Category Archives: direct democracy

“Ohio Republicans launch effort to make citizen-led amendments harder to pass for voters”

Ohio Capitol Journal reports on a new push to limit direct democracy in Ohio. Following in South Dakota’s footsteps, and just a little over a week after Election Day, Ohio Republicans are talking about pushing an initiative that would require “citizen-led constitutional amendments [to] gain a 60% supermajority at the ballot for passage.” (South Dakota’s effort, which failed resoundingly at the polls, similarly targeted initiatives that would impact the budget). It is frankly not clear to me what the local driver for this initiative is–except that this has become a national trend. In the meanwhile, a proposed House bill seeks to “rewrite the underlying infrastructure of how the state conducts elections.”

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“Arizona voters reject effort to enact stricter voter ID law”

AP News says it is now clear that Proposition 309,  which would have imposed additional hurdles for absentee ballots and stricter voter ID requirements, has failed. The measure has fallen short by about 20,000 votes–over the recount margin.

“Arizona voters who overwhelmingly cast their ballots by mail have rejected a measure that would have required them to add more information to the simple signature and date they now put on the back of the return envelope.”

Had the measure passed, voters would have been required “to write their birthdates and add state-issued voter identification numbers, driver license or identification card numbers or a partial social security number to affidavits rather than just signing and dating them.” The back-of-envelope signature used by many counties would also have been changed to require that they be placed into a second envelope.

Meanwhile, those who lack photo IDs issued by state, tribal, or federal authorities would no longer have been able “to vote by presenting two alternate documents, such as a utility bill.”

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My New Article Posted on SSRN: “Election Reform: Past, Present, and Future”

I have posted on SSRN a draft of this encyclopedia article, forthcoming in the Oxford Handbook of American Election Law (Eugene Mazo, editor, forthcoming 2023). Here is the abstract:

This Chapter considers what election “reform” is and why many Americans want it; who has successfully reformed election rules in the United States and how; the current Supreme Court’s role as a barrier to many progressive election reforms; and the future of election reform in a hyper-decentralized, polarized electoral system. Throughout American history, dissatisfaction with substantive policies and with political and economic inequality, including across race and gender, has fueled interest in changing political arrangements. Proposals for political change also prompt reactions by those opposing them. Some election reforms have already been enacted and implemented, while others have failed. Constitutional change is difficult given a cumbersome amendment process requiring supermajority support. Other reasons for failure include lack of sufficient popular support, self-interested legislative resistance to popular ideas and the absence of a direct democracy workaround, and language in the United States Constitution, at least as interpreted by the Supreme Court. In the current hyper-polarized political system, bipartisan cooperation on large-scale election reforms including constitutional amendments will be rare, and one-party supported statutory reforms or those passed through direct democracy will be more common. The biggest impediment to current progressive-oriented reform is the jurisprudence of the conservative Justices who make up a majority on the Supreme Court. It is harder to predict the success of election reforms in the longer term.

Keywords: election reform, constitutional amendments, voting rights, campaign finance, redistricting, direct democracy, political polarization, Voting Rights Act, Fifteenth Amendment, Seventeenth Amendment, Nineteenth Amendment, Twenty-Third Amendment, Twenty-Fourth Amendment, Twenty-Sixth Amendment

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“Republicans look to restrict ballot measures following a string of progressive wins”

Politico:

Republicans across the country are working to make it harder to pass ballot measures — a direct threat to abortion-rights advocates and other liberal groups’ efforts to bypass governors and legislatures and take issues directly to voters.

The next major test for the strategy comes in November: Arizona and Arkansas’ GOP-controlled legislatures are asking voters to approve constitutional amendments that would raise the threshold for ballot initiatives from 50 percent to 60 percent. Arkansas’ proposal would apply to constitutional amendments and citizen-initiated state statutes on any subject matter, including abortion. Arizona’s applies only to taxation-related measures, though some see it as a prelude to a broader version.

“Our state constitution … should only be amended when there is genuine consensus among voters,” said Arkansas state Rep. David Ray, the Republican who sponsored the proposed amendment. “[The ballot measure] provides a much-needed guardrail so that big money, out-of-state special interests quit trying to hijack our state constitution and ballot initiative system by pulling the wool over voters’ eyes and effectively buying new laws and constitutional amendments.”

The Republican push to regulate ballot measures has escalated in recent years as citizen-led initiatives have been used to legalize marijuana, expand Medicaid, create independent redistricting commissions and raise the minimum wage in purple and red states.

