The Republicans who lead Idaho’s Legislature spent more than two years smarting over the passage of a 2018 ballot initiative that forced the state to expand Medicaid. They were also plotting their revenge.
This spring, as the lawmakers worried about a looming proposal to legalize medical marijuana, they passed a bill instituting an aggressive new standard on ballot campaigns. The outcry was fierce, with liberal activists quickly gathering 16,000 signatures from residents opposed to the legislation — including from rural counties the lawmakers said they were trying to help. Former state Supreme Court Justice Jim Jones delivered the petition to Republican Gov. Brad Little.
But Little was unmoved and signed the legislation in April, making Idaho home to some of the nation’s most restrictive requirements for ballot petitions. Organizers there are now required to secure signatures from 6 percent of voters in all 35 legislative districts in the state to get a question on the ballot for voters to decide.
The Idaho bill is part of a wave of legislation moving through GOP-controlled legislatures that’s intended to combat progressive policymaking at the ballot box. Successful referendums to expand Medicaid, legalize marijuana and fund public education through taxes on the wealthy have all faced similar threats following consternation from conservative lawmakers.
As Democrats have decried Republican efforts to restrict voting rights, lawmakers have also quietly chipped away at the citizen-driven referendum process in statehouses across the country. A record 146 bills were introduced in recent legislative sessions to change the ballot process in 36 states, according to an analysis by the Ballot Initiative Strategy Center. Critics say lawmakers are intentionally trying to complicate the ballot process so that it becomes too expensive and cumbersome for grassroots organizers to get issues directly in front of voters. Lawmakers have also attempted to retroactively undo parts of initiatives approved by voters in some states.
“Those legislators are intimidated,” said Corrine Rivera Fowler, policy and legal advocacy director at the Ballot Initiative Strategy Center, a progressive group that advocates for left-leaning ballot campaigns. “Their political ideals are being threatened by progressive policies that are passing. Maybe they should consider that.”
Some of these bills contain tweaks to existing law, like changing font size and word counts allowed in ballot petitions, seemingly miniscule adjustments that could actually lead to signatures being thrown out. Others call for wholesale alterations to the ballot process, like raising the approval threshold for constitutional amendments or mandating that a certain percentage of signatures be collected from every legislative district.
The Republicans behind these measures brush off criticism that they’re taking away power from constituents as punishment for voters supporting progressive policies. They counter that the influence of out-of-state interest groups that run these ballot campaigns has gotten out of control and they don’t truly represent the interest of voters and therefore more requirements should be implemented to maintain integrity in the process.
In 2018, for example, the national group Fairness Project spent $6 million to support Medicaid initiatives that passed at the ballot box in Idaho, Nebraska and Utah. In 2020, the group spent nearly $700,000 on Medicaid expansion campaigns in Oklahoma and Missouri. The nonprofit is funded through grants, institutional donors like labor unions and individual contributions. And in 2020, marijuana advocates vastly outraised their opponents, supported by national groups like New Approach PAC and liberal dark money group the North Fund. Medicaid proponents have similarly outraised their opponents, and much of that funding came from local donors like hospital associations and individual health systems.
Ballot campaigners say that Republicans are actually the ones responsible for those high costs because they’re applying more rules to the process, driving up expenses. A typical campaign in Missouri costs close to $2 million just to get an issue on the ballot because of costs like hiring staff, printing flyers and airing advertisements, said Ron Berry, a Missouri lobbyist and political consultant for ballot initiatives. To get on upcoming ballots in 2022 and 2024, campaigns must gather more than 171,000 signatures for constitutional amendments and more than 107,000 for statutes and referendums.
“You can’t do it as a true voluntary citizen,” Berry said. “You just don’t get enough volunteers and it costs money.”
“One of the arguments for this is to take dark money out of the process,” he added. “But I would say they’re opening it up to dark money.”
So far, the efforts by Republicans to raise the bar for qualifying initiatives have been incredibly successful: Red states enacted 24 laws amending the ballot process in the most recent legislative sessions. Oklahoma Gov. Kevin Stitt, for example, signed a pair of laws in May that allows for recounts of certain state questions and another that requires some initiatives to include fiscal impact statements.
That comes after voters narrowly passed an initiative to expand Medicaid last year. Residents in the state also recently legalized medical marijuana, reclassified drug possessions from felonies to misdemeanors, signed off on a political ethics package with redistricting reforms and overturned a right-to-work law.
