Ballot Initiatives and Pro-Voter Reform

This study seeks to examine the potential for ballot initiative-based, pro-voter voter reform as a means to combat a rising trend in voter suppression and restrictions on access to the ballot.

Campbell Streator

April 23, 2021

Today, after the most participatory election in American history, there is renewed hope in American democracy. At the same time, efforts to delegitimize the voting process and restrict the vote highlight the need for continued investment in the future of our democracy. According to the Brennan Center for Justice, more than 361 restrictive voting bills have been introduced in 47 states as of March 24th of this year. That is a 43% increase in restrictive bills since February2021. Five restrictive voting bills have already been signed into law around the country, and an additional 55 of the bills are moving through state legislatures.

While the prospect of federal voting reform through the passage of H.R. 1, the For the People Act, and H.R.4, the John Lewis Voting Rights Act Amendment, offers a potential buffer against this wave of restrictive voting legislation, it is worth exploring others. In particular, the possibility that the Supreme Court or a future administration or Congress could gut federal guidelines instituted under either of those bills means that state-level efforts cannot be ignored. Recent election cycles have highlighted the potential of one tool in particular as an exciting and effective method of reform: pro-voter ballot initiatives.  

In 2018 and 2020, ballot initiatives implementing electoral and democratic reform received significant support at the ballot box in states all over the country, and took center stage as a viable alternative to the legislative process. Across both election cycles, voters passed nearly 20 initiative-based reforms, implementing processes that improved voter registration, redistricting, and the way citizens vote. The success of these pro-voter ballot initiatives fits into a broader, decade long run of success for ballot initiatives, and citizen-initiated initiatives in particular. From 2010-2019, citizen-initiated measures passed at the highest rate of any decade since 1900-1909, while passing nearly ten times as many measures over the same period of time.

While some states have used ballot initiatives to roll back previous pro-voter reforms, or pass initiatives that voting rights advocates do not support—most notably by implementing stricter voter ID requirements and amending the language in state constitutions to stress that “only” not “every” US citizen and state resident can vote—the general trend is positive. A brief review of the reforms passed via initiative over the last few years shows that citizen-initiated statues and constitutional amendments have led to the expansion of automatic voter registration, same day voter registration, independent redistricting commissions, the restoration of voting rights for those with felony convictions, and numerous other pro-voter reforms. Many of those reforms were implemented in politically competitive swing states, and ran well ahead of candidates for statewide office.

 An in-depth study of those initiative campaigns reveals some valuable insights about initiative-based reform efforts, as well as keys to a successful campaign. The recent success of ballot initiative-based pro-voter reform, set against the backdrop of increasing efforts to restrict access to the ballot, delegitimize the voting process, and the risk of partisan gerrymandering, also highlights the possibility for future initiative-based reform. By charting how “pro-voter” a state is against the opportunity for initiative-based reform in that state, one can identify the best targets for future initiatives.[1]

 

Pro-Voter Ballot Initiative Trends and Takeaways:

· Recent, successful ballot initiative campaigns have expanded the same processes that are being targeted in statehouses. Access to absentee/mail-in voting is the main target of most of the restrictive bills studied by the Brennan Center, with voter registration and early voting opportunities also a target. Pro-voter reforms addressing those issues through processes like no-excuse absentee ballots, automatic voter registration, and same day voter registration have been passed via initiative in recent years.

· Many states are trying to make it harder to run a successful ballot initiative campaign. According to the Ballot Initiative Strategy Center, 24states—many  of them the same ones working to make voting more difficult—have introduced bills as of March 1, 2021 that would make it harder to get initiatives on the ballot and passed by voters. These bills target two key aspects of the initiative process: increasing the number of signatures required to get an initiative on the ballot and requiring a supermajority to be approved. Other bills would affect the process in related ways, like one in Utah, which prevents initiative campaigns from paying signature collectors by the hour, or one in Florida, which would limit donations to initiatives while they try and make it to the ballot.

· When they make the ballot, pro-voter initiatives usually pass. This is especially true, it seems, of redistricting initiatives. With the exceptions of a 2016 initiative in SouthDakota and 2005 and 2012 initiative efforts in Ohio, research for this study found that almost every pro-voter redistricting related initiative that made ballot in one of the states studied was passed by voters. Pro-voter initiatives, regardless of topic, often run well ahead of any state-wide candidate. This may be related to the fact that many successful campaigns come on the heels of initiatives that failed to make the ballot, which could be resulting in the development of a broad base of support over a number of years.[2] It also seems that pro-voter initiatives that fail to pass once on the ballot are often related to more drastic reforms, like ranked choice voting or the expansion of the right to vote to those younger than eighteen.  

