This article appears in the February 2024 issue of The American Prospect magazine. Subscribe here.
In Arkansas, Republican state lawmakers have started going after their most dangerous political opponents: their own voters. They can’t quite comprehend why voters deliver wins on controversial ballot questions like legalizing medical marijuana and implementing a graduated minimum wage. Some of the poorest Americans now earn one of the highest minimum wage rates in the South—at $11 per hour—after voting by a staggering margin almost six years ago to give themselves a pay hike.
But with overwhelming majorities in both chambers of the General Assembly, Republicans decided to opt out of “consent of the governed.” Two years ago, they put a constitutional amendment on the ballot, asking voters to participate in their own collective defenestration by increasing the threshold for passing constitutional amendments, initiated acts, and referendums to a supermajority of 60 percent. (They had tried and failed before in 2020.) The people voted not just no, but hell no, by nearly 20 percentage points, which translates into Republicans, not just Democrats or independents, rejecting the gambit in this GOP trifecta state.
No matter. Last March, they passed legislation to require ballot campaigns to collect tens of thousands of signatures from at least 50 of the state’s 75 counties, 35 more than the previous threshold and five more than the 2020 constitutional amendment had proposed. Republican Gov. Sarah Huckabee Sanders promptly signed it.
Recruiting enough people to collect the necessary signatures from registered voters in a state that has some of the lowest voter turnout and registration rates in national elections was a monumental challenge even before Republican lawmakers changed the rules. In Arkansas, canvassers cannot be paid per signature and must be both citizens and state residents, and must pass a criminal background check.
“They are hell-bent on making it more difficult for citizens to put any kind of measure before voters,” says Bill Kopsky, executive director of the Arkansas Public Policy Panel. “The legislature here doesn’t like the decisions that voters are making. And so, they’re trying to ban voters from making decisions.”
Republicans tout preferences for limited government and individual liberties. No longer willing to make coherent cases to voters, in many cases they have resorted to exquisitely gerrymandered state legislative and congressional districts, designed to eliminate challenges to one-party rule. When voters respond with successful ballot measures to counterbalance that overreach, state lawmakers, particularly in trifecta states like Arkansas and Ohio, have become some of the most enthusiastic practitioners of direct-democracy backsliding. What they really prefer is acquiring and entrenching power.
AL DRAGO/AP PHOTO
Arkansas Gov. Sarah Huckabee Sanders responded to controversies about official spending by trying to exempt her records from public view.
If voters cast ballots in accordance with the party line, of course, there is no problem. If they support Democratic-identified issues, like marijuana legalization, higher minimum wages, and most recently abortion and broader reproductive rights—issues that actually appeal to large segments of the electorate—then the Republican counterreaction has been to prevent ballot measures from getting to the ballot, either through imposing hurdles to qualifying, writing deceptive ballot language, raising thresholds for passage, or eliminating them altogether. And when ballot measures manage to pass despite these obstacles, Republican legislatures have worked to invalidate them—disregarding the consent of the governed when it conflicts with their conservative policy aims.
These actions resemble a paternalistic “my way or the highway” approach, to ensure that every single election can only achieve a very specific outcome on Republican terms. Power can only be exercised by small groups of political far-right partisans who at times side with business interests. If the people make an unwelcome choice, then it’s time to curb their voting rights.
THIS BREAKDOWN IN EARLY 21ST-CENTURY AMERICAN POLITICS recalls the period that spawned the direct democratic reforms that are under siege today. At the dawn of the Progressive Era, at the end of the 19th century, coalitions of farmers and urban workers across the country began to resist the businessmen controlling railroads and other sectors and the party bosses running cities and towns. Populist reformers promoted people power (of white men; women did not vote until 1920, and Native Americans attained voting rights in 1924, but states ignored the law for decades) to counteract these influences, through initiative statutes, constitutional amendments, and referendums on previously passed legislation.
South Dakota was the first state to establish citizen-initiated ballot measures, earning approval in 50 of 59 counties in 1898. Opposition was virtually nonexistent. The South Dakota newspaper Vermillion Plain Talk (which still publishes today) thundered, “The issue of the future is whether or not the people are to rule this country.”