But the tactic is under new scrutiny after deep-red Kansas’ anti-abortion referendum failed by a wide margin, which gave abortion-rights supporters around the country hope that ballot measures can be a viable way to circumvent GOP-controlled legislatures and restore access to the procedure.

Some progressives worry they could lose one of their last remaining tools to defend or advance abortion rights in a post-Roe country.

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“GOP escalates fight against citizen-led ballot initiatives”

AP:

Hundreds of thousands of people signed petitions this year backing proposed ballot initiatives to expand voting access, ensure abortion rights and legalize recreational marijuana in Arizona, Arkansas and Michigan.

Yet voters might not get a say because Republican officials or judges have blocked the proposals from the November elections, citing flawed wording, procedural shortcomings or insufficient petition signatures.

At the same time, Republican lawmakers in Arkansas and Arizona have placed constitutional amendments on the ballot proposing to make it harder to approve citizen initiatives in the future.

The Republican pushback against the initiative process is part of a several-year trend that gained steam as Democratic-aligned groups have increasingly used petitions to force public votes on issues that Republican-led legislatures have opposed. In reliably Republican Missouri, for example, voters have approved initiatives to expand Medicaid, raise the minimum wage and legalize medical marijuana. An initiative seeking to allow recreational pot is facing a court challenge from an anti-drug activist aiming to knock it off the November ballot.

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“Michigan election board rejects abortion rights initiative”—Republican Canvassing Board Members Seem to Be Violating their Ministerial Duty to Put Measure on the Ballot

AP:

 Michigan elections board on Wednesday rejected an abortion rights initiative after its two Republican board members voted against putting the proposed constitutional amendment on the November ballot.

The two Democrats on the Board of State Canvassers voted in favor, but getting the measure on the ballot required at least three votes of the four-member board. The Reproductive Freedom for All campaign, which gathered signatures to get the measure on the ballot, is expected to appeal to the Democratic-leaning Michigan Supreme Court in the coming days….

The Bureau of Elections verified last Thursday that the abortion ballot initiative petition contained enough valid signatures for the amendment to qualify for the ballot and recommended that the state Board of Canvassers approve the measure.

On Wednesday, Mary Ellen Gurewitz, a Democratic canvasser, said the board had “no authority to reject this petition due to challenges to the content of the petition.” But Tony Daunt, a Republican canvasser, said errors in some petition language were “egregious.”

The Michigan Board of Canvassers, comprising two Republicans and two Democrats, has become increasingly partisan in recent years.

The board made national headlines following the 2020 presidential election when one member, who has since resigned, abstained from voting to certify Joe Biden’s victory in the state. The other GOP board member, who voted to certify, wasn’t nominated again by the state GOP party and was replaced by Tony Daunt, the board chairman.

Earlier this year, two leading candidates for the GOP nomination for governor were dropped from the primary ballot after the board deadlocked along partisan lines on whether too many fraudulent signatures on their nomination papers made them ineligible. A tie vote meant the candidates lost.

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“Arizona’s Supreme Court blocks an election reform ballot measure, voiding over 238,000 petition signatures.”

NYT:

Arizona’s ballot in November will exclude a sweeping election reform proposition after the state Supreme Court upheld a decision to throw out the majority of the nearly half-million petition signatures collected.

The measure would have checked the power of the state Legislature to overturn the results of a federal election, as Republican allies of former President Donald J. Trump attempted to do after he lost to Joseph R. Biden Jr. in 2020 in the battleground state.

It also would have established same-day voter registration in Arizona, restored a permanent early voting list that Republicans repealed last year and prohibited partisan audits like those initiated by state lawmakers.

In a two-page order signed on Friday by Chief Justice Robert M. Brutinel, the Arizona Supreme Court affirmed a lower court judge’s earlier decision to reject more than 238,000 signatures from the petition to place the measure on the ballot.

To qualify for ballot access, the signatures of 237,645 Arizona voters were needed to support the measure — and more than 475,000 signatures were collected by a coalition of groups aligned with Democrats. But an onslaught of challenges followed from conservatives, including those with ties to Mr. Trump, with the petition drive falling short by 1,458 signatures and supporters of the measure decrying the ruling.

“What we’re seeing here is the result of 20 years of Republican efforts to chip away at democracy in Arizona,” Stacy Pearson, a spokeswoman for the coalition supporting the ballot measure, said in an interview on Tuesday.

