Category Archives: direct democracy

“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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Electoral College changes before 2024?

I don’t believe I’ve seen mentioned on ELB the effort to put the National Popular Vote Interstate Compact on the ballot next November in Michigan. As the Detroit Free Press reported a couple of weeks ago, supporters of the measure have been given “the green light” to gather signatures to put this issue to the state’s voters.

Were this effort to succeed, it would only add by itself 15 more electoral votes towards the necessary 270 for the compact to take effect. Right now, the compact has enough states on board for 195 electoral votes.

It is difficult, but not entirely impossible, to see the compact reaching 270 in time for 2024. Doing so would require its adoption in states, like Michigan, with the direct democracy option of a ballot initiative. I’m not an expert on the specific ballot initiative rules and procedures in Arizona, Florida, Maine, Missouri, Nevada, and Ohio (among other states), but some combinations of those states could get the compact to the magic number.

This all suggests that Michigan’s effort, especially if followed in other states, might test the precedent of the Supreme Court’s Arizona Independent Redistricting Commission decision and the Court’s current views of the so-called “independent state legislature doctrine” insofar as it applies to the Article II authority of state legislatures to choose the “manner” of appointing the state’s electors. I for one would not be surprised to see the current Court hold that the use of the initiative process, as in Michigan, to adopt the NPV interstate compact is a violation of Article II (either overruling or distinguishing the Arizona case). Whether one would agree or disagree with the merits of that judicial decision would be irrelevant to its role in preventing this approach to getting the NPV compact adopted before the 2024 election.

Continue reading Electoral College changes before 2024?
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“Has California’s unique brand of direct democracy gone too far? Recall is ultimate test”

LAT:

When California’s newly elected governor, Hiram Johnson, delivered his inaugural address on Jan. 3, 1911, he made a radical proposition.

My first duty, Johnson declared on that celebratory day, “is to eliminate every private interest from the government and to make the public service of the State responsive solely to the people.”

His words sent shock waves through halls of power accustomed to an easy exchange of money and influence. Determined to “arm the people to protect themselves” against such abuses, Johnson proposed amending the state Constitution with “the initiative, the referendum and the recall.”

The savvy electorate of the day understood that their governor, a Republican well-versed in the Progressive agenda, was arguing for voters to be given the right to place laws on the ballot through petition, to weigh in on laws passed by the Legislature and to remove public officials from office without cause or judicial procedure.

Ten months later, voters agreed, and representative democracy, the crowning achievement of the ounding fathers in 1787, now had a powerful rival — direct democracy — that would leave an indelible mark on California’s political landscape.

“The people of the State of California are ready to rule,” Johnson said. “They have the intelligence and the sense to rule.”

California, popularly heralded as fertile ground for personal reinvention, now had the ability to reinvent itself politically. Citizens, quick to slough off the trappings of the past, had tools for building their future, bringing a fluidity and dynamism to the legislative and electoral process that has only gotten stronger, if not exaggerated with time.

Today Johnson’s vision for California is in the final days of a campaign that kicked off in April when a little less than 5% of the population decided to recall Gov. Gavin Newsom, who took office in 2018 with almost 62% of the vote.

If the drama has at times resembled a sideshow with a traveling bear, a yogic healer and billboard celebrity among the 46 candidates, then it is a measure of how far the democratic spirit that Johnson championed has evolved.

Social media, celebrity candidates and attention seekers have altered the equation, but more than 100 years after Johnson’s reforms, there is no turning back.

“We have all been socialized in a state where we expect voters to directly flex their muscles,” said Thad Kousser, professor of political science at UC San Diego.

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“‘Tyranny of the minority’: Idaho Supreme Court rules voter initiative law unconstitutional”

Idaho Statesman:

Idaho Supreme Court justices on Monday unanimously ruled the state’s new law on citizen-led ballot initiatives to be unconstitutional and said it infringed on the public’s right to enact laws outside of the Idaho Legislature.

The opinion ruled in favor of Reclaim Idaho, the organization that spearheaded the successful Medicaid expansion initiative in 2018 and sued the Idaho Legislature in May. The Committee to Protect and Preserve the Idaho Constitution, a coalition of mostly Idaho attorneys, also joined Reclaim Idaho’s lawsuit.

The state’s highest court ruled that the law would have infringed on a fundamental right for a citizen-led initiative. The Legislature and Secretary of State’s Office “failed to present a compelling state interest for limiting that right,” the Supreme Court wrote.

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“Prop. 22 is ruled unconstitutional, a blow to California gig economy law”

LAT:

California’s giant ride-hailing and delivery companies suffered a setback Friday as a state Superior Court judge invalidated a 2020 ballot proposition that allowed Uber, Lyft, DoorDash, Instacart and other app-based businesses to classify theirworkers as independent contractors.

In a lawsuit brought by the Service Employees International Union and several drivers, Alameda County Superior Court Judge Frank Roesch ruled that Proposition 22 is unconstitutional and unenforceable.

That’s in part because the law, Roesch wrote, infringes on the power of the Legislature explicitly granted by the state Constitution to regulate compensation for workers’ injuries.

“If the people wish to use their initiative power to restrict or qualify a ‘plenary’ and ‘unlimited’ power granted to the Legislature, they must first do so by initiative constitutional amendment, not by initiative statute,” the judge wrote.

The judge’s ruling contains other grounds as well, including a single subject challenge.

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“Voters supported progressive policies on ballot initiatives. Republicans are pushing back.”

NBC News:

Some states have increased the number of votes required to pass ballot initiatives, while others expanded the spread of required petitioner signatures across the state to even bring it to the ballot. In other cases, legislators have put up roadblocks to organizer funding or even increased the required font size of the policy and limited the size of the paper the petition has to be printed on.