Arkansas passed its first-in-the-South direct-democracy reforms in 1910 after a statewide rail tour by William Jennings Bryan, the three-time Democratic Party candidate for president, and state political luminaries. Over the next decade, 12 mostly Midwestern and Western states approved initiative or referendum processes, including California, where progressive Gov. Hiram Johnson, who ran alongside Theodore Roosevelt on the Progressive Party ticket in 1912, ushered in the most robust direct-democracy framework in the nation. Today, 26 states and the District of Columbia allow initiatives and referendums.
Some of Arkansas’s most important policy reforms have been implemented through ballot measures: workers’ compensation, term limits, campaign finance reforms, and more recently medical marijuana and minimum-wage increases. Others have been voted down: Recreational marijuana failed last year. A proposed constitutional amendment pending with the attorney general that would permit abortions up to 18 weeks would be challenging in one of the most religious states in the country.
When politicians attempt to deny citizens rights and privileges they’ve held for decades, ballot measures can come into play as a tool to push back on the overstepping. Sanders learned this lesson firsthand when she tried to effectively invalidate the 57-year-old Arkansas Freedom of Information Act.
Republican actions resemble a paternalistic “my way or the highway” approach, to ensure that every single election can only achieve a very specific outcome.
Over the past year, Sanders’s domestic and international official travel, including a trade mission to the Paris Air Show, attracted the attention of Matt Campbell, an attorney then blogging at BlueHogReport, who had the temerity to request travel documents related to the governor’s spending on travel and security. The state police denied Campbell’s request based on security concerns, but did deliver some records. Campbell, now an investigative reporter with the Arkansas Times, found receipts for a nearly $20,000 lectern, made of wood and trimmed around the edges in blue, and purchased with state-issued credit but apparently not through the required procurement channels. “Lecterngate” entered the state’s political lexicon, and the lectern entered the world of Arkansas memes. (A “snowpodium” popped up on X, formerly known as Twitter, after an early-January snowfall.)
In response, Sanders convened a special session of the legislature to pursue a new law that would exempt a broad swath of the governor’s records from public view. The attack on FOIA riled up this deeply conservative rural state and united people across the political spectrum—from far-right Republicans to far-left activists—in a battle to preserve access to government records. The bipartisan revolt that erupted among state lawmakers forced Republicans to pass a narrower limitation on state FOIA laws—and they agreed that questions about Sanders’s travel and expenses were valid. A legislative audit is in progress.
Arkansas Citizens for Transparency (ACT) emerged out of the controversy with a ballot measure campaign for a constitutional amendment to enshrine the right to access public records, along with an initiative to prohibit the legislature from restricting residents’ access to information about government processes from sources like public meetings, notices, and records, among other provisions. “When the legislature went to the point of trying to make it more difficult to engage in direct democracy, that woke up a lot of people,” says former Democratic state senator Joyce Elliott, executive director of the civic engagement group Get Loud Arkansas.
“Try to make sure people could not use the FOIA to get information, starting with a lectern?” adds Elliott, who is working with ACT. The governor, she believes, would have been better off admitting that she made a mistake rather than going after public-records laws.
The controversy may determine Arkansas voters’ tolerance for political meddling with long-established rights. Elliott believes that Lecterngate will get voters to the polls. “Truly, this will be on-the-ground, local-interest turnout more than anything else,” she says. Ballot questions on ending state taxes on diapers and menstrual products, reinstating paper ballots, and a suite of education reforms could also go before voters—if they make the cut. A constitutional amendment for vocational/technical schools grant and scholarship funding is already set; amendments passed by the legislature go straight to the ballot. These potential ballot measures could generate more heat than the presidential race, where the Republican at the top of the ticket will easily take the state’s six electoral votes. But in mid-January, Arkansas Attorney General Tim Griffin sent the ACT ballot measure writers back to their keyboards yet again to come up with language that passes muster. The clash may lead to a see-you-in-court moment.
RYAN SUN/AP PHOTO
Supporters react as preliminary results come in for Michigan Proposal 3 on Election Day, November 8, 2022, in Detroit, Michigan.