The Arizona Free Enterprise Club, a conservative group that challenged the signatures and whether petition circulators enlisted as part of the effort had complied with the state’s rules, called the measure a “radical” election initiative.

Kory Langhofer, a lawyer for the group, said in an email on Tuesday that the invalidated signatures included 20,000 duplicates.

“These cases are extraordinarily difficult for the courts and litigants alike,” Mr. Langhofer said. “They involve hundreds of thousands of signatures and must be resolved in a few weeks, before ballots print. Given those hurdles, only sophisticated clients can bring or defend cases like this.”

The measure’s opponents included a Republican-backed election law group called Restoring Integrity and Trust in Elections, which is led by Derek Lyons, a former White House counsel for Mr. Trump.

The group, whose board members include William P. Barr, an attorney general under Mr. Trump, described the election reform package as a “liberal wish list of election integrity-destroying measures.”

Democrats who backed the initiative accused the Arizona Supreme Court of defying the wishes of voters and noted that five of its seven members were appointed by Gov. Doug Ducey, a Republican who opposed the measure and earlier expanded the court.

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“EXCLUSIVE: Recall Gascon Committee Knowingly Turned in Invalid Petition Signatures, Misled Donors and Volunteers”

RedState:

What happened?

For once, despite the rhetoric being hurled, it’s not Logan’s fault. The bottom line, according to witnesses, whistle-blowers, and documents reviewed by RedState:

The Recall George Gascón effort failed because the committee’s purse strings were controlled by political consultants who were being paid by the campaign, and who contracted with vendors on the basis of cronyism or financial gain instead of competency. Despite the vast sums of money raised and spent, the quality of the signatures submitted to LA County was “embarrassingly incompetent,” in the words of one former professional who viewed some of the materials provided to RedState.

Even worse, a whistle-blower speaking to RedState on condition of anonymity provided information seeming to demonstrate that the woman widely acknowledged as controlling the campaign committee, Cassandra Vandenberg:

knew for more than a month that the committee’s progress was woefully inadequate,

knew that signatures from out-of-county people and non-voters were being counted by the committee as verified signatures and even instructed campaign workers to leave them on the petitions “because we need the numbers,” and

instructed campaign workers, in front of multiple Deputy District Attorneys, to forge the signatures of circulators in the attestation portion of the petition forms that are signed under penalty of perjury.

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Arizona Coalition Submits Signatures for Initiative to Expand Voter Registration and Early Voting

WaPo:

Citing efforts by Arizona’s Republican-controlled legislature to restrict access to voting, a coalition of advocacy organizations, community groups and volunteers is attempting to drastically expand voting rights in the battleground state through a ballot initiative. On Thursday, the coalition gave state elections officials the signatures of more than 475,000 Arizonans who want to see the issue put to a vote in November.

The “Arizona Fair Elections Act” ballot initiative seeks to enact dozens of provisions to expand access to voting and lessen the possible influence of special interests on state lawmakers….

The initiative, among other things, would allow voter registration on Election Day; would ban purging of the Permanent Early Voting List for those who have previously not voted; would allow food and water to be given to people waiting in lines to vote; and would reverse current law to allow early ballots to be turned in by those who are not just family members or caregivers.

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“A Systematic Assault”: GOP Rushes to Change Election Rules to Block Medicaid in South Dakota

This article from Bolts Magazine demonstrates just how unabashed Republican efforts to entrench the party and its policies are at this political moment. In this instance, the goal is to prevent South Dakotans from side-stepping the Republican controlled legislature to pass Medicaid expansion through ballot initiative by changing the Constitution. Since 2018, voters in Republican controlled Idaho, Missouri, Nebraska, Oklahoma, and Utah have all adopted Medicaid expansion through ballot initiatives. This “trigge[ed] intense backlash by Republican politicians against procedures of direct democracy.” Their efforts were successful in Idaho and Utah, and so far also they have also been successful in South Dakota in response to previous initiatives. South Dakota was the first state to adopt the initiative in the 19th century.

Inspired by Progressive Era demands for new checks on politicians, the state’s 1898 reform empowered ordinary citizens to initiate ballot initiatives and it has been used expansively ever since. 

Just over the past decade, South Dakotans have approved initiatives to raise the minimum wage, create an independent ethics commission, and legalize cannabis.

Republican politicians have responded by gradually restricting the initiative process.

