Four Ballot Measures Threaten to Undercut Direct Democracy in Arizona and Arkansas

The ballot initiative process has come under assault nationwide by Republican lawmakers.

Quinn Yeargain,    |    September 21, 2022

Arizona is one of two states where voters will weigh in this fall on whether to weaken voters’ ability to initiate and pass ballot measures. (Photo via the Maricopa County Recorder office/Facebook).

Just weeks ago, voting rights activists felt good about strengthening democracy in Arizona. They had gathered hundreds of thousands of signatures for a ballot measure to implement same-day voter registration and protect mail-in ballots. And a dispute over whether organizers submitted enough signatures was initially resolved in their favor by a county judge—only to be reversed by the state’s conservative supreme court, which kicked the initiative off the ballot.

Instead Arizona’s ballot will feature a trio of measures that would significantly undercut direct democracy and future initiatives. All were referred to voters by the GOP-run legislature.

The coalition behind the voting rights initiative, Arizona for Fair Elections, cried foul over the elimination of its measure while the three others got to proceed. “Certain politicians have been intentionally trying to attack the ballot measure process for over a decade to prevent voters from being able to make decisions about Arizona’s future at the ballot box,” it said in a statement.

Hundreds of miles away, progressives in Arkansas face similar heartburn. Voters there raised the minimum wage and legalized cannabis for medical use in 2016 and 2018; this year, they will weigh on cannabis for recreational use.  But here, too, GOP lawmakers have placed a measure on the ballot, Issue 2, that would make it harder for voters to circumvent them in the future. 

“You have people who are supposed to be public servants who are trying to prevent people from expressing their will at the ballot box,” David McAvoy, a progressive advocate and founder of the Arkansas-based group Protect AR Voices, told Bolts. “This is an attempt to weaken people’s votes.”

McAvoy believes that, with Issue 2, Republican lawmakers are retaliating against the minimum wage and marijuana measures approved by Arkansans. That dynamic is also operative in Arizona, where residents have used the initiative process in recent cycles to adopt policies that their GOP-run state legislature wouldn’t. Since 2016, they too have raised the minimum wage and legalized cannabis; they also increased taxes on the wealthy to raise teachers’ salaries and required employers to provide paid sick time to their employees. This remarkable streak angered Arizona Republicans, who have set out to shut the door on future efforts this year.

Kelly Hall, executive director of the Fairness Project, a national organization that supported the successful initiatives to increase the minimum wage in both Arizona in 2016 and Arkansas in 2018, is now fighting the latest ballot measures in each state. “If passed, these restrictions would further entrench minority rule in our political system and likely block popular policies from passing,” she told Bolts. “It’s absolutely essential that we protect the ballot measure tool so that people can continue to make progress when their elected officials will not.”

Ballot measures have come under assault nationwide, as Republican leaders have made parallel moves in many states to trip up voter-initiated referendums. The Ballot Initiative Strategy Center has tracked the introduction of dozens of bills in recent years, many of which have become law. Some of the more onerous restrictions imposed new geographic distribution requirements for petition-gathering, which tends to reduce the power of cities, or they made petition gathering far more impractical.

Republican leaders have also responded to successful ballot measures initiated by residents by undermining them. In 2018, Utah voters approved statutes that expanded Medicaid, legalized cannabis for medical uses, and created a nonpartisan redistricting process. But in 2019, the state legislature repealed all of them, though it then re-enacted a narrower version of Medicaid expansion. Maine’s former Republican governor ignored a successful ballot initiative to expand Medicaid for years. And last year, Mississippi’s conservative supreme court struck down the entire initiative process.

Arizona’s state constitution contains strong protections that prevent some of this gamesmanship. Most significantly, it severely constrains the state legislature’s power to repeal or amend statutes initiated and approved by voters. Lawmakers are prohibited from modifying any voter-initiated statute unless their change “furthers the purpose” of the statute itself; this shield was included in the Voter Protection Act, a voter-initiated constitutional amendment that passed in 1998. In addition, and unlike many states, Arizona has no requirement that initiatives be limited to a “single subject,” which opens the door for ballot measures that propose sweeping changes.

But the three constitutional amendments that state Republicans are proposing would upend this system. The first, Proposition 128, would amend Arizona’s constitution to widen the circumstances under which lawmakers may repeal or amend a ballot measure—even after it has already gained the electorate’s support.

The proposition would enable the legislature to change a ballot measure when courts strike down any part over it. Proponents say lawmakers’ hands are currently tied when it comes to fixing an initiative when that happens. Opponents answer that the proposition would give politicians wide latitude to intervene as they could amend any section of a text if one part is struck down. Athena Salman, a Democratic state Representative, called it that the change is “a very sneaky way to undermine the Voter Protection Act without actually having to repeal the Voter Protection Act.”

The second, Proposition 129, would impose a “single subject” requirement for all voter-initiated measures; it would impose no such requirement on amendments proposed by the legislature. Many state courts have applied similar requirements harshly—the South Dakota supreme court last year struck down an initiative that legalized marijuana on this basis—which may provide Arizona’s high court, which the GOP has packed in recent years, with another tool to invalidate voter initiatives. The third, Proposition 132, would raise the approval threshold from 50 percent to a supermajority of 60 percent for voter-initiated measures that would raise taxes.

Arkansas’s Issue 2 would also impose a supermajority requirement, and it would go further than Arizona’s proposal by raising the threshold to 60 percent for all ballot measures. 

“It is entirely too easy to amend our state constitution,” said state Representative David Ray, the Republican lawmaker who drafted the measure. Ray, much like Republicans in Arizona, has complained that out-of-state money is championing organizing around referendums in the state. (Lawmakers voted largely on party lines when they placed Issue 2 on the ballot.) 

Arkansas Republicans already tried to limit their state’s ballot initiative process two years ago with a more sweeping constitutional amendment, known as Issue 3, that appeared on the ballot in November 2020. But Arkansas voters rejected that measure 56 to 44 percent. 

That same year, the state supreme court had struck down two measures over organizers’ alleged failure to conduct criminal background checks on petition gatherers; Arizona statutes require organizers to certify that each canvasser has never been convicted of a broad array of offenses, including low-level charges like trespass (the high court said organizers took insufficient steps to ensure this). One of these measures would have created an independent redistricting commission. Instead, Republican lawmakers got to draw new maps in 2021 that solidified their party’s hold on power.

Earlier this year, South Dakotans rejected a similar effort to demand a supermajority. Republican lawmakers put an amendment on the June ballot that would have raised the threshold for some referendums to pass; the GOP rushed that measure to change the rules in time to thwart an effort to expand Medicaid. But the measure lost 67 to 33 percent in June, which has kept alive the possibility that South Dakotans expand Medicaid in November; the measure now only needs 50 percent of the vote—a goal that similar initiatives have crossed in many red states in recent years. (Arkansas and Arizona expanded Medicaid legislatively a decade ago.)

“Sometimes, when you take issues away from, ‘Is it Democrat or Republican,’ and just let the people speak, you find that people may come at it with very different views than the political party that they’re otherwise drawn to,” McAvoy told Bolts.

McAvoy said some Arkansas conservatives allied with progressives in 2020 to defeat the measure proposed that year to limit citizen-led ballot initiatives. “This cuts both ways in terms of the detrimental effect on democracy,” he said.

“While it’s definitely in this case the Republicans in power who are trying to stop things they don’t want,” he added, “I think across the board we all need to be concerned about what it means for our democracy and for our abilities to be heard on any issue, regardless of where we stand on the specifics.”