Ballot initiatives for voters to directly pass laws, usually based on which side of the issue spends more, is allowed in about half the states based on their state constitutions. Ending the harm repeatedly caused by this form of direct democracy requires amending their constitutions.
Some states have increased the threshold for enacting a ballot initiative: 66% in New Hampshire, 60% in Florida, and 55% in Colorado. In 1998 in Utah, the threshold for ballot initiatives concerning the wildlife was increased to 66%. The Utah supermajority requirement was upheld by the Tenth Circuit en banc in Initiative & Referendum Inst. v. Walker, 450 F.3d 1082 (10th Cir. 2006) (McConnell, J.).
A flaw in one news article about post-election opposition to a ballot initiative is that the article fails to recognize that the United States is a representative democracy, and that legislators are elected too.
There are many strong legal arguments against ballot initiatives:
- When expansive, they go beyond the original intent of the constitutional provision allowing them.
- When implicating fundamental rights or state interests or undermining the legislature, they not proper subjects for a ballot initiative.
- When contrary to the republican form of government, they violate the Guarantee Clause of the U.S. Constitution.
- When the ballot initiative attempts to impose abortion-on-demand, that appears to be precluded by the Supreme Court decision overturning Roe v. Wade: "It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives." Dobbs v. Jackson Women's Health Org., 142 S. Ct. 2228, 2243 (2022).
- Foreign influence over state laws: only "seven states—California, Colorado, Maryland, Nevada, North Dakota, South Dakota, and Washington—prohibit foreign nationals from contributing to ballot measure campaigns, and two cities—Seattle, Washington, and San Jose, California—banned election spending by foreign-influenced entities." In November 2023, Maine voted to ban this also.
The Michigan Constitution is on the general election ballot for general revision every 16 years, and the next occurrence will be in November 2022.
The process of ballot initiatives in Michigan is explained by its legislature as follows:
An issue can become a statewide ballot proposal as a result of any of the following actions:
• A citizen petition invoking the initiative relative to Michigan’s statutes.With the exception of the constitutionally mandated provision that automatically places the question of a general revision of the constitution before the electorate every 16 years, every ballot proposal is the result of either citizen action (initiatory petitions) or legislative action.
• A citizen petition invoking the referendum relative to Michigan’s statutes.
• A citizen petition seeking to amend Michigan’s constitution.
• Legislation enacted by the legislature including a provision that says the legislation cannot become law unless approved by a majority of voters.
• A measure adopted by the legislature seeking to amend the constitution.
• A constitutionally mandated provision placing on the ballot automatically each sixteenth year the question of a general revision of the constitution. This question was on the ballot in 1978 and 1994.
States in 2024
"pro-abortion activists are seeking to introduce ballot measures [like Ohio Issue 1] in several other states going into 2024, so far including Arizona, Colorado, Florida, Maryland, Missouri, Nebraska, Nevada, New York, and South Dakota."