Derek Clinger, Senior Staff Attorney
The past year saw a continued trend of increased interest in direct democracy, with the highest number of statewide ballot measures for an odd-numbered election year in over 15 years. These measures, which came from both state legislatures and citizen-led initiative campaigns, addressed an array of subjects ranging from reproductive rights to religious rights, public utilities to public benefits, and taxation to timber production.
Many of the measures decided also involved matters related to democracy. These measures presented voters with essential questions like who can vote, how elections should be run, and whether to restrict their own ability to engage in direct democracy in the future. The particulars of the measures varied, as did the voters’ responses. And with the coming presidential election cycle in 2024, voters can expect to see even more of these types of ballot measures in the coming year.
This explainer recaps 2023’s democracy-related ballot measures, exploring the legal and political context in which they were proposed, as well as some of the arguments offered for and against them. It then looks ahead to the democracy-related measures that may appear on the ballot during the pivotal 2024 presidential election cycle.
Recap of 2023’s Democracy-Related Ballot Measures
In 2023, voters in eight states decided a total of 41 statewide ballot measures. That marks an expected decline from the 140 measures decided in 2022, as not all states allow statewide ballot measure elections in odd-numbered years, but it is still the highest for an odd-numbered-year election since 2007, according to Ballotpedia. While much could be written about any one of these measures, this section focuses on those that fall into one of three democracy-related categories: voting rights, election administration, and direct democracy.
Voters in Maine rejected a repeal of language limiting the right to vote.
State constitutions, unlike their federal counterpart, expressly confer the right to vote, setting voter qualifications and often furnishing additional protections for the right. A result of this is that legislators and citizens alike often rely upon direct democracy to expand or limit voting rights in their states.
A 2023 ballot measure in Maine illustrated this trend. There, voters rejected a legislatively referred amendment that sought to repeal an existing constitutional provision that excepts “persons under guardianship for reasons of mental illness” from the right to vote. Importantly, Mainers under guardianship can vote, despite the ballot measure’s defeat. This is because a federal court declared the constitutional provision unconstitutional in 2001, permanently blocking its enforcement ever since. (In fact, Maine and Vermont are the only two states that do not restrict citizens’ right to vote in some manner.) Proponents of the ballot measure had wanted to remove the provision from the constitution, calling the language antiquated and legally unenforceable. Although unsuccessful, the ballot measure highlighted the fact that over half the states have constitutional provisions that deny the right to vote to people with developmental disabilities, often using language that disability rights advocates say reflects outdated ways of thinking about people with such disabilities.
Voters approved election and campaign funding restrictions in Louisiana and Maine.
Direct democracy is also often used to address matters related to the conduct of federal, state, and local elections. In 2023, there were two notable measures addressing election issues, one that imposed restrictions on the funding of elections and another that imposed restrictions on the funding of campaigns.
In Louisiana, voters approved a legislatively referred constitutional amendment that prohibits private or foreign money from being used to conduct elections, unless expressly authorized by state law. Similar bans have been enacted around the country, mostly in Republican-controlled states, though Louisiana became the first to place such a ban in the state constitution—a maneuver intended to circumvent a veto from the state’s Democratic governor. These bans followed the 2020 election, where a charity tied to Facebook/Meta founder Mark Zuckerberg donated several hundred million dollars to local election offices to cover unforeseen pandemic-related election expenses. The grants, dubbed “Zuckerbucks” or “Zuck Bucks,” provoked ire among some conservatives who accused the charity of trying to increase Democratic turnout, sparking a trend to ban outside funding of election administration. (The Federal Elections Commission unanimously dismissed multiple complaints against Mark Zuckerberg and his wife, Priscilla Chan, finding “no reason to believe” that the donations were coordinated with any candidates or political committees or were intended to influence election results, and courts elsewhere upheld the legality of the grants.) While some election experts share reservations about private funding of elections, they also note that U.S. elections are “hazardously underfunded” and the bans may, therefore, threaten election security rather than protect it. In this vein, Michigan voters approved in 2022 an initiated constitutional amendment that, among other provisions, allows election officials to accept charitable donations so long as the donations are disclosed. As discussed below, however, at least one more state is considering a constitutional amendment similar to the one Louisianans approved.
