2022 election results: What we learned about the future of ballot initiatives

The marquee races for governor and US Senate got the most attention in this year’s midterm elections, but Arizona was also the battleground for the future of ballot initiatives in the United States.

On the one hand, citizen advocates proposed an inventive ballot measure to protect people from medical debt by capping interest and exempting more of their money and property from seizure. It was the first initiative tackling that particular issue, building off the success of other recent ballot questions concerning economic security that have sought to expand Medicaid and to increase the minimum wage, and it passed overwhelmingly.

But Republican state legislators put forward two of their own ballot measures meant to limit the scope of the initiative process going forward. One would have given the legislature more authority to invalidate approved initiatives, while the other would have set a supermajority threshold, 60 percent, for any future initiatives to be approved.

The proposal that would have allowed the legislature to amend approved ballot initiatives was a clear loser, with two-thirds of voters rejecting it. The fate of the supermajority requirement, however, is uncertain as of Wednesday morning, with the “Yes” side holding a narrow lead with plenty of votes left to count.

That tension — expansive uses of the ballot measure to advance policy versus efforts to undermine the initiative process — could be found on ballots throughout the country. In South Dakota, voters earlier this year rejected a question that would have put new constraints on ballot measures. That question was understood to be a preemptive attempt to stop a proposal on the November ballot to expand Medicaid — which passed on Tuesday.

In New Mexico, voters approved a novel ballot initiative to expand child care access by drawing funding from the state’s reserves of oil and gas revenue, again with more than 70 percent of the vote. Nebraska approved a $15 minimum wage. An initiative to hike taxes on the wealthy in Massachusetts to fund education and transportation projects appears to have the support of the electorate, though it was still too close to call as of Wednesday morning. Coloradans are also on the verge of okaying an affordable housing plan, two years after a ballot initiative creating a paid sick and family leave program passed, though that race has also not yet been called.

“There’s been this vacuum of leadership, and in places where voters can take matters into their own hands, they’re doing it,” said Kelly Hall, executive director of the Fairness Project, which has worked to support minimum wage and Medicaid expansion initiatives across the country.

But the initiative process has also been under attack in Arizona, South Dakota, and elsewhere. Arkansas also voted Tuesday on a ballot initiative that would have set up a new supermajority requirement for future initiatives, though that measure failed with nearly 60 percent of voters opposed. State lawmakers are also considering more bills to constrain future initiatives. In 2017, the Ballot Initiative Strategy Center was tracking fewer than 40 bills that would have changed the ballot initiative process; across 2021 and 2022, they have identified more than 200 bills that would limit or undermine the initiative process.

Ballot initiatives are more than a century old, and their use varies widely. Some states don’t allow them at all, others limit them to up-or-down votes on policies already passed by the state government, while still others allow for citizens to propose their own policies and put them before the voters.

But the ballot initiative process is at a critical juncture, depending on which side — the advocates who use ballot measures to circumvent stagnated policymakers and the elected officials who want to stop them — prevails. In one future, the US would continue to see the ballot initiative process used in expansive ways. In the other, ballot initiatives could end up being choked off as a vehicle for policymaking if thresholds are raised or the legislature can simply decide to ignore or invalidate an approved initiative.

“In the context of party politics that has become so destructive, these are providing an avenue for people to legislate otherwise,” Benjamin Case, a postdoctoral researcher who co-authored a report earlier this year on the use of ballot measures, told me. “The risk is people really have internalized a lot of this partisan antagonism. That helps Republicans frame this as a partisan issue and maybe they are able to convince people to give up this right.”

In the age of political polarization and calcification, ballot initiatives have become a valuable tool for policymaking. But the very same trend could be wielded as a weapon against future ballot initiatives, as state lawmakers try to convince their constituents to vote away their decision-making rights through ballot referenda.

In the immediate wake of Election Day, it appears ballot initiatives remain a powerful tool for political change. But the razor-thin margin of Arizona’s supermajority initiative is a signal that this fight is far from over.

How ballot measures (re)emerged as a tool for economic populism

Ballot initiatives entered the American democratic process in the late 19th century, in South Dakota of all places, as an indirect way for progressives to circumvent unresponsive governments that had been captured by special interests. Initiatives to enfranchise women and to fund workers’ pensions were popular in the early years. But over time, as the progressive movement lost its influence, ballot measures were often reduced to addressing anodyne local issues.

In the 1970s, ballot initiatives resurfaced as a way to advance a policy agenda unlikely to be taken up by the ruling government — but, this time, for conservatives. In California in particular, they used ballot measures to stop increases in property taxes, among other conservative priorities. Through the ’80s and ’90s, as conservatives seized on fears of crime to regain power, ballot initiatives focused on the death penalty or three-strike laws, which could lead to life sentences for relatively minor offenses, became popular. Republicans also used ballot measures to ban same-sex marriage to juice turnout in the 2004 election.

It was not until last decade, the 2010s, that ballot initiatives reemerged as an instrument for economic egalitarianism and redistribution. That started with minimum wage initiatives, spurred on by labor unions like SEIU. One California chapter spun off the Fairness Project from its in-house advocacy work in order to put working-class issues on ballots across the country.