Oklahoma state Rep. Chad Caldwell, a Republican, said he was suspicious of a discrepancy in the Medicaid expansion results: early voters were more likely to support the initiative while those who voted in person on the day of the election were often opposed. So he introduced a bill calling for recounts of state questions that fell within very narrow margins of victory. The Medicaid expansion initiative — which passed by 6,488 votes — would have qualified for a recount if that law was in effect at the time.
“It’s a very interesting breakdown and I think people just wanted to take an extra look at it,” he said. “It really doesn’t have anything to do with trying to help or hurt initiative petitions. It 100 percent just has the opportunity to clarify things and bring transparency.”
But Oklahoma Democrats in the legislature didn’t buy that justification. The state has a secure election system and there was no evidence of any irregularities, said Senate Minority Leader Kay Floyd.
At the time of its passage, Oklahoma was one of 14 states that had not expanded Medicaid coverage to low-income residents. The state is in the process of enrolling new Medicaid recipients and at least 200,000 Oklahomans are expected to gain health care coverage under the new rules.
“Just call it what it is — the people made a decision to expand Medicaid and the legislature hadn’t done anything for a decade,” Floyd said.
In Missouri, Gov. Mike Parson may call lawmakers back from recess to consider an elections package that may include a bill passed by the state House that would require a two-thirds majority vote to enact constitutional amendments. The House Elections Committee requested a special session to further debate the bill, which would also increase the geographic signature requirements to 10 percent from each congressional district for constitutional amendments and 5 percent for petitions aiming to change state law.
Not all ballot initiatives have pushed liberal-backed policies. California, where initiatives campaigns have long been a big business for interest groups and political operatives, has had a cap on property taxes for more than four decades thanks to a 1978 proposition. A union-driven effort to roll back the cap failed to pass in 2020. It is common in the state for single industries — like tobacco producers, plastics manufacturers or bail bondsmen — to fund initiatives that affect their bottom lines.
But it is also true that Democrats have used the ballot process in many GOP-run states to score big victories of late. The most recent efforts from Republicans to restrict that process can be traced to Florida, where there’s been nearly a decade of political drama over progressive ballot measures.
That culminated in 2018, when nearly 65 percent of Florida voters approved an amendment to the state constitution to restore voting rights to people convicted of certain felonies upon completion of their sentence.
That initiative had been in the works for years, and Republicans were ready to respond. Just one year later, Gov. Ron DeSantis signed a law prohibiting any people convicted of felonies from voting unless they paid off all legal financial obligations — an action estimated to prevent at least 770,000 people from voting.
While a federal court later found that law unconstitutional, a playbook had been written and replicated in other states.
Florida’s ballot restriction measures didn’t stop there, either. Lawmakers have created more and more rules around voting and public ballot initiatives, and there’s an ongoing court battle over a new law that limits contributions to initiative campaigns. The GOP Legislature passed a law this year that places a $3,000 limit on contributions to political committees collecting signatures for proposed constitutional amendments.
The state Attorney General’s Office defended the law by arguing that the cap was needed to ensure integrity in the ballot process and “that the significant funding needed for a successful initiative petition has not been provided by a small handful, or even a single, very well-heeled special interest donor.”
But a federal court ruled in early July that the law violated First Amendment rights. The state has not yet indicated if it plans to appeal.
Not all legislative efforts have been successful, though. While the Idaho Legislature passed the bill to increase signature requirements, other attempts to restrict marijuana measures at the ballot failed. One Republican senator attempted to change the constitution with a resolution that would have effectively barred marijuana legalization campaigns. The House ultimately rejected the proposal.
It’s not the first time Idaho lawmakers have sought to restrict the ballot process. In 2013, they passed a bill to do the same. Since then, very few initiatives have even made it before voters and only one has passed: the 2018 question to expand Medicaid.
Reclaim Idaho, the group behind the Medicaid expansion initiative, is challenging the new law increasing signature requirements in a lawsuit in state court. The group was working on an initiative that would raise taxes on the wealthy and invest in public education, similar to a measure Arizona voters approved at the ballot box last year (and that is now tied up in a court challenge of its own).
A court decision is expected in the next few weeks on the legality of the Idaho law. If the court rules in favor of the state, the group plans to focus on another ballot question to get rid of the new geographical distribution requirements entirely.