The article describes the current effort which seeks to raise the threshold of support to 60% for initiatives that significantly impact the state budget. This might make sense in the abstract, but in context, it is stinks of fencing out one’s political opponents and thwarting public priorities.

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California Election Law Professors Brief Arguing that Proposition 22 (the Gig Workers) Initiative Violates the California Constitution

On behalf of Joey Fishkin, Franita Tolson, and me, and with co-counsel Kathryn Eidmann and Mark Rosenbaum of Public Counsel, we just filed this proposed amicus brief in the California Court of Appeal in the Proposition 22 case. Here’s the introduction to the brief:

Amicus California Election Law Professors has reviewed the parties’ briefing and writes to address a single issue on which the parties disagree: whether a voter initiative legislating on one subject may constitutionally hamstring the ability of the California Legislature to pass legislation on a different but related subject.

If this court approves the “amendment” limitation on the Legislature’s lawmaking power contained in Proposition 22—a limitation that appears to be unprecedented in the history of California initiatives—it will work mischief and provide a roadmap for future initiatives to upset the delicate balance between legislative powers given to the People of the State of California and those given to the Legislature. It would allow a bait and switch in which voters pass an initiative on Subject A but the fine print will unconstitutionally prevent or limit the Legislature’s ability to legislate on Subject B. It will allow the trampling of political and civil rights without recourse to otherwise-permissible legislation. 

Thus, if this Court approves the structure of this initiative, we can expect something like an initiative cutting certain insurance rates but containing a limitation on “amendments” making it nearly impossible for the Legislature to impose penalties for unfair insurance practices, or an initiative creating affordable housing opportunities but containing a limitation on “amendments” preventing the Legislature from overriding zoning rules in California cities. 

In Proposition 22, California voters were told that initiative approval meant treating “gig workers” such as Uber drivers as independent contractors rather than employees for purposes such as workers’ compensation laws. But the substance of the initiative was silent on whether gig workers could have someone represent them collectively to do things like bargaining over working conditions. No provisions in the initiative limit collective bargaining and the initiative’s statement of purposes says absolutely nothing about collective bargaining rights. And yet deep in Proposition 22’s fine print (on the bottom of page 8 to the top of page 9 of a 10-page measure), in the guise of providing limitations on “amendments,” the measure bars the Legislature from enacting any law governing the collective bargaining rights of gig workers unless seven-eighths of the Legislature agrees, a nearly insurmountable margin for any controversial measure. 

If Proposition 22’s proponents wanted to bar entities from assisting gig workers in collective bargaining, they should have included a provision doing so in the substantive provisions of the initiative. Perhaps the proponents did not do so because a proposal to prevent collective action by gig workers could have been politically unpopular, making the measure less likely to pass. 

So proponents—leading ride-share and app companies who benefit financially from a non-organized workforce—tried instead to achieve the same aims indirectly by hamstringing the Legislature from passing collective bargaining legislation related to gig workers. They styled separate legislation on the topic of gig workers’ collective bargaining rights as an “amendment” to Proposition 22, and then subjected such an “amendment” to an onerous seven-eighths supermajority requirement. Such a structure in a voter initiative appears unprecedented among California initiatives. 

As explained below, the structure of Proposition 22 violates the separation of powers contained in the California Constitution. Although Article II, section 10(c) of the Constitution gives initiative proponents the ability to say that the Legislature may not offer amendments (or must meet supermajority requirements to offer amendments) on the same subject as that of the initiative—a requirement necessary to ensure that the Legislature does not pass laws nullifying provisions in voter-approved initiatives—the Constitution does not give initiative proponents the ability to say that the Legislature may not offer legislation (or must meet supermajority requirements to offer legislation) on a different but potentially related subject. 

This Court should hold that the portion of Proposition 22 requiring seven-eighths legislative approval for laws regulating the collective bargaining rights of gig workers is unconstitutional. Because the drafters of Proposition 22 engaged deliberately in a manipulation of the initiative process, this Court should hold invalid all of Proposition 22 despite its severability clause. Without such a strong remedy, there will be no penalty for trying this gambit again; the worst that will happen is that the offending “amendment” will be excised from the measure. At the very least, this Court should declare the portion of the measure limiting legislative power unconstitutional and unenforceable. 

A ruling against the “amendment” gambit contained in Proposition 22 will ensure that initiative proponents cannot limit legislative power through the back door. It will confirm that legislatures retain the authority to pass legislation on topics that are related to, but distinct from, those an initiative actually covers. In that way, it will maintain the proper balance between the People and the Legislature in passing legislation. 