When state action on Medicaid expansion started to slow down after the 2016 election, advocates began to put the question to voters directly via ballot initiative. Now New Mexico (with its child care proposal), Arizona (on medical debt), and Colorado (affordable housing) have approved a slew of new economic security policies via ballot questions, and advocacy groups are already looking to export those successes to other states in upcoming elections.

The hallmark of this new era of ballot initiatives has been economically progressive policies being approved by voters in conservative states. States such as Oklahoma, Utah, and Nebraska have elected state officials resolutely opposed to the Affordable Care Act. But when the question of whether or not to expand Medicaid through the law was put to voters directly, they signed off on the plan.

“Clearly, a key reason why initiatives remain in use is that there are opportunities to change policy that are harder to accomplish in state legislatures — especially now that more and more states feature ‘one-party’ control of legislatures and are thus hostile to policy goals associated with the other side,” John Sides, political scientist at Vanderbilt University, told me. “In a sense, supporters of an initiative can use the process to make an end run around the legislature.”

In Arizona, advocates didn’t see any viable option for addressing medical debt with a Republican governor and state legislature. Hospitals and debt collectors, the two groups most likely to oppose such a plan, were too powerful in Phoenix, and people saddled with medical debt are not normally a politically formidable constituency.

“There is no pressure from the industry to act and a legislature captured by business interests was not going to tackle this issue,” Joe Gerald, a health services researcher at the University of Arizona, said. “People aren’t going to clamor for it, but if all they have to do is check a box, they recognize the financial risk that a medical condition would impose on them or others and are willing to give people the benefit of the doubt.”

According to research from Case and his colleagues, economically redistributive ballot questions have passed 85 percent of the time in Republican-controlled states over the past decade. (That’s an even higher rate than in Democratic states, though California — where ballot initiatives are still often used to constrain the Democratic state government — throws the math off a bit.)

In Case’s view, the success of economically progressive policies on ballot measures put forward in conservative states is evidence that Americans are not as divided on policy as we may think.

“What’s special about them is they at least provide the possibility of people to come together in broad agreement on policies,” he said.

But the same political forces that have recently made ballot measures an effective tool for overcoming legislative stagnation also threaten their future viability.

Ballot measures are coming under attack in Republican states

I asked Case how the same electorate could vote to approve ballot measures like these and a slate of conservative elected officials who oppose the same policies.

“The two major parties have become brands unto themselves and have managed to convince voters to identify with those brands, to incorporate that as a part of their identity,” he told me. “There actually is a lot of agreement among working-class and middle-class people … Ballot measures can pass policies that improve people’s lives. They’re an avenue to reveal what’s going on in the political landscape.”

Republicans are leaning on that brand loyalty to try to squelch the progress being made through ballot initiatives. The ballot questions referred by the Republican state legislatures in Arizona, Arkansas, and South Dakota this year were asking voters to give up their own power to put policies in place without needing their elected representatives to act. They relied on the specious argument that such ballot initiatives are a stealth tool for Democrats to sneak economically progressive policies past the unwitting freedom-loving electorate.

“Requiring a 60-percent vote … means putting a check on out-of-state special interest groups,” Arizona’s Republican governor, Doug Ducey, said in support of the initiative that would establish a supermajority requirement for future ballot measures in the state. “In recent years, we’ve seen groups from San Francisco and Portland spend tens of millions of dollars pushing initiatives to raise our taxes for their pet causes. That’s not right.”

Likewise, in South Dakota, the conservative group Americans for Prosperity argued the proposed supermajority requirement would “protect South Dakota from tax-and-spend groups who want to use the ballot process to bypass the elected legislature.”

It is an attempt to convince voters that the very policies they have supported at the ballot box are not what they actually want, deploying nakedly partisan attacks to reframe the very question of ballot initiatives in “us vs. them” terms, Republicans versus Democrats, rather than fight on the merits of the policies being proposed.

“They are using their strongest play, which is to try to get people to see everything with their red or blue hat on,” Hall said.

In reality, these politicians are asking voters to give up their own power to set the policy agenda. The same logic is motivating the 200-odd pieces of legislation currently being proposed in state legislatures across the country to limit the scope and authority of future initiatives.

There has always been a tension between legislative bodies and ballot initiatives. By their nature, ballot questions erode the legislature’s monopoly over policymaking. But the recent attacks on the initiative process appear, at least to Case, particularly cynical.

“Elected representatives are trying to trick voters into voting away their power. That’s not really an exaggeration,” he said. “In the context of such polarization, I think it’s vulnerable to people being convinced to do it anyway.”

For now, that still seems like a tough sell for US voters. This year, South Dakota and Arkansas resoundingly rejected measures to give up their power to make policy by ballot initiative. Ambitious proposals for expanding the social safety net were okayed across the country, some in deep-red places.

But the still-uncalled Arizona supermajority initiative serves as a warning. If Republicans can convince voters in one state to surrender their own policymaking authority, they are likely to keep trying elsewhere. This story isn’t over yet.