Frustrated by their state legislatures’ inaction on popular policy issues, voters across the United States are increasingly turning to a powerful tool in their democratic toolbox: citizen-initiated ballot measures. In recent years, voters have directly legislated issues ranging from the $15 minimum wage increase in Florida to tipped wage reform in Washington, D.C., and Medicaid expansion in Missouri to marijuana legalization in South Dakota.
Irritated at being circumvented in the legislative process, state legislatures are fighting back — by attempting to block the measures even after voters have approved them. In recent years, legislators have increasingly mounted post-passage attacks in at least five ways:
- Direct Repeal: First, officials repeal the passed measures outright. In a recent high-profile example, in 2018, District of Columbia voters passed a ballot initiative that raised the minimum wage for restaurant workers and others who receive tips by a 12-point margin. Just months later, the D.C. Council repealed the initiative. In repealing the tipped wage reform measure, the D.C. Council passed other provisions meant to protect tipped workers, including a wage theft tip line and new tipped worker rights public awareness campaign. Yet, these protections languished for years without funding.
- Refusal to Fund: Legislatures also attempt to sabotage passed measures by refusing to fund the measures. For instance, in August 2020, Missouri voters approved Medicaid expansion by more than six points. Nevertheless, the Missouri legislature refused to pass the funding required to carry out the expansion, leaving the mandate in limbo.
- Weakening: Legislatures also commonly attempt to weaken measures by passing new legislation that undermines the citizen-approved policy. In 2018, Florida voters approved a constitutional amendment that allows those with a felony conviction on their record to register to vote. Yet, the Florida governor and legislature sought to weaken the measure, successfully imposing fee and fine restrictions that effectively stopped many otherwise eligible individuals from registering.
- Refusal to Implement: In addition, leaders will refuse to implement passed measures. In 2017, Maine voters passed Medicaid expansion by a whopping 18 percentage point Yet, the Maine governor refused to implement the expansion, even after a judge ordered him to comply.
- Court Challenges: Finally, in some of the most extreme circumstances, officials sue. In a recent example, South Dakotans adopted a measure that legalized all forms of marijuana, with an eight-point margin. But the South Dakota highway patrol superintendent and a county sheriff then successfully challenged the legality of the measure, based on the single subject rule and a drafting technicality.
Can anything be done to stop officials and legislatures from undermining the will of the people? The answer is yes — but it isn’t easy.
The first and best way to ensure that citizen-approved measures become law is to enshrine protections within state constitutions. In Arizona, voters have done just that. Angered by the state legislature’s repeal of a 1996 drug reform initiative that had been overwhelmingly approved by voters, Arizonans brought and passed a separate citizens’ initiative in 1998 that permanently banned further legislative antics. Known as the Voter Protection Act, the initiative blocked the legislature from repealing or altering citizen-approved measures unless the legislature enacts the proposed change with a three-fourths super majority and the change “furthers the purposes” of the approved measure. Since its passage, Arizonans can rest easier knowing that their will cannot be thwarted by post-passage legislative tinkering; ballot measure proponents in other states should take note.
But other potential pitfalls remain. In today’s litigious election environment, proponents should engage expert counsel from the outset of their campaigns to make sure they have a clear understanding of state law and ensure that the measure is drafted in a way that minimizes the risk of potential litigation. Once the measure is passed, supporters can put pressure on officials to support the measure through direct or grassroots lobbying efforts. This is an especially effective tactic if the measure passed with a large margin or powerful business interests attempt to affect the outcome.
Few things subvert the democratic process more than legislative overrule of ballot measures directly approved by the voters. After a hard-fought ballot measure campaign results in victory, proponents should be able to have certainty that the will of the people will be implemented. When it’s not, voters become demoralized, and their sense of alienation deepens. It is imperative that ballot measure proponents take the steps necessary to ensure success, even after passage.
Sarah Gonski is an attorney in Perkins Coie’s Political Law Group. She represents voters, campaigns and political committees in litigation relating to voting rights and election law. Emma O. Sharkey is an attorney in Perkins Coie’s Political Law Group. She represents ballot measure campaigns, political committees and tax-exempt organizations on issues relating to campaign finance and election law.