State Lawmakers Push Back Against Ballot Measures

Last week, lawmakers in Ohio lost another skirmish in the larger battle between the legislatures and voters over the power of citizen-initiated ballot measures. As we’ve discussed previously, ballot measures are a direct challenge to a state legislature’s lawmaking responsibility. Ballot measure campaigns have become increasingly professionalized and well-funded as an avenue to bypass legislatures altogether, and it seems that lawmakers are pushing back. 

One strategy is to raise the threshold needed for citizen-initiated constitutional amendments. Generally, ballot measures need only a bare majority of votes (>50%) in the affirmative to amend the state constitution. In 2006, voters in Florida approved a constitutional amendment to increase the threshold to 60% and in 2018 raised the threshold to a two-thirds majority (>66.67%) for measures that increase or add new taxes or fees. Colorado voters increased their own threshold for voter approval of constitutional amendments to 55% in 2016. Campaigns supporting the threshold increases in these states argued that it should be more difficult to make changes to the state constitution in comparison to adding a statute.  

But recently, similar attempts to raise the threshold for ballot measure approval have failed. One reason is that voters are reluctant to take power away from themselves. Another reason may be that recent campaigns to lower ballot measure thresholds have been tied directly to upcoming votes on popular initiatives that the legislature opposes. 

Last year, voters in South Dakota rejected a measure that would have raised the threshold on certain ballot measures. In that case, lawmakers made it clear that they placed the measure on the low-turnout June primary election to make it more difficult to pass a Medicaid expansion measure that was scheduled to appear on the November ballot. To lawmakers’ chagrin, voters rejected the threshold increase and subsequently passed Medicaid expansion. 

Which brings us to Ohio. On Tuesday, voters overwhelmingly rejected Issue 1, which would have increased the threshold for citizen-initiated constitutional amendments to 60 percent instead of the current bare majority. Ohio lawmakers placed the 60-percent measure on the historically low turnout August ballot explicitly in hopes that it would apply the higher threshold for an abortion access measure set to appear on the November ballot. This turned the campaign on Issue 1 itself into a de facto abortion vote and neutralized the constitutional amendment procedural arguments that helped earlier threshold increases succeed at the ballot box. 

Now, raising the approval threshold is only one of several strategies state lawmakers have employed in their battle with citizen-initiated ballot measures. Another strategy — which Arkansas lawmakers enacted this year — is to increase the signature requirements and other procedural efforts to make it harder for initiatives to qualify for the ballot in the first place. Similarly, statewide officials in Michigan and Missouri recently refused to approve measures they opposed for the ballot altogether, even though they met all the legal requirements — in both cases the courts were forced to step in. And finally, lawmakers may simply ignore, significantly amend, or straight-up repeal voter-enacted measures. 

The courts must decide how many of these strategies will pass legal muster, but it’s ultimately up to the voters whether to reelect lawmakers that are set on overturning their policy preferences. In Ohio, lawmakers are already looking to return Issue 1 back to the ballot soon.  

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