Category Archives: direct democracy

Montana Plan is not Without Its Skeptics

campaign finance, direct democracy,

Earlier this week, I blogged about a new initiative in Montana that seeks to rein in corporate political spending by amending the state’s constitution to limit the powers conferred on corporations. In a new article for the local Independent Record, Brad Smith, chairman of the Institute for Free Speech and a former commissioner for the Federal Election Commission, dismissed the plan as unserious: “the state cannot condition a benefit (in this case, the right to incorporate) on citizens giving up their constitutional rights.”

Meanwhile, our very own, Rick Hasen, despite his general sympathy for regulating money in politics, told reporters he was “skeptical of the legal strategy behind this maneuver, given the incredible skepticism of the Supreme Court about the constitutionality of regulating corporate political spending.” I agree.

Still, he emphasized:

“There is a political benefit in pushing such a measure and in galvanizing public support against the Supreme Court’s damaging approach to issues of money in politics. . . .

Passing such a measure and having the Court strike it down is a way of reminding the public that the Supreme Court is the entity standing in the way of achieving a fair balance between robust political competition and not allowing the ultra-wealthy to have disproportionate political power in society.”

Jeff Clements, a major advocate of both overturning Citizens United and this new plan, also sought to rein in the idea that the Montana Plan would solve all our money in politics problems (for those who agree they exist).

“While the Montana Plan would help, he said, he also pointed out that billionaires would still be able to spend huge sums of money, another feature of the Citizens United decision.”

This is a point that Rick and I have both made before.

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New Montana Initiative Seeks to Use Corporate Law to Restrain Corporate Political Spending

campaign finance, direct democracy

Veteran election leaders today unveiled “The Montana Plan,” a ballot initiative that seeks to eliminate corporate and dark money from Montana politics without running afoul of Citizens United. The initiative would amend Montana’s constitution to prohibit the state from granting corporations it creates the power to spend in politics. Today, Montana, like most states, grants its corporations every power held by an individual to do all things necessary or convenient to carry out its business and affairs. The initiative if passed would change that to eliminate the power to spend in politics.

Proponents argue, “This is authority every state possesses but no state has used in more than a century.”

But what about out-of-state corporations? Well, Montana law already limits corporations chartered in other states to the same set of powers that Montana-chartered corporations hold. Thus, were Montana to limit its own corporations’ political spending, the restriction would automatically apply to out-of-state corporations.

Intriguing. The Montana Plan is being sponsored by the Transparent Election Initiative, a Montana-based nonprofit organization.

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“Republicans Add New Barriers to Oklahoma’s Dizzyingly Fast Process for Citizen Initiatives”

direct democracy

Daniel Nichanian (Bolts Magazine)

Yet another profile of Republican efforts to make direct democracy more difficult in states where it has been used for initiatives–such as raising the minimum wage–that reflect public opinion more closely than the party’s current platform.

Oklahoma “has the nation’s shortest window of time for collecting the tens of thousands of signatures needed to qualify citizen-led measures—just 90 days, compared to other states with ballot initiatives, which all give canvassers 180 days or more.”

Now, it is adding to that a variety of other constraints, making it more challenging to get measures onto the ballot, from geographic signature requirements to “mandating that ballot campaigns file weekly reports about their finances” and requiring “anyone who signs a petition to attest that they’ve read its entire text, or had it read to them.”

Proponents say the measure is meant to “empower rural areas,” enabling them to check the power of numbers (“the urban elites in Oklahoma City and Tulsa”).

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“Legal challenge to come against Oklahoma bill capping initiative petition signatures”

direct democracy, legislation and legislatures

The Oklahoman covers (paywall) threats of litigation to a new Oklahoma requirement (with some comparisons to recent measures in other states restricting direct democracy) that restricts the number of signatures for an initiative coming out of any given county to a certain percentage of that county’s votes for governor in the last election  (20.8% for constitutional initiatives, 11.5% for statutory ones).  Oklahoma also has a 90-day signature-gathering period.

