Category Archives: direct democracy

California Appeals Court Upholds Most of Prop 22 (Gig Worker Measure) But Agrees with Our Amicus Brief that a Provision Barring Amendments on Collective Bargaining is Unconstitutional

You can find the opinion at this link. [corrected link]

The issue that we briefed as the California Election Law Professors related to a limitation on amendments to the measure by the legislature. The court was unanimous in accepting this argument. The brief was for Joey Fishkin, Franita Tolson, and me, and written with co-counsel Kathryn Eidmann and Mark Rosenbaum of Public Counsel. Thanks as well to Alexandra Cadena and Madison Gunning who volunteered pro bono time to conduct excellent legal research as UCI Law Students.

Here’s the key holding of the point on the amendment issue we briefed, about a part of Prop. 22 infringing on the legislature’s power to legislate in related areas: “By extending Proposition 22’s article II, section 10(c) shadow to bar legislation on subjects which Proposition 22 does not otherwise directly address, section 7465(c)(4) intrudes on the Legislature’s authority to address a “ ‘ “related but distinct area” ’ ” or a matter that Proposition 22 “ ‘does not specifically authorize or prohibit.’ ” (Kelly, supra, 47 Cal.4th at pp. 1025–1026, italics omitted; cf. People v. Nash (2020) 52 Cal.App.5th 1041, 1059–1060 [legislation changing the bases for murder liability did not amend initiative that mandated increased sentences for murder convictions].) On its face, section 7465(c)(4) therefore violates the separation of powers for this reason as well.” The court also agreed with plaintiffs that part of Prop. 22 infringed on the judiciary’s power to decide what counts as an amendment.

Given the split decision of the intermediate appeals court, it is possible that one or both sides will file a petition for review in the California Supreme Court. So this case may not be over yet.

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“The Separation of Legislative Powers in the Initiative Process”

Anthony Johnstone has posted this draft on SSRN (forthcoming, Nebraska Law Review). Here is the abstract:

This article recenters the initiative process as a power and considers the implications of a divided legislative branch through a frame of state separation of powers principles. Part II develops the state constitutional position of the initiative process, how its provisions are entrenched against legislative incursion by detailed constitutional text, and ways in which this position leaves the initiative power vulnerable on judicial, executive, and legislative fronts. Part III introduces three possible defenses for the initiative power: a fading set of federal constitutional rights, an ill-fitting lens of state constitutional rights, and a tentative principle of separation of powers within a divided state legislative branch. This part then turns to constitutional doctrine for models that might describe and defend the initiative power, drawing from bicameralism and plural executive powers in federal and state constitutional law. Part IV explores the problems a powers-based approach may help solve, with reference to recent state legislative efforts, and state court cases that converge on an examination of whether legislation affecting the initiative power facilitates or impairs that power. Part V concludes.

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“‘I feel duped’: Inside the fast-food industry’s push to dismantle a new California labor law”


Susan Bushnell was in a hurry when a man, clipboard in hand, approached her outside a Walmart Supercenter in Vista, Calif., one afternoon last September.

The man asked Bushnell to sign a petition as she wrangled her fussing 5-year-old daughter into a shopping cart. He said the petition would help to raise wages for fast-food workers in California.

“Oh, that’s a good cause,”Bushnell remembers thinking, having once worked in retail. Bushnell paused her rush into the San Diego County store to jot down her signature.

But what the man told Bushnell was false. The petition was part of an effort to kill a newly approved law that could bring significant wage increases for California’s fast-food workers.

That law, known as Assembly Bill 257, or the FAST Recovery Act, was set to go into effect Jan. 1 but is now on hold. State election officials said last week that a coalition of fast-food corporations and industry trade groups, which raised millions to oppose the law, secured enough valid signatures to block implementation of AB 257 until California voters decide next year whether to repeal the law.

Bushnell is among 14 voters interviewed by The Times who say petition circulators for the ballot measure to overturn AB 257 lied to them about what they were signing. Others said the signature gatherers made vague and misleading claims — a Hollywood canvasser, for instance, presented the petition as an inflation cure — or tried to hide legally required paperwork explaining the proposed referendum, sometimes becoming abusive when questioned.

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“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”


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”


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


 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.”


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”


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


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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