rights are under attack in many states, and in ways that are often more obvious or pressing than the attack on ballot-initiative rights. But given the success of ballot initiatives in improving the material well-being and citizenship rights of millions of working-class Americans, there has probably not been as much attention paid to the issue as there should be.

Initiatives demonstrate what many democratic socialists and economic populists have long argued: namely, that people will act on their material interests and, because those interests are shared by most Americans, it is possible to build a political coalition around those interests. Initiatives show that people will vote in those interests in defiance of party identifications. Additionally, initiatives have demonstrated to thousands of grassroots campaigners in red states that it is possible to win real gains even in what can appear to be hostile terrain. This builds experience and a bench of effective activists and leaders as well as organizational capacity and potentially shifts in political culture.

The pushback to initiative efforts also reveals how oligarchical our politics have become. This is most obvious in red states, where the attack on initiatives is extensive and ideological. Democrats and their supporters are often hostile too, though more because they view initiative campaigns as competition for funding or as problematic for their coalitions or messaging. Like all legislators, Democrats resent the challenge to their legislative authority that initiatives represent. But this zero-sum thinking is distinctly counterproductive. Minimum-wage initiatives, for example, regularly outpoll candidates, which means the initiative is more likely to help the candidate than vice versa.

The Left must take ballot initiatives seriously for strategic reasons. Take abortion rights. The chance of securing abortion rights in Congress is exceedingly small. Though it is possible to revise the Supreme Court’s decision via court-packing, it appears unlikely. But citizens have repeatedly demonstrated the willingness and capacity to defend abortion rights via initiative. By all indications, Planned Parenthood is spending its political war chest on Democratic candidates who will probably fail to change the abortion calculus in any statehouses, and spending a comparative pittance on defending ballot-initiative rights. This is happening even though it’s hard to see a path to defending abortion rights in states like Kansas, Arizona, and South Dakota that doesn’t involve initiative rights.

In this antidemocratic moment in American politics, the potential of citizen initiatives to deliver democratizing effects can’t be overlooked. There’s a reason elected officials and activist judiciaries are targeting voters’ right to set policy via ballot initiative. Powerful and self-interested forces in the political establishment are paying attention. The Left should be too.

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Michael McQuarrie is the director of the Center for Work and Democracy at Arizona State University and coauthor of its report on ballot-initiative politics, Majority Rules: The Battle for Ballot Initiatives.

Benjamin S. Case is a postdoctoral scholar at the Center for Work and Democracy at Arizona State University. He is also the lead researcher on the ballot-initiatives project and coauthor of its report on ballot-initiative politics, Majority Rules: The Battle for Ballot Initiatives.

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