One of the ostensible justifications for the rules is protecting rural voters.  And it’s true that it’s impossible to reach the thresholds under the new structure with signatures only from Oklahoma City and Tulsa.  But using 2022 results, there’s also no way to meet the threshold for either constitutional or statutory provisions without Oklahoma City or Tulsa.  That is, even if you max out signatures from the 75 most rural counties, you can’t reach the statewide threshold to get anything on the ballot.

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“States Are Tightening Rules for Getting Citizen-Led Proposals on the Ballot”

direct democracy

NYT:

After a wave of successful citizen-led efforts to expand abortion rights via ballot measures, some state legislatures are making it harder for members of the public to put such measures before voters.

Florida, which late last week became the latest state to enact stricter rules around the process, is already facing a lawsuit over whether imposing more restrictions on the ballot initiative process is constitutional. The suit was brought by a group, Florida Decides Healthcare, that is trying to get a proposal on next year’s ballot to expand Medicaid in the state.

The group, which faces a February deadline to collect nearly 900,000 signatures from residents supportive of the plan, said that the new law was making signature-gatherers nervous.

The law imposes a possible criminal penalty if someone circulating petitions does not register with the state; limits to 25 the number of signatures that an unregistered canvasser can collect; requires canvassers to collect more identifying information, and shortens the time frame for petition submission to 10 days after signatures are received.

“This isn’t about transparency or accountability — this is about control,” said Holly Bullard, the co-chairwoman of the organization that sued. The citizen-led process, she added, “is not perfect, but it’s powerful. And that’s exactly why they’re trying to undermine it.”

Gov. Ron DeSantis, in a post on social media, said that the bill, which he signed on Friday, would “combat petition fraud and prevent the special interest abuse of our constitutional amendment process.” A report compiled by the state’s Office of Election Crimes and Security charged that some of the organizers and petitioners behind last year’s abortion ballot question had committed “widespread petition fraud.” But the state did not challenge any signatures earlier in the year, when it had a chance to.

Less than half of the nation’s 50 states allow for citizens to collect signatures and to place proposals on the ballot. State legislatures can also put questions on the ballot, and typically author the overwhelming majority of constitutional amendments.

But after the fall of Roe v. Wade in 2022 allowed states to restrict abortion access, abortion rights groups turned to the ballot initiative process as a way to circumvent conservative legislatures and to put the question of abortion access directly before voters.

The new restrictions in Florida are similar to several that were approved last month in Arkansas, where petitioners almost succeeded in getting an abortion rights amendment on the ballot last year. The Republican-led state had recently required that a certain minimum of signatures be obtained in at least 50 of its 75 counties, more than double the previous threshold….

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“Ohio GOP pushes new rules that voting rights groups say will make it harder to get issues on the ballot”

ballot access, direct democracy, election administration

Cleveland.com:

The next time someone asks you to sign a petition, they might be wearing a government-issued badge.

Republicans say voters deserve to know when someone is being paid to gather signatures, and that a badge will make the process more transparent.

“They might see the badge and think, ‘Hey, wait a minute— is there more behind a petition than meets the eye?’” said Republican state Sen. Andrew Brenner of Delaware.

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Supreme Court Denies Stay in Ohio Ballot Initiative Case

direct democracy, referendum, Supreme Court

The shadow docket order in Yost v. Brown is here. The case concerns Ohio AG Yost’s repeated refusal to certify a proposed summary of a proposed constitutional amendment. The district court concluded that the ballot initiative proponents’ First Amendment rights were violated and issued a preliminary injunction, which it stayed pending appellate review. A divided panel of the Sixth Circuit lifted the stay. Justice Kavanaugh initially granted a stay and ordered a response. The Court, however, allowed the district court’s preliminary injunction to stand. Justices Thomas, Alito, and Kavanaugh dissented from the Court’s denial of the stay, but they declined to author opinions.

Prior coverage of this case can be found here and here.

