Jan 23, 2022 - Politics & Policy

Voting rights fight moves to state ballots

Illustration of elephant foot smashing a ballot box.
Illustration: Maura Losch/Axios

As federal voting rights legislation stalls in Congress and activists seek alternative forms of legislating, they're increasingly looking to the ballot initiative process to allow voters to make political changes on their own.

Why it matters: While that could be viewed as expanding direct democracy, these efforts are being met by opposition in overwhelmingly red and purple states. Lawmakers and leaders there are working to make it harder to legislate through the referendum process.

By the numbers: In 2021, the progressive Ballot Initiative Strategy Center tracked 93 bills introduced by Republican state legislatures that would make passing ballot measures more difficult. Thirteen of those bills passed in Arizona, Florida, Idaho, Arkansas and South Dakota.

  • So far this year, another 28 such bills already have been introduced by Republicans.
  • Democrats, meanwhile, have introduced their own set of bills to create ballot processes in Kentucky and Wisconsin, and expand access to voting in Florida, among other measures.
  • The Fairness Project, a progressive group that funds ballot measure efforts across the country, is spending $5 million on voter-education campaigns and litigation to ward off efforts by Republican-controlled legislatures to put new restrictions on the ballot process.

How we got here: The referendum has been used in the U.S. since the late 1700s, while South Dakota — in 1898 — became the first state to adopt a statewide ballot initiative.

  • Over the past two decades, ballot initiatives have been used by Republicans in blue states to recall governors and ban same-sex marriage.
  • More recently, they've been used by Democrats to expand Medicaid, legalize marijuana, raise the minimum wage and restore voting rights to people with felony convictions in states.
  • In both cases, the referendum process has given voters a voice where their elected officials lacked legislative juice.

What we're watching: In swing states such as Pennsylvania, Michigan and Nevada, both parties are turning toward the ballot process to enact voting measures and establish independent redistricting commissions.

  • There’s now also a record number of democracy-related ballot measures filed for this year.

Meanwhile, in South Dakota, advocates are rallying around litigating a resolution by the state's Republican legislature. It would raise the threshold for approval of a ballot measure to a three-fifths (60%) supermajority.

  • South Dakota Gov. Kristi Noem also recently signed a law requiring signature petitions to be in 14-point font. That and requirements that petitions be on a single page has resulted in massive piles of signature papers and more pages that have to be flipped through to see the proposal in the bigger text.
  • In Missouri, a proposed resolution would increase the number of signatures needed to put a measure to a statewide vote, and raise the threshold to approve an amendment from a simple majority to two-thirds.
  • In Arkansas, a new law bars canvassers from being paid for each signature they collect and requires them to be Arkansas residents and U.S. citizens. That's also being challenged in court.

What they're saying: “The threshold is too low,” Missouri state Rep. Mike Henderson told the Missouri House elections committee last week.

  • “The Missouri constitution is a living document, but it's not, and should not be, an ever-expanding document," the Republican said.
  • Another GOP legislator, Rep. Dan Shaul, suggested the current law requiring a simple-majority vote puts "the constitution on the same level as dogcatchers" and allows liberal voters from places like St. Louis and Kansas City to carry too much weight.
  • Kelly Hall, executive director of The Fairness Project, told Axios: "All of these barriers may not feel like they're insurmountable, but just like the other accounts on voting rights, it's sort of cumulative, which makes using direct democracy harder."
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