IN A 2023 WHITE PAPER, JOHN MATSUSAKA, EXECUTIVE DIRECTOR of the University of Southern California’s Initiative and Referendum Institute, examined state legislative ballot measures from 1960 to 2022 to determine the incidence and the causes of direct-democracy backsliding. Although Matsusaka did not find “an increasing trend” during this period (rather the number of anti-democratic ballot measures “peaked” between 1995 and 2004), he notes that Republican legislatures (64 percent) have been out in front in putting forward proposals to restrict direct democracy. Democratic legislatures came up with far fewer (19 percent) of those types of plans, while the rest originated in mixed chambers.
“Anti-direct-democracy efforts were largely driven by elites—ordinary voters did not appear to share the negative orientation of their elected representatives,” Matsusaka writes.
The reaction against ballot measures coincided with the rise of the religious right. Anita Bryant, a popular 1960s singer who promoted Florida orange juice, was the voice and the face of crusades against same-sex marriage ballot measures that began appearing across the country in the mid-1970s. Religious conservatives doubled down on their hostility toward gays, and narrowed their focus to same-sex marriage. By 2004, Karl Rove, one of George W. Bush’s key advisers, made wedge-issue ballot measures central to the president’s re-election campaign, putting anti-same-sex-marriage initiatives on the ballot in 11 states. The goal was to draw out social conservative voters for Bush, and those moves increased his county-level vote in some states.
But religious conservatives did not count on changing social attitudes that would culminate in the 2015 Obergefell v. Hodges Supreme Court decision that legalized same-sex marriage and invalidated all state prohibitions. Yet their LGBTQ attacks have never really subsided. Instead, they’ve morphed into new campaigns against transgender people. Missouri and California have gender identity initiatives in the signature-gathering phase; both could potentially be on the 2024 ballot.
Mississippi state lawmakers have succeeded in sliding direct democracy out of sight.
Partisan gerrymandering has also fueled direct-democracy backsliding. “There is a strong trend of lawmakers, particularly in heavily gerrymandered states, seeing the ballot initiative process as a threat to their power, as opposed to a legitimate mechanism for policymaking,” says Alice Clapman, senior counsel for democracy at the Brennan Center, pointing out that Ohio, Arkansas, and Missouri are consistently three of the most heavily gerrymandered state legislatures.
Some Republican governors and legislatures have moved to block approved ballot measures, or in some cases to simply ignore them. Seven states have gone that route to secure Medicaid expansion. Maine passed Medicaid expansion in 2017 by an overwhelming margin, but Republican Gov. Paul LePage fought off every attempt at implementation. His Democratic successor Janet Mills finally steered the program in place, signing an executive order on her first day in office in 2019.
In Missouri, voters approved Medicaid expansion in 2020; the next year, the state legislature excluded the expanded coverage from its annual budget. But after a contentious legal fight, the state supreme court ruled the ballot measure constitutional, and 275,000 low-income adults got coverage.
Like FOIA in Arkansas, Medicaid expansion demonstrated the appeal of popular policies despite hyper-partisan politics. “Medicaid was actually the issue in Missouri that opened up a lot of people’s eyes about the state of our democracy initiative petition process, because you had a coalition in support of Medicaid that was on the right, the left, included business, included everybody,” says Richard von Glahn, the political director of Missouri Jobs with Justice, one of the Medicaid expansion ballot measure leaders. “We had politicians react to that, voting to overturn that vote and saying, ‘I’m proud to stand against the will of the constituents in my district,’” von Glahn says.
For the moment, Mississippi state lawmakers have succeeded in sliding direct democracy out of sight. After voters approved medical marijuana in 2020, the state supreme court ruled the following year that the state’s ballot initiative and referendum processes were unconstitutional, since the state constitution specifically refers to collecting signatures from five congressional districts, not the four that now exist since decennial reapportionment in 2000. The legislature dealt with the ensuing fury by passing a medical marijuana law.
Tweaking the number of congressional districts would have been the easiest fix. But with a Medicaid expansion ballot question already certified for signature-gathering, they did nothing, and the measure died. Fears about a possible abortion ballot measure, along with the scope of issues voters should decide and the threshold of required signatures, also continue to complicate the path back for initiatives and referendums.