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“Constitutional Limits On Legislative Overrides Of Statutory Initiatives In Ohio”

direct democracy

Derek Clinger has posted this draft on SSRN (forthcoming, Case Western Law Review). Here is the abstract:

After Ohioans overwhelmingly approved an initiated statute in 2023 legalizing adult-use marijuana and establishing a regulatory framework for the new commercial industry, state lawmakers swiftly moved to amend—and even repeal—key provisions. While no changes have passed yet, growing momentum in the Ohio General Assembly raises a fundamental question: Does the Ohio Constitution allow legislators to override the will of the people?

A common assumption is that Ohio lawmakers have complete discretion to alter voter-approved laws because, unlike some other state constitutions, Ohio’s lacks an explicit prohibition. But Ohio courts have never ruled on the issue, leaving the question unresolved and creating uncertainty not only for the marijuana law but also for the future viability of Ohio’s century-old statutory initiative power.

This Essay challenges the prevailing view that statutory initiatives in Ohio lack constitutional protection, offering the first in-depth analysis of the issue. After surveying how other state constitutions address legislative alterations of initiated statutes, it argues that the most faithful reading of Ohio’s constitutional text, structure, and history is one that significantly limits—but does not entirely prohibit—legislative overrides of initiated laws. More specifically, it argues that the constitution allows lawmakers to amend voter-approved initiated statutes only if their changes “facilitate” the initiative without in any way limiting or restricting it. The Essay then considers how this framework would apply to the most recent statutory initiatives Ohioans have approved: the 2023 marijuana legalization law and a 2006 indoor smoking ban.

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“Ohio AG Must Approve Qualified Immunity Measure Summary”

direct democracy

Bloomberg Law:

Ohio’s attorney general must approve a desired summary of a ballot measure that would make it easier to sue police and government officials, a federal judge ruled Friday.

The enforcement by Attorney General Dave Yost (R) enforcement of a law that says summaries of proposed constitutional amendments must be “fair and truthful” likely violated the Ohio Coalition to End Qualified Immunity’s free-speech rights, Senior Judge James L. Graham of the US District Court for the Southern District of Ohio said.

The judge’s preliminary injunction ordered Yost to immediately submit the disputed summary to the Ohio Ballot Board for review, the next step before the group can collect the signatures necessary to place its measure on this year’s ballot. The burdens imposed Yost’s enforcement of the law, which includes eight summary rejections, don’t justify the imposition on the group’s free-speech rights, Graham said.

“As applied, the Attorney General’s denials of plaintiffs’ summaries reached a level of hypercorrectness which went beyond ensuring that citizens could ascertain what they were being asked to support,” Graham wrote, adding that Yost “has played the role of an antagonistic copyeditor, striking plaintiffs’ work on technical grounds.”…

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“REPORT: ERN’s Groundbreaking Report Identifies Partisan Abuses of Ballot Initiatives and Proposes Nonpartisan Solutions”

direct democracy

Release:

A groundbreaking new report from the Election Reformers Network (ERN) shows how state legislatures and elected officials have manipulated the ballot initiative process to stymie the will of voters in many states across the country. The report, Partisan Control of Ballot Measures: How to Stop Manipulation of Citizen Initiatives, was released February 3, 2025.

From 2010 to 2023, state legislatures amended or repealed more than 20% of voter-approved initiatives. In addition, partisan officials, such as secretaries of state and attorneys general, have used their control of ballot language, fiscal assessments, and signature verification to mislead voters or block measures from reaching voters. And, the report finds, the controversial actions are growing increasingly blatant.

“The problem is clear. States that have given voters the right to advance ballot initiatives need to protect that right against abuses by elected officials,” said ERN Executive Director Kevin Johnson. “The will of the majority has been thwarted many times in many states. For voters, these abuses seem to prove system is rigged against them. For politicians and political parties, win-at-all-costs is the new and dangerous imperative.”

Abuses have occurred in blue states and red. One of the most egregious examples occurred this year in Ohio, where Issue 1 proposed an independent redistricting commission. when Secretary of State Frank LaRose used his control of the state ballot board to write a title and summary that completely misled voters. For a measure intended to “ban partisan gerrymandering,” LaRose’s approved language described. a commission “required to gerrymander.”

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