· Ballot initiatives aren’t a perfect tool for circumventing partisanship or entrenched interests. While the success of robust reforms like Colorado’s Amendments Y and Z, Michigan’s Proposition 3, or Florida’s Amendment 4 in 2018 show the potential for ballot initiatives as a means of returning power to the people, the recent history of initiative-based reforms also highlights the challenges. Initiative-based reforms can face serious political and legal challenges even after being passed by voters, while others are prevented from even making the ballot. Furthermore, some reforms, even when passed, can be defanged, like Utah’s Proposition 4 in 2018, or undone entirely, like Missouri’s Amendment 1 in 2018, after the fact by state legislators resistant to change or partisanship in the courts.

· Initiative efforts require significant resources. Getting an initiative on the ballot, let alone passed, requires a significant amount of time, money, and effort. Most campaigns raise millions of dollars to help raise awareness and cover the cost of paying for and verifying signature collection—a practice that is very common. Even Proposition 2 in Michigan which collected enough signatures using only volunteers, raised significant funds to pay for signature verification and raise awareness among voters.

· The pro-voter initiative space appears to have a handful of very committed funders. The Action Now Initiative, an effort with ties to John and Laura Arnold, poured millions of dollars into efforts in multiple states during the 2018 and 2020 election cycles, and other groups like the 1630 Fund and the ACLU have also donated millions. These efforts are supplemented by a handful of national names like Michael Bloomberg and Kathryn Murdoch, among others.

o  Most successful campaigns also seem to garner serious donor support from a high net worth, political donor in the state where the initiative is being pushed.

 

Keys toSuccessful Ballot Initiative Campaigns

· Addressing the Goldilocks problem: It may seem overly simplistic to say that a successful ballot initiative campaign relies on identifying the right opportunity, in the right state, at the right time, but it is essential. Campaigns that take on the wrong scope often fail. If the focus is too large it may attract the full attention of entrenched interests and inspire a well-funded opposition campaign. If it’s too small, it may seem unimportant to voters or fail to tap into public sentiment. Relatedly, when the timing is right, like when Oregon firefighters and law enforcement organizations looked to increase control over their pensions via initiative after 9-11, initiatives can face far lower opposition than they might when the political climate is less favorable. With that said, it seems that the timing is ripe for further electoral and democratic reform via ballot initiative. They’ve had success in recent years, and the public outcry in response to recent efforts by states to restrict the vote would seem to indicate a broad desire for easier access to the ballot. The challenge of identifying the right reforms to push for in each state remains, and identifying which reforms advocates in those states would support is a key step in building a successful initiative campaign.

 · A well written ballot summary and fiscal note: Many initiative campaign experts believe that “no single factor is more important to the success or failure of a campaign” that the language and title of the initiative. The wording of a ballot initiative, especially the language the voters see on the ballot, is incredibly important and can impact the outcome of an initiative campaign. The job of crafting this language often falls to a state’s Attorney General or State Secretary of State—something both parties have noticed and tried to act on—and their word choice is often contentious, with unhappy campaign supporters or unsympathetic critics bringing challenges to court. As such, picking a state with a friendly Attorney General or StateSecretary of State could help a campaign’s chances. Some states allow proponents to write their own language, and in those cases, “most successful campaigns test alternative ballot language through public opinion polling and focus groups.” The language of fiscal notes, an attachment that outlines the budgetary implications of an initiative and is required in most states, is also important. A note that highlights the added expenditures of an initiative without drawing attention to possible savings doesn’t help an initiative’s chances of passing.

 · Attracting Resources and RaisingAwareness: The success of initiative campaigns is correlated to fundraising, and simply put a successful campaign will likely need to outspend its opponent. Ensuring that a campaign has a fundraising plan and a steady stream of access to donors, allies, and volunteers is essential to its success.  Across the 2018 and 2020 initiatives highlighted in this study, the average citizen-initiated, pro-voter ballot initiative raised just under $9,000,000 and spent just over $8,500,000 over the course of the campaign. While financial support is the most obvious potential need for raising awareness, building alliances with relevant stake holders, including local organizations, grassroots efforts, and individual ambassadors can help reduce or split the financial burden of a campaign. Voters will need to know what they are voting for or against, and while the ballot is the first place many of them will read an initiative, a strong coalition and extensive people power can help build a broad base of support prior to election day.  