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“Voter ID, mail voting rollback ballot questions likely dead after court rulings”

Nevada Independent:

A pair of Carson City judges struck what appeared to be fatal blows to proposed GOP-backed voting initiatives on Monday, invalidating efforts to roll back the Democrat-backed universal vote by mail law passed in 2021 and a measure implementing voter identification requirements.

In separate rulings, Senior Judge Frances Doherty blocked the effort to file a referendum against AB321, the measure passed by lawmakers in 2021 to permanently implement universal mail-in ballot. In a separate case, Senior Judge William Maddox ruled that the voter ID initiative’s description of effect — a 200-word summary — was argumentative and ordered a new description be written, effectively scrapping all signatures collected at this point.

“On both proposed initiatives, the courts agreed with us that the descriptions provided to potential Nevada voters were deceptive and inaccurate, and could not go forward,” Wolf Rifkin attorney Bradley Schrager, who represented the plantiffs, said in a statement. “In both instances, people with agendas undermining confidence in our elections were found to be misleading the voters about their ballot measures. Today the justice system made clear that such tactics are not tolerable.”

Both measures were sponsored by Repair the Vote, a political action committee led by former Nevada Republican Club President David Gibbs. In a brief interview Monday, Gibbs said there was virtually no chance of getting the signatures needed to qualify the measures for the ballot  by a deadline in the next few weeks.

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“Michigan Initiatives Clash on How to Stop GOP’s Election Deniers”

Steven Rosenfeld:

A new front is opening in Michigan’s voting wars that raises fundamental questions about how far defenders of fact-based elections and representative government must go to protect voting rights in an era marked by Republicans who deny results and spread lies about elections.

Republicans have launched ballot initiatives to bypass a gubernatorial veto and enact laws that would complicate voting, and sanction outside inquiries into close results. Voting rights groups and Democrats, in turn, are using the initiative process to amend Michigan’s constitution to close the veto loophole, and to affirmatively enshrine voting rights and balloting options.

There are three pro-voter proposed amendments. The first would close the veto dodge. The other two, affirming voting rights and options, would, if passed, lay the groundwork to strike down the GOP’s initiative-sparked legislation. But the latter two proposed amendments go to different lengths to block legislators and even the courts from rolling back voting rights.

“They’re all interested in what the ground rules all are,” said Sean Morales-Doyle, acting director of the voting rights and elections program at the Brennan Center for Justice at New York University School of Law, speaking of Michigan’s five competing ballot initiatives to enact laws or amend its constitution. “They’re also all interested in how these different political actors have power relative to one another, and how to restrict or expand that power.”

Michigan’s initiatives are responses to ongoing fights over its 2020 election, where Joe Biden officially beat Donald Trump by 154,000 votes out of 5.5 million cast. On February 11, its Board of State Canvassers finalized the 100-word summaries describing the latest measures to initiate legislation or amend its constitution. The next step is gathering signatures by July 11 to advance the GOP’s proposed laws or to put the amendments before voters in November.

The initiatives are part of a surge of more restrictive or permissive voting measures that have flooded state legislatures since the 2020 presidential election. But unlike states such as Arizona and Nebraska, where single ballot measures have emerged in addition to many bills proposed by legislators, Michigan offers the broadest spectrum of ballot initiatives that may complicate elections or construct guardrails against antidemocratic power grabs.

The faction seeking more onerous rules for voters, led by pro-Trump Republicans, wants to adopt legislation that was vetoed last October by Gov. Gretchen Whitmer, a Democrat. They have turned to Michigan’s ballot initiative process, where signatures from 8 percent of the votes cast for governor (340,000) would refer the measure to the GOP-led legislature, which could then enact the law. (Laws initiated this way are exempt from vetoes.) A second potential law proposed by Trump allies would empower private contractors to audit election results, like Arizona’s much-maligned 2020 review that concluded Biden won after spending months casting doubt on the election’s results.

The GOP proposals have been met by countermeasures to amend Michigan’s constitution from proponents of more expansive voting rights. Amending a state constitution supersedes new law and establishes a basis to challenge existing laws. (The amendments need 425,000 signatures to get on Michigan’s November 2022 ballot.) Center-left groups are behind the three proposed amendments. The first would close the veto loophole. The other two proposals overlap in their enumeration of voting rights and voting options, but they differ in how far each goes to restrain conspiracy-driven legislation and courts from upholding laws based on unproven threats….

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