Meanwhile, in Maine, voters approved an initiated statute that prohibits foreign spending in state elections. While federal law already bans most foreign spending in federal, state, and local elections, this measure introduces a state-level enforcement mechanism and also extends its prohibition to ballot measure elections, which are not covered by the federal prohibition. The measure passed by an overwhelming 86-14 margin, but three separate federal lawsuits were filed shortly after the election challenging different aspects of the measure. In one, a media group is challenging a provision that requires news outlets to establish policies to ensure that they do not run ads paid for by foreign entities. In the other two, private utility companies, which are owned in part by foreign governmental entities and are therefore covered by the ban, are challenging the ban as a violation of their political speech rights. It remains to be seen how the challenges will unfold.
Voters reject major limits on direct democracy rights in Ohio but approve less restrictive regulations in Maine.
Statewide ballot measures also often concern the right to engage in direct democracy itself, with some measures proposing dramatic changes while others are more innocuous. Voters in Ohio and Maine weighed in on two such measures in 2023.
In Ohio, voters rejected a legislatively referred amendment that would have dramatically limited the ability of Ohioans to engage in direct democracy in the future. The measure proposed increasing the signature-gathering requirement for initiative petitions to mandate a minimum number of signatures from each of the state’s 88 counties and raising the voter-approval threshold for future initiatives from a simple majority to 60%. (Similar supermajority proposals were defeated in 2022 in South Dakota and Arkansas, though voters in Arizona approved a narrower version applicable only to future tax approvals). The measure’s proponents initially denied that it was intended to thwart a then-nascent abortion rights initiative, but they later admitted that it was intended to do just that. To get ahead of the abortion rights initiative, which could not go on the ballot until November, the state legislature called an unusual August special election for the procedural measure—a timing maneuver that was narrowly upheld by the state supreme court. Ohioans, however, rejected the proposal by a 57-43 margin and then went on to approve the abortion rights initiative by a nearly identical margin.
In Maine, voters weighed in on two less controversial changes to their state’s direct democracy process. First, Mainers approved a legislatively referred amendment to increase the amount of time officials and courts have to verify initiative petitions without affecting citizens’ ability to file initiatives. This change was prompted by the Maine Secretary of State’s experience during the 2022 election cycle, when the constitutional deadlines then in place required her office to review two initiative petitions in the busy run-up to the general election. Second, Mainers rejected a separate legislatively referred amendment that would have removed language in the constitution that requires initiative petition circulators to be state residents. As a practical matter, however, the rejection of this measure is inconsequential, as the residency requirement was declared unconstitutional by a federal court in 2020 and has not been enforced since.
What to Expect in 2024
The 2024 presidential election cycle promises to draw a significant number of legislatively referred and initiated ballot measures as proponents seek to capitalize on, and even encourage, increased voter turnout. Although a full picture will not emerge until later in the year, several measures have already been certified for placement on the 2024 ballot, and a significant number of initiative campaigns have announced plans for the year. Focusing on the proposals related to voting rights, election administration, and direct democracy, this section explores the democracy-related measures that will or may be on the ballot this year.
Voters will be asked to expand or, in some instances, limit voting rights.
Voting rights will also be on the ballot in several states as three measures have already been certified while initiative campaigns for several more have been announced. In Connecticut, voters will decide whether to allow no-excuse absentee voting after having previously rejected a similar but broader proposal in 2014. Voters in Iowa and Wisconsin will consider legislatively referred amendments to prohibit non-citizens from voting in state and local elections; similar measures were recently approved in Alabama (2020), Colorado (2020), Florida (2020), Louisiana (2022), North Dakota (2018), and Ohio (2022), as a reaction to a few localities allowing non-citizens to vote in local elections.