Some state officials have resorted to complex, deceptive, or purely partisan ballot language to confuse or sway voters. Missouri Secretary of State Jay Ashcroft is charged with writing brief ballot measure summaries, and has invited heated criticism for his partisan language. Several of his summaries for “The Right to Reproductive Freedom Initiative,” which may go before voters in November, were strewn with partisan buzzwords. They read, in part:
Do you want the Missouri Constitution to: Allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice; nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion; allow for laws to be enacted regulating abortion procedures after Fetal Viability, while guaranteeing the right of any woman, including a minor, to end the life of their unborn child at any time …”
Last fall, a three-judge panel of the Missouri Court of Appeals Western District decided that Ashcroft’s summaries were “argumentative,” misrepresented the petition, and skewed the summaries to focus solely on abortion. The appeals court rewrote those sections to read:
“Do you want to amend the Missouri Constitution to: Establish a right to make decisions about reproductive health care, including abortion and contraceptives, with any governmental interference of that right presumed invalid; remove Missouri’s ban on abortion; allow regulation of reproductive health care to improve or maintain the health of the patient …”
There has also been partisan interference with specific ballot campaign activities. Rolling Stone has reported on anti-abortion activists in South Dakota harassing signature gatherers for a reproductive rights ballot measure, and some local officials are trying to ban signature-gathering in public places. Arizona, Florida, and Nevada have also used legal maneuvers and dirty tricks to try to keep abortion measures off the ballot. (Florida’s ploys didn’t work; in January, an abortion constitutional amendment qualified for the November ballot.)
Von Glahn says majority rule is under attack. “You ask most voters, you know, how does an election get decided? The answer is quite simple. The sides with more votes win. That is how we understand politics to work, that is how politicians themselves get elected. They seem to think that there should be a different standard when the ideas that come to the ballot are proposed directly by citizens of their state.”
IF KANSAS AND KENTUCKY VOTERS’ REJECTION OF CURBS on abortion didn’t jolt Republican state legislators out of their unhealthy fixations on rigid social conservative priorities, the Ohio defeat certainly did. Unlike most states east of the Mississippi River, Ohio has had an initiative and referendum framework for more than a century. Voters have been restrained, passing 20 citizen-initiated constitutional amendments between 1913 and 2022, which suggests a more nuanced approach to the uses of direct democracy.
The state has passed laws allowing individual municipalities to decide whether or not to allow alcohol sales, three years before the state banned them and six years before the 18th Amendment completely banned alcohol nationwide. Voters have banned food taxes and granted home rule to counties. They’ve also pulled from conservative playbooks, imposing photo ID requirements for voting and a one man/one woman standard for marriage.
DAVID GOLDMAN/AP PHOTO
But last year, Republican Secretary of State Frank LaRose, in a quest to derail an abortion and reproductive rights amendment, ignored that history, as well as the stories of trauma endured by women in Ohio and elsewhere who experienced pregnancy complications and could not get abortions in their states.
LaRose, who aspires to be Ohio’s next U.S. senator, put together a multipronged effort. First, he pushed forward a ballot measure scheduled for the dog days of August that would require a 60 percent supermajority vote for a citizen-initiated constitutional amendment to pass, while increasing the signature-gathering threshold in all 88 counties instead of half of them, and eliminating the ten-day period in which ballot drives can collect more signatures if they don’t succeed the first time. This would have had the immediate effect of raising the threshold for passing the abortion rights ballot measure, scheduled for that November.
Ohio lawmakers, who had previously eliminated the expensive, low-turnout August elections, backtracked once they concluded that low turnout was just what they needed to pass the supermajority proposal. Instead, the final tally was 57 percent to 43 percent, a decisive defeat in the effort to take away voters’ rights.
LaRose also came up with ballot language for the amendment, designed to push religious and political hot buttons by using words like “unborn child,” instead of scientific terms like “fetus.” Ohio’s elected supreme court, with a 4-3 Republican majority, backed him up.
But the Ohio ballot measure organizers benefited from years of organizational efforts responding to attacks on reproductive freedom, right up to the Supreme Court’s Dobbs decision. The campaign had multigenerational appeal, from people who remembered when abortion was completely illegal to young women who had never known a time when abortion access did not exist. Democrats, Republicans, and independents supported the campaign, which also benefited from the quieter 2023 political season and Ohioans’ views on government involvement in personal medical decision-making that diverged wildly from their elected representatives’ preferences.