More than 125 bills have been introduced into 31 state legislatures to amend or change the referendum or ballot initiative process in 2021, according to data compiled by Ballotpedia for NBC News. So far 19 have passed and 31 were rejected, died in the legislative process or were vetoed.

Many of these new Republican-supported policies or other roadblocks are now being challenged in court, most notably in Florida, Idaho, South Dakota, Missouri and Mississippi.

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“Let the People Rule: How Direct Democracy Can Meet the Populist Challenge”

John Matsusaka has written this book for Princeton University Press that is well worth your time. Here’s the description:

Propelled by the belief that government has slipped out of the hands of ordinary citizens, a surging wave of populism is destabilizing democracies around the world. As John Matsusaka reveals in Let the People Rule, this belief is based in fact. Over the past century, while democratic governments have become more efficient, they have also become more disconnected from the people they purport to represent. The solution Matsusaka advances is familiar but surprisingly underused: direct democracy, in the form of referendums. While this might seem like a dangerous idea post-Brexit, there is a great deal of evidence that, with careful design and thoughtful implementation, referendums can help bridge the growing gulf between the government and the people.

Drawing on examples from around the world, Matsusaka shows how direct democracy can bring policies back in line with the will of the people (and provide other benefits, like curbing corruption). Taking lessons from failed processes like Brexit, he also describes what issues are best suited to referendums and how they should be designed, and he tackles questions that have long vexed direct democracy: can voters be trusted to choose reasonable policies, and can minority rights survive majority decisions? The result is one of the most comprehensive examinations of direct democracy to date—coupled with concrete, nonpartisan proposals for how countries can make the most of the powerful tools that referendums offer.

With a crisis of representation hobbling democracies across the globe, Let the People Rule offers important new ideas about the crucial role the referendum can play in the future of government.

And here’s my blurb of the book:

“Is the cure for populist anger around the world giving voters a greater say in governance through direct democracy? In Let the People Rule, John Matsusaka makes this counterintuitive argument by resorting to evidence and reason, not inflammatory rhetoric. A crucial, clearly written book for those who care about the fate of advanced democracies.”—Richard L. Hasen, author of Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy

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“Republicans Move to Limit a Grass-Roots Tradition of Direct Democracy”

NYT:

n 2008, deep-blue California banned same-sex marriage. In 2018, steadfastly conservative Arkansas and Missouri increased their minimum wage. And last year, Republican-controlled Arizona and Montana legalized recreational marijuana.

These moves were all the product of ballot initiatives, a century-old fixture of American democracy that allows voters to bypass their legislatures to enact new laws, often with results that defy the desires of the state’s elected representatives. While they have been a tool of both parties in the past, Democrats have been particularly successful in recent years at using ballot initiatives to advance their agenda in conservative states where they have few other avenues.

But this year, Republican-led legislatures in Florida, Idaho, South Dakota and other states have passed laws limiting the use of the practice, one piece of a broader G.O.P. attempt to lock in political control for years to come, along with new laws to restrict voting access and the partisan redrawing of congressional districts that will take place in the coming months.

So far in 2021, Republicans have introduced 144 bills to restrict the ballot initiative processes in 32 states, according to the Ballot Initiative Strategy Center, a liberal group that tracks and assists citizen-driven referendums. Of those bills, 19 have been signed into law by nine Republican governors. In three states, Republican lawmakers have asked voters to approve ballot initiatives that in fact limit their own right to bring and pass future ballot initiatives.

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“Courts Are Taking Away One of Americans’ Best Options for Fixing Voting”

David Daley for The Atlantic:

In 2019, writing the decision for Common Cause v. Rucho, Chief Justice John Roberts closed off the federal courts as an avenue for addressing partisan gerrymandering. But, Roberts insisted, the Supreme Court’s decision did not condone these excesses. Rather, another path for addressing structural electoral reform existed. Noting the success of several citizen-driven state-constitutional amendments passed by ballot in Colorado, Michigan, and Missouri the previous November, Roberts said that citizens still had the tools to make change.

Just over a year later, however, that hasn’t proved to be the case.

Voters in Arkansas, North Dakota, and Idaho took Roberts up on his suggestion to drive reform via citizen-led initiative or by amending their state constitution. In Arkansas, with two different amendments, citizens worked to establish an independent redistricting commission and also open primaries and institute ranked-choice voting. In North Dakota, they looked to strengthen overseas-military voting and election audits, open primaries to all voters, and enact instant runoffs. Idaho voters, meanwhile, sought to expand funding for public education. One by one, these initiatives have been knocked off the ballots this summer by state and federal courts, and for the most tendentious and technical reasons.

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“In secret recording, trainer for Unlock Michigan advises on unlawful tactics”

Detroit Free Press:

The company collecting signatures to strip Gov. Gretchen Whitmer of her emergency powers coached paid petition circulators on giving voters false information, illegally collecting signatures without witnessing them, trespassing on private property, and even lying under oath, a secretly recorded videotape shows.

The video showing Erik Tisinger, a trainer for the California signature company In the Field, Inc., was secretly recorded Sept. 4 by a representative of Keep Michigan Safe — the group opposing the Unlock Michigan effort — and made available to the Free Press.

The profanity-peppered training session provides an inside look at the world of paid signature gatherers and could potentially pose problems for Unlock Michigan’s attempts to certify the close to 500,000 signatures the group hopes to collect. It is the second example of irregularities in the Unlock Michigan signature collection process the Free Press has highlighted.

“This can be a real shady job,” Tisinger tells the trainees. “And when I say shady, I mean, people do all sorts of illegal s— all the time and never get caught. It’s really hard to get caught doing s— except for, like, forgeries.”

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