In addition to the legislatively referred measures certified in Connecticut, Iowa, and Wisconsin, several initiative campaigns concerning voting rights have been announced. In Florida, for instance, there is an initiative campaign underway to repeal an existing constitutional provision that disenfranchises felons, potentially resolving a years-long conflict in which the state legislature has sought to block implementation of a prior voter-approved ballot measure intended to restore voting rights for ex-felons. In Ohio, there is a proposed initiated constitutional amendment that would expand voting rights in the state, by superseding the state’s strict voter photo ID requirement and allowing both same-day and automatic voter registration, among other changes. The Ohio initiative also notably proposes to repeal language in the state constitution that disenfranchises “idiots” and “insane persons,” similar to the 2023 ballot measure in Maine that sought to repeal language disenfranchising persons under guardianship. Meanwhile, in Nevada, an initiative campaign is underway to require voters to provide photo ID. Similar proposals have been mostly approved since 2010 but have seen resistance in swing states like Arizona, Michigan, and Minnesota, as we have previously noted.
Voters in a number of states may have the opportunity to significantly overhaul the way elections are run in their states.
There are also a number of ballot measures related to the structure and administration of elections certified or planned for 2024.
Several proposals to overhaul states’ primary and general elections systems have either been announced or certified for placement on the ballot. In Nevada, for instance, voters will weigh in for a second time on an initiated constitutional amendment to establish both an open top-five system for primary elections and ranked choice voting for general elections. Nevadans approved this very question in 2022, but the state constitution requires voter approval at two successive general elections to ratify the amendment. Oregon voters will similarly decide whether to approve a legislatively referred constitutional amendment to adopt ranked choice voting for state and federal elections. And reports indicate that initiative campaigns to propose similar reforms are underway in Arizona, Colorado, Florida, Missouri, Montana, and South Dakota, while others in Alaska and North Dakota are considering repealing or blocking similar reforms. (The North Dakota proposal includes a host of other changes, too, including prohibiting early voting, prohibiting, the use of voting machines, and requiring ballots to be counted by hand.)
Voters in Wisconsin will decide at an April election whether to approve a legislatively referred constitutional amendment that would prohibit officials from accepting or using private donations to administer any election. This measure is similar to the 2023 measure approved in Louisiana, except that while the Louisiana measure allows the legislature to permit private donations, the Wisconsin measure would not. In a separate question submitted with the proposed private donation ban, Wisconsin voters will also decide whether to prohibit “any individual other than an election official designated by law from performing any task in the conduct of any primary, election, or referendum.”
There may also be initiated proposals to reform states’ redistricting processes. None have been certified for placement on the ballot, yet, but petition campaigns are underway in Ohio and Nevada to adopt independent, citizen-led redistricting commissions similar to those used in Arizona, Colorado, Michigan, and a few other states.
Voters will decide whether to limit or further their direct democracy rights.
Continuing a trend seen in recent years, voters can also expect to see ballot measures proposing restrictions to or expansions of their own rights to engage in direct democracy.
A handful of legislatively referred ballot measures to limit the initiative process have already been certified for placement on the ballot this year. In North Dakota, for instance, the state legislature referred a constitutional amendment for placement on the general election ballot that would impose on ballot measures a single-subject requirement, an increased signature-gathering requirement, and, most drastically, a requirement to receive voter approval at both a primary election and a successive general election. Arizona provides another example. There, the state legislature referred a constitutional amendment for placement on the general election ballot to increase the initiative petition signature-gathering requirement by mandating a minimum number of signatures from each of the state’s 60 legislative districts. Legislatures in other states with the initiative, like Missouri, are reportedly considering similar restrictions.
At the same time, there are also several proposals to protect or expand direct democracy rights. In California, for instance, the legislature referred a constitutional amendment that would require any future initiative seeking to increase the voter approval threshold for ballot measures to be approved by the same higher threshold that it proposes. (A similar provision exists in the Oregon Constitution.) In South Dakota, there is an initiative campaign underway to prohibit the state legislature from amending or repealing any ballot measure approved by the voters for seven years. And campaigns to allow voters to sign initiative petitions electronically have been announced in California, Florida, and Missouri—a change temporarily adopted by some states during the COVID-19 pandemic but that has been adopted permanently only in Utah.
It is likely that some of the initiative campaigns highlighted above will not make the ballot, and it is also possible that other proposals—initiated or proposed by state legislatures—will emerge as the year goes on. Still, the measures discussed in this report suggest that there will continue to be a high level of interest in direct democracy in 2024, and that voters will likewise continue to play big roles in shaping their states’ democratic systems.