State Sen. Steve Vick, a Republican who sponsored the measure, did not respond to a request for comment, but said during a committee hearing in February that he was concerned about rural representation in the initiative process. He argued that requiring signatures from every legislative district would force organizers to give voice to residents from far flung corners of Idaho, ensuring “that we don’t forget some of those people.”
But Luke Mayville, co-founder of Reclaim Idaho, said rural voters “already are represented at the ballot box.” Tougher petition requirements, he said, means organizers need to run bigger campaigns.
“High thresholds for state-wide signatures are very hard to meet, especially for grassroots organizations,” Mayville said.
For direct democracy advocates like Mayville, the trend of restricting ballot initiatives is not treated with the same urgency as Republican-led legislatures passing bills to restrict voting access. As of June, 17 mostly red states enacted 28 laws to restrict voting, including restrictions for mail-in ballots, stricter voter ID requirements and reducing polling place hours on Election Day, according to the Brennan Center for Justice.
“This set of attacks on the ballot initiative process is one part of a much broader set of attacks on democracy itself,” said Kelly Hall, executive director of the Fairness Project.
If the new geographic requirements stand, Mayville estimates that ballot campaigns will need $2.5 million to qualify for the ballot. Volunteer-driven grassroots efforts would struggle to access that kind of funding.
The medical marijuana initiative, which was filed before the bill was enacted, won’t be subject to the new restrictions, said Russ Belville, a spokesperson for Idaho Citizens Coalition for Cannabis. But his group is also working on another initiative that would decriminalize marijuana purchased from legal-marijuana states, which would run up against the new requirements.
“So far, we don’t have the money,” Belville said. And he faces an uphill battle to raise the funds, even from national organizations that back state marijuana campaigns. While marijuana legalization campaigns in other states have vastly outraised their opposition, Idaho campaigns typically see little financial support because the state only allows statutory initiatives and not constitutional amendments. That means initiatives can be overturned by the legislature.
A similar fight is brewing in South Dakota over the ballot initiative process. Some Republicans, including Gov. Kristi Noem, are pushing back on an adult-use marijuana ballot measure that voters approved last November. Noem has supported a legal challenge to the measure, which the state Supreme Court has yet to weigh in on.
Marijuana advocates are already gearing up to put another marijuana legalization question on the ballot for 2022. And another group, Dakotans for Health, are collecting signatures to put Medicaid expansion on the ballot.
The legislature’s response? A resolution to require a 60 percent threshold for any ballot measures that create new taxes or will require the state to appropriate more than $10 million in the first five years of enactment.
The resolution, which asks voters to change the state constitution, was initially drafted to go on the ballot in the 2022 general election. But Republican Sen. Lee Schoenbeck amended the resolution to place it on the 2022 primary ballot instead.
“Even if you think the 60 percent [threshold] should be in place … it’s indefensible to place it on a primary ballot,” said Matthew Schweich, who leads ballot initiative efforts for marijuana advocacy group Marijuana Policy Project and also consults on other ballot campaigns.
That resolution is “100 percent because of Medicaid,” Schweich said. Lawmakers know that marijuana advocates can place another legalization question without qualifying for the 60 percent rule, he said.
Schoenbeck did not respond to a request for comment, but during debate on the measure in March said that his amendment would “give the voters a chance to build this protection into the system.” Because Medicaid expansion could end up on the general election ballot, putting the resolution on the primary would allow voters to increase the threshold before the general election.
But even other fellow Republicans expressed concern over putting the measure on a primary ballot, when voter turnout is historically much lower, the Rapid City Journal reports.
Schweich is so concerned with the trend of legislative efforts to restrict ballot initiatives that he’s considering creating a nonpartisan political organization dedicated to defending the ballot initiative process.
“These attacks on the initiative process should not be fought on a one-by-one basis,” he said. Having an organization dedicated to the issue can help “build up institutional knowledge — learn lessons from one state and apply them to another.”
In Idaho, another attempt to restrict ballot campaigns has backfired on lawmakers. The legislature passed a bill in May to bar signature gathering for petitions outside the state, a rule designed to prevent marijuana advocates from collecting signatures at border town pot shops in Oregon.
But the attorney general deemed the bill likely unconstitutional because it would disenfranchise Idaho voters who resided out of state, prompting Little — no friend of the marijuana cause — to veto the bill.
Thanks to the bill’s ultimate failure, advocates promptly started gathering signatures at a dispensary on the Oregon-Idaho border — something they didn’t know they could do before.
“Some people had driven as far as five hours one way just to buy marijuana and sign the petition,” Belville said.
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