The November reproductive rights measure passed by 13 percentage points. Recreational marijuana, which was also on the ballot, also passed by decisive margins.
The two proposals’ popularity plus the August election reversal helped people connect the dots about the GOP strategy. “It was not hard for voters in Ohio to say whoa, this isn’t passing the smell test,” says Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, a national progressive voting rights group. “Ohio shows us that when you put issues on the ballot that are widely popular and people want to see action on, that is highly motivating, regardless of party affiliation.”
The passage of the November ballot initiative means that abortion remains legal in Ohio and that other reproductive rights, such as contraception access, have been enshrined into the state constitution. Those facts have not deterred two far-right Ohio Republicans, who signaled their intent to thwart enactment of the initiative. They have even proposed delegitimizing the state judiciary by giving the Ohio legislature the “exclusive authority” over implementing the provision on abortion and reproductive rights.
JOHN MINCHILLO/AP PHOTO
Liberal ballot initiatives for legalized marijuana, minimum-wage increases, and abortion rights have flourished in recent years.
Republican House Speaker Jason Stephens has scoffed at the proposal. “This is ‘Schoolhouse Rock’ type stuff,” he told the Statehouse News Bureau, referring to the children’s television program that premiered in 1973. “We need to make sure we have the three branches of government.” Planned Parenthood Advocates of Ohio’s Lauren Blauvelt, chair of Ohioans for Reproductive Freedom, the ballot measure organizers, is more cautious, recalling that nearly a decade ago, lawmakers did not think a six-week abortion ban would ever become law.
Expect state judges to frown on threats to judicial independence. “Ultimately, courts are going to be the arbiters of these claims, applying their state constitutions, so it’s a little hard to predict where they’ll come out,” says Clapman of the Brennan Center. “But I suspect they will be skeptical of efforts that are not consistent with the state constitution.”
Similarly, Ohio’s Republicans are eyeing changes to restrict the recreational marijuana measure, which was an initiative statute and not a constitutional amendment. Some of the ideas include redirecting tax revenue from marijuana sales to build jails and hire more police.
“They overstepped,” explains Molly Shack, co-executive director of the Ohio Organizing Collaborative. “They’re dealing with weird culture-war issues, trying to ban whatever their version of woke bogeyman is for the day.”
THE PAST TWO YEARS DEMONSTRATE THAT “EXPERT” CONCLUSIONS about voter motivations on controversial initiatives and referendums are inexact, if not flat-out wrong. In Arkansas, voters appear poised to preserve public-records access. Abortion is another matter entirely; carving out even limited reproductive rights would be an impressive feat. But only if these two campaigns can work through the legal clarifications required by the attorney general and gather the required signatures to make it onto the November ballot.
Arkansans tend to view statewide questions through hyperlocal rather than partisan lenses. Will they just put their heads down and get to the task of gathering mountains of verifiable signatures? And after that, will they make it plain to their elected representatives that they want to see different voting patterns? Or will they continue to support their own local representatives, who might just support the backsliding that undermines their own small-d democratic agency?
At least four states—Arizona, California, Missouri, and North Dakota—could place measures on the ballot that affect direct-democracy processes, such as signature-gathering geographies, supermajority requirements, and what state lawmakers can and cannot do once a ballot measure is approved by voters. Abortion measures could be on the ballot in as many as a dozen states this year.
“The reality is these elected officials who are circumventing the people that they’re supposed to represent in government and undermining their will and their voice is out of step of what democracy is supposed to be about,” says Fields, of the Ballot Initiative Strategy Center. “It’s supposed to be collaborative; our legislators are supposed to be our representatives, it’s supposed to be a partnership.”
What is clear is that if state lawmakers can’t get voters to strangle direct democracy, they will step up and do it themselves. Ohio lawmakers have said as much, and Mississippi and Arkansas lawmakers have led the way. The amount of time spent trying to confuse people about the issues of the day is only increasing. For many elected representatives, the burgeoning disinformation and misinformation campaigns around tackling problems like public corruption, substandard health care, and low wages are less critical than their obsessions with controlling voters to maintain their grip on political power, through diversionary tactics designed to divide and conquer.