 · BalancingSignature Collection and Raising Money: As noted above, a successful campaign is often the more expensive campaign. It’s also true that while exact costs are hard to predict, collecting and verifying enough signatures to make the ballot is a significant hurdle into which most campaigns sink significant resources. This is especially true in larger states, which require more signatures, and states that have stricter rules requiring geographic distribution of signatures, both of which lead to generally higher costs of signature collection. The average cost per signature for the citizen-initiated, pro-voter ballot initiative campaigns highlighted in this study that paid for help across 2018 and 2020 was $6.71, with the overall cost of qualifying for the ballot falling just over $1,900,000. All of that said, if signature collection will eat the majority of the resources a campaign spends making the ballot, the campaign will be in trouble. While there are numerous petition drive management companies that can be hired to help collect signatures, successful campaigns also often inspire large amount of volunteer engagement and tap into mission-aligned organizations and allies that can help get over the hurdle of qualifying for the ballot. A related consideration is to collect significantly more signatures than is legally required, as many are likely to be deemed invalid.

Pro-Voter Ballot Initiative Opportunity Reform Matrix

To create a matrix which can be used to identify opportunities for initiative-based reform, one can chart the cost of voting in a state against the against the opportunity for initiative-based reform in that state, as measured by the types of reform permitted via ballot initiative, the number of initiatives passed in recent years, and the rate of success of those initiatives. Each state is then populated on the matrix as a bubble. The color of each bubble represents the state of redistricting in each state: red represents a single-party, politically controlled process, yellow is for states with advisory or political commissions, as well as states that have passed reforms which can limit abuse in the case of single-party control, and green is for states with an independent redistricting commission. The size of each state’s bubble correlates to the number of ballot initiatives passed since 2013, and the shading represents the percentage of initiatives that have passed in thats same period. The higher the percentage that have passed, the less transparent the bubble.

An examination of the created matrix, seen below, with a focus on the top-right, “high cost of voting and high opportunity for reform quadrant” of the matrix, highlights 13 states, broken into tiers, as the best potential opportunities for initiative-based reform.

Cost of Voting, Redistricting Control, and Ballot Initiative Opportunity Matrix

Tier 1

· Florida: While Florida only allows for initiatives that amend the constitution, the large number of initiatives approved in the state and the high rate with which they pass, may indicate an opportunity for reform. As a state without same day registration or an automatic voter registration process, an initiative modeled on Michigan’s Proposition 3 from 2018 could have a significant impact inFlorida, where, according to Common Cause, there are about 4.5 million people who are eligible to vote but aren’t registered. Florida also falls into the Brennan Center’s highest risk category in their analysis of redistricting in 2021-2022, and while there hasn’t been initiative-based redistricting reform in Florida since a highly contentious set of amendments in 2010, the success of 2018’s Amendment 4 highlights the added opportunity for significant impact through initiative-based reform in Florida.

· Arkansas and Missouri: Finding themselves among the bottom ten states when it comes to cost of voting, and allowing for both statute and amendment related initiatives, Arkansas and Missouri are located in the very top-right part of the “high cost of voting and high opportunity for reform”quadrant of the matrix. Both states have passed a similar number of initiatives since 2013, but Arkansas has passed them at a much higher rate. Missouri, though, has seen a larger number of elections and redistricting related measures hit the ballot recently, so ranking one as a target over the other is difficult. Both are in need of redistricting reform, as well as automatic voter registration, same day voter registration, no excuse absentee voting, and voting rights for those on probation or parole. Additionally, Missouri voters would benefit from the addition of early voting options and the loosening of rules around pre-registration for voters under eighteen. Meanwhile, Arkansas voters would benefit from online voter registration and the implementation of any form of pre-registration.

o  Challenges to recent initiative-based redistricting reform efforts in both Arkansas and Missouri also highlight the difficulties related to such reform in these states, even when the opportunity for impact is high.

Tier 2

· Arizona: Arizona allows for both statute and amendment focused initiatives, and has passed 10 of 14 ballot initiatives since 2013. That, coupled with the fact that Arizona has introduced the third most restrictive voting bills this spring and needs to implement automatic voter registration, same day registration, and pre-registration for those under eighteen, makes Arizona an appealing target for initiative-based reform. Arizona also falls among the strictest states in terms of felony disenfranchisement. Furthermore, while it has been some time, Arizona has used initiatives to implement pro-voter reform in the past, most notably in the creation of an independent redistricting committee.  

· South Dakota: South Dakota falls on the wrong side of the middle of the pack when it comes to the cost of voting, ranking 29th, but allows statute and amendment related initiatives. It has also passed more than a dozen ballot initiatives since 2013. The lack of online registration, same day registration, and automatic voter registration, the latter two of which have been frequently implemented via initiative in recent years, present very tangible and impactful opportunities for reform. South Dakota also has room for reform on felony disenfranchisement, particularly in regards to voting rights for those on probation or parole. Furthermore, while South Dakota has only a single congressional district, its state level redistricting process is politically controlled by a single-party and is in need of reform. There have been repeated efforts to pass redistricting reform in recent years, with amendments failing to make the ballot in 2020 and 2018, and a 2016 amendment that would have created an independent commission failing to pass despite making the ballot. 

