Sarah Holder is a staff writer at CityLab covering local policy, affordable housing, labor, and technology.
More citizen-initiated measures are making it onto the ballot than ever before. But in cities and states where they’re able, legislators are taking steps to alter them.
It took about 45,000 Washington, D.C., voters to pass a ballot initiative this June raising the minimum wage for tipped workers. It took only eight city council members out of 13 (and a ton of public pressure) to begin the process of repealing it only a few months later. This wasn’t a bug in democracy. In D.C., and many cities and states across the U.S., it’s part of democracy’s design.
Citizen-initiated ballot measures like Initiative 77, whose short life flamed out dramatically in D.C. this year, give citizens a voice in deciding real policy matters at both the state and local levels. Recent ones have addressed everything from raising minimum wages, to extending term limits, to legalizing cannabis. And in the past two election cycles, there’s been a pronounced increase in activity: 2016 saw the highest number of citizen-initiated measures on ballots in a decade (76); and the 2018 cycle seems to be continuing the trend—69 of the 154 statewide measures on the ballot this year are citizen-initiated, according to the Ballot Initiative Strategy Center. But there’s been an equal and opposite response from lawmakers who are able to use their legislative power to limit, block, or reverse the votes, both preemptively, and after the fact.
“It’s not a new phenomenon by any means, but I haven’t seen this much brashness on the part of legislative bodies in the six years I’ve been covering these, or even in the last decade or so, said Josh Altic, who tracks ballot measures for Ballotpedia.
One high profile example came after South Dakota voters passed the (legally tenuous) Measure 22 in 2016, which would have enforced campaign ethics regulations, and reformed campaign finance laws. By 2017, following a drawn-out challenge to its legality, the very lawmakers who would have been accountable to it voted for its repeal. Even the Initiative 77 debate follows other clear precedents: The D.C. council has reversed four other measures in its history; and a similar minimum-wage bill for tipped workers was first passed by voters, and then swiftly dialed back by the state legislature in Maine last year.
“We’ve seen this as a concerted, conservative attack on direct democracy,” said Chris Melody Fields Figueredo, the executive director of the Ballot Initiative Strategy Center. “Rather than actually mount a campaign on these issues and convince the public of a position, what we’re really seeing the politicians do is create a web of technicalities and hurdles to make it impossible to qualify for the ballot, or reduce it to a battle of lawyer’s fees.”
But the lawmakers who support these reversals argue that laws are made to evolve with the times; and should be able to be fixed if they’re flawed. “We should no more defend a bad law if it's an Initiative, than we should defend a bad law if the Council wrote it,” Council Chairman Phil Mendelson said in a statement in support of Initiative 77’s repeal. “While it is important to recognize the significance of overturning an initiative, I believe it’s a bad law,” Councilman Kenyan McDuffie said in a public hearing last month.
As national interest groups pour money into supporting ballot initiative campaigns, says Altic, some “voter-led” initiatives have strayed farther from the grassroots—a narrative that helps legislators justify re-imagining laws they say were crafted by out-of-state big money, not citizens. In D.C., it was the Restaurant Opportunities Centers (ROC) United, a national workers’ rights organization, that submitted language for the initiative; and the National Restaurant group that swept in to oppose it. “People have started asking if these initiatives are really people vs. power, if they’re being taken over by out-of-state interests and out-of-state national groups with an agenda,” said Altic.
Low turn-out looks bad, too. And while Initiative 77 represented the will of the people that voted, anti-77 advocates argued, it was too small of a percentage: Turnout in the primary season was at a three-decade low. (It was that same percentage of voters that pushed many of the council members through the primaries, countered pro-77 activists.)
But there’s little disagreement that, after offering the choice up to people at the ballot boxes, it’s symbolically fraught to take it away. “Initiative 77 had no place on a primary ballot,” wrote former D.C. mayor Anthony Williams, who supported a repeal, in a Washington Post op-ed. But, he wrote, “[w]e are facing a situation that is never good for a democracy. The people appear to have spoken, and yet their elected officials are saying, ‘Thanks, but no thanks.’”
Supporters of Initiative 77 put it more plainly: “This is suppressing the black vote,” Dianna Ramirez, the co-chair of ROC United, told CityLab in September. The voters in the Wards who supported Initiative 77—and the population most affected by it—were disproportionately low-income people of color. “You tell people of color to come out and vote, and they did, and now you’re invalidating it. It’s unfathomable.”
