Power to the people? Only half have the right to propose and pass laws

Voters in Maine will be deciding a question in November about whether independent automobile repair shops should have access to the same diagnostic technology as dealerships.

In Ohio, voters will be settling a pair of more personal questions — whether to create a constitutional right to abortion and legalize recreational marijuana.

They are the latest of nearly 2,700 issues decided by voters over the past 125 years after citizens petitioned to place proposed laws or constitutional amendments on a statewide ballot. But that outburst of direct democracy has been limited to just half the states.

When it comes to the power of the people, the nation stands divided.

About 165 million people live in 25 states with active citizen initiative or referendum provisions, which let residents bypass the legislature to amend the constitution, enact laws or repeal those passed by elected officials. About 167 million people live in 25 other states where such direct democracy is not currently an option.

“In states where it exists, it’s pretty vibrant, and it’s a well-accepted form of American democracy — voters like it,” said John Matsusaka, executive director of the Initiative and Referendum Institute at the University of Southern California. “But it was a reform that didn’t get quite as far as proponents were hoping.”

PROGRESSIVE PUSH

After South Dakota voters approved an initiative and referendum process in 1898, other states quickly followed suit. By 1918, a total of 22 states had adopted some method for citizens to initiate laws and constitutional amendments or to force referendums on laws passed by the legislature.

The progressive political era was a driving force for the movement, and most states that embraced it were west of the Mississippi River. But their geography was not necessarily the impetus.

A study led by University of Florida political scientist Daniel Smith found that legislatures with close political divisions and weaker party organizations were more likely to try to appeal to voters by proposing to give people the power to make their own laws.

“The economic and political transformation that was going on then gave us this sort of free-wheeling initiative process,” said Todd Donovan, a political science professor at Western Washington University. “Then that movement kind of ended around the 1920s.”

Since then, only a few states have adopted an initiative process — Alaska in the 1950s, Wyoming in the 1960s and Illinois and Florida in the early 1970s. Illinois initiatives can address only the structure and procedure of the legislature, and only one has ever passed.

Mississippi voters reinstated the initiative in 1992 — 70 years after its Supreme Court overturned the original version. But the state Supreme Court upended the initiative again in 2021 with a ruling that made it impossible to meet the petition signature requirements. Mississippi lawmakers this year debated whether to place a new initiative amendment on the ballot, but ultimately did not do so.

REPUBLICAN PUSHBACK

Republican-led legislatures in Arizona, Arkansas, Ohio and South Dakota all recently placed measures on the ballot seeking to make it harder to approve future initiatives by raising the vote threshold needed to pass them. Voters rejected most of those proposals, though an Arizona measure to require a 60% vote for future tax increases passed with less than 51% of the vote.

The recent measures led to a perception that Republicans are increasingly attacking direct democracy. But that’s not entirely true, according to new research by Matsusaka.

The number of ballot measures seeking to restrict the initiative and referendum process dipped in 2016 and has since risen. Yet it’s not much different than during the previous decades, Matsusaka concluded. Measures seeking to restrict direct democracy peaked from 1995 to 2004 but significantly outpaced those seeking to expand direct democracy throughout the entire period of 1960 through 2022.

Since 1960, Republican-led legislatures have placed on the ballot more than three times as many measures seeking to restrict the initiative and referendum process as Democratic-led legislatures, according to Matsusaka’s research. Since the turn of this century in particular, legislatures with divided control or Democratic majorities generally pulled back from measures restricting direct democracy while Republican-led legislatures continued churning them out.

In many cases, Republican legislative efforts to restrict citizen initiatives arose as a backlash to specific initiatives they opposed, such as the abortion-rights measure appearing on Ohio’s November ballot.

BIG BUCKS

Though South Dakota was the first to authorize the initiative process, Oregon voters were the first to use it in 1904 — approving a pair of initiatives that established primary elections to nominate candidates and authorized local votes on prohibiting alcohol sales.

Oregon citizens were early leaders in the initiative process. proposing 76 initiatives and passing 33 of them from 1904 to 1912.

California, which held its first initiative votes in 1912, has since surpassed Oregon as the most prolific proposition proposer, aided partly by a signature requirement that is slightly lower than the national average. Californians have considered 391 ballot initiatives — approving 137 of them — following campaigns that in recent years have cost tens of millions of dollars.

Last year, supporters and opponents of a pair of rival California sports betting initiatives raised more than $460 million, doubling the previous record. Voters defeated both measures.

“The whole idea of returning government to the people is really challenged by the immense amount of money it takes, especially in California, to participate in direct democracy,” said Michael Smith, a political science professor at Emporia State University in Kansas.

Initiative costs mount quickly because most campaigns must hire professional firms to help gather petition signatures and lawyers to fight against litigation that often seeks to strike measures from the ballot. Then there’s the cost of advertising the measures to voters.

“No one can afford to get on the ballot without having a patron,” Donovan said.

GROWING SUCCESS

From the initiative’s origins through last year, petitioners in 24 states placed 2,683 proposed laws and constitutional amendments on the ballot, winning voter approval for 42% of them, according to data from the Initiative and Referendum Institute.

The success rate has been greater recently. From 2010 through 2019, voters approved 51% of citizen-initiated proposals. During the past three years, voters approved two-thirds of the 71 initiatives on the ballot.

It’s not clear why voters are approving a greater percentage of initiatives. But Matsusaka has some theories. Perhaps petitioners are pursuing fewer long-shot ideas because of the cost. And perhaps those that make the ballot stand a better chance of passing because of populist dissatisfaction with elected officials, he said.

Though chances are slim that lawmakers in more states will embrace the initiative process, an expansion of it could be beneficial, he said.

“Our democracy right now, it’s not a fine-tuned machine – there’s a lot of frustration with it,” Matsusaka said. The citizens’ initiative “seems like a good way to get the people involved and let them feel like they have control of their government.”