· Nevada: Nevada ranks just ahead of South Dakota in ease of voting, also allows statute and amendment related initiatives, and has passed a similar number initiatives since 2013, but has done so at a much higher rate. The state has also seen the recent success of Question 5 in 2018, which implemented automatic voter registration.The reason Nevada falls below South Dakota in this ranking of opportunities for reform is that Nevada already has many of the pro-voter reforms that SouthDakota lacks.  That said, three adjustments to existing programs could lower the cost of voting in Nevada:expanding early voting by starting it sooner, extending voter registration by moving back the deadline, and expanding pre-registration to 16-year-olds.Nevada also needs redistricting reform. A redistricting focused initiative failed to make the ballot in Nevada in 2020, likely due to the challenges of collecting signatures during the COVID-19 pandemic.

Tier 3

· Oklahoma: Oklahoma falls among the bottom 20 states in terms of cost of voting and allows for statute and amendment related initiatives, but has passed fewer initiatives at a lower rate than many of the other states in the “high cost of voting and high opportunity for reform” quadrant of the matrix. That said it lacks automatic voter registration, same day registration, and pre-registration, in addition to having a very short early voting period and early voter registration deadlines. Oklahoma also has room for reform on felony disenfranchisement, particularly in regards to voting rights for those on probation or parole. Like Nevada, Oklahoma remains in need of redistricting reform after a redistricting initiative failed to make the ballot during the COVID-19 impacted 2020 election cycle.

· Mississippi: Mississippi has one of the least active ballot initiative processes in the “high cost of voting and high opportunity for reform quadrant of the matrix,” but when initiatives do end up on the ballot, they pass at a relatively high rate—especially in 2020 when all three initiatives on the ballot were passed by voters. Mississippi is also one of the five worst states in terms of cost of voting. While it only allows for amendment related initiatives, the pro-voter reforms that could be implemented in Mississippi have been done via citizen-initiated amendments in other states. The potential reforms include: online voter registration, same day voter registration, automatic voter registration, pre-registration for those under 18, the implementation of early voting, and no excuse absentee voting. Mississippi also falls among the strictest states in terms of felony disenfranchisement, and is in need of redistricting reform. Mississippi falls into the Brennan Center’s second highest-risk category this redistricting cycle, as this round of redistricting could see heated debates over efforts to increase the number of Black-majority legislative districts and to potentially add a second Black-majority congressional district.

· Ohio: Ohio allows for both statute and amendment related initiatives, and has passed the same number of initiatives as Mississippi since 2013, but has done so at a lower rate. That said, Ohio recently passed redistricting reform via initiative in 2018, and most of the pro-voter reforms that could be implemented are among those that have been implemented via initiative in other states in recent years. Those reform include same day registration, automatic voter registration, and pre-registration.

Tier 4

·  Nebraska: Nebraska falls just on the right side of the cost of voting index, ranking 22nd out of 50, but still has room for improvement and has passed initiatives at a high rate in recent years. While Nebraska has passed fewer initiatives than most of the states discussed in the “high cost of voting and high opportunity for reform” quadrant of the matrix, it has passed 8 of 9 initiatives since 2013.Furthermore, two clear opportunities for reform, automatic voter registration and same day voter registration, are reforms that have passed via initiative in other states in recent cycles. Nebraska also falls among the strictest states in terms of felony disenfranchisement, and saw a redistricting related initiative fail to make the ballot in 2020.

· Oregon: In the matrix, Oregon stands out as a state with the lowest cost of voting, a high opportunity for reform, and a red bubble that indicates the need for redistricting reform. An effort to implement redistricting reform in Oregon failed to make the ballot in 2020, likely due to COVID-related challenges.

 · Massachusetts and Illinois: Massachusetts and Illinois both fall among the better states in terms of cost of voting, and have passed fewer initiatives than other states with more active ballot initiative process, but both have redistricting processes that are under single-party control. Unlike Nebraska, Nevada, Oklahoma, and Oregon, there were no initiative campaigns focused on redistricting in these states in 2020.


[1] While more states have seen initiative-based pro-voter reform in recent years, most often in the form of legislatively referred initiatives, this study is most concerned with states that allow citizen-initiated initiatives, of which there are 26, and will consider only those 26 as states where initiative reform is permitted. Those 26 states include Those states include Alaska, Arizona, Arkansas, California, Colorado,Florida, Idaho, Illinois, Maine, Maryland (veto referendums only),Massachusetts, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, NewMexico (veto referendums only), North Dakota, Ohio, Oklahoma, Oregon, SouthDakota, Utah, Washington, and Wyoming. Within those 26 states, some allow initiatives to amend the state constitution and institute legislation, while others only allow one or the other, and some only allow veto referendums.