Unfathomable, maybe, but legal
Besides giving voters a more direct voice in decision-making, “ballot initiatives are an answer to legislative grid-lock,” says Figueredo, “and a check on the corporate power” that might otherwise influence politicians. But some form of citizen-initiative introduction is only an option for voters in 26 states. (No states have added the option since the 1970s, according to Williams, and they’ve been advised against doing so by the National Conference of State Legislators). But in most of them, citizen-driven measures are also eligible for legislative alteration.
Two states (New Mexico and Maryland) only allow citizens to introduce a veto-referendum process, meaning they can challenge laws passed by the legislature, but they can’t propose entirely new laws. Three more (Illinois, Mississippi, and Florida) only allow citizens to initiate constitutional amendments, not state statutes, which are technically harder for the state to overturn—but not impossible to undermine. To change a constitutional amendment, voters always need to approve it. When Florida passed a citizen-driven amendment legalizing medical marijuana, though, the legislature turned around and banned smoking medical marijuana, making implementing the first law harder. (The same preemption strategy that states have used to limit city laws.)
Those technicalities leave only 21 states where state statutes can truly be introduced by citizens. Of those, only two states (Arizona and California) have actually made it illegal to change an initiative substantively without putting it back to the voters.
The rest? Places where they’re fair game for reversal. There’s even a final, most permissive category of 11 states (and D.C.) that can change or repeal initiatives at will, without any restrictions on how soon, or with what majority the legislative body can act.
When lawmakers identify a measure they don’t like, they typically taken one of three routes, says Altic. “One is to pass restrictions on the process; two is to repeal the actual initiative; and three has been to make compromises,” he said.
Restrictions have often taken the form of “meta-ballot measures about ballot measures,” says Altic, usually on the restrictive side. In 2017, 186 bills in 33 states were introduced with the intent to change the initiative process, according to Ballotpedia. This November, South Dakota voters will decide on a measure that would ban out-of-state contributions to citizens’ initiatives. (Similar bills failed in Arizona and North Dakota last year.) Other states have regulated the number of signatures necessary to get an initiative on the ballot, or restricted the eligibility of signature-gatherers themselves (they must be local volunteers, not paid staff).
Repeals are the most straightforward way to get rid of measures the legislature doesn’t like—but leaders can also just ignore them, or delay their implementation. After Maine voters passed a Medicaid expansion initiative by a 59-40 margin in 2017, Governor Paul LePage has simply refused to implement it, even after a state judge ordered him to comply.
And compromises can soften the blow: Instead of pushing through the more complete repeal, which was initially on the table, Mendelson introduced a revised version of the repeal bill in the days before the October vote, and that is what the council voted to pass. It scraps the wage increases, but introduces new legislation to prevent wage theft and sexual harassment, which 77 was meant to address.
Power can be grabbed back
There are political consequences to taking any of these approaches, even in the states where repeal is viable. “The reason you don’t see it all the time is because if this initiative passes by a large margin then [reversing it] is not a popular decision to make,” said Altic.
Choosing to defy the same voters who have voted these politicians into office, and can vote them out, is risky. “What this ultimately comes down to is, somehow [politicians] trust the voters to put them in office but they're not trusting the voters to understand what they need for their community,” said Figuerado.
Still, if the states overturn voters’ decisions, there is precedent for states themselves to be challenged. When Arizona attempted to reject a 2015 citizen-led ballot initiative that created an independent commission to oversee redistricting (and attempt to prevent gerrymandering), the U.S. Supreme Court ruled in the citizens’ favor and upheld the measure.
And rather than be disillusioned with the voting process if cities or states negate their vote, voters can be motivated to reclaim agency. In Maine, a bitter fight over the state election process swung back and forth over the course of multiple ballot measures: After voters approved a ranked-choice voting system in 2016, Governor LePage attempted to delay implementing the system until 2022. In June 2018, voters were able to weigh in again, this time to veto the law delaying it. That measure passed with more points than the first referendum did—the people prevailed.
“I think we are going to continue to see this trend, because this is ultimately a question about power and who has power,” said Figuerado. "I like to say the fourth branch of government is the people: Elections matter.”