The Washington PostDemocracy Dies in Darkness

Abortion initiatives expose the promise and peril of direct democracy

Ballot initiatives, referendums and other forms of direct democracy have a mixed track record of empowering the people.

Elder Leslie Mathews, an organizer with Michigan United, joins leaders of the Reproductive Freedom for All campaign as they speak to supporters on July 11 in Lansing, Mich., after turning in 753,759 signatures to qualify for Michigan's November ballot. (Joey Cappelletti/AP)
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An earlier version of this piece labeled the ballot initiative in Florida in 2018 that restored felon voting rights "Prop. 4." In reality, it was Amendment 4 reflecting that the ballot initiative changed the Florida Constitution.

Seemingly endless campaign ads make it clear: Abortion will be on the ballot this November. This is true in a general sense, as candidates spar over the issue. But in some states, notably Michigan, abortion also appears in the form of a popularly initiated proposed constitutional amendment. There it will join proposed amendments on term limits and early voting.

In many states, including Michigan, ballot measures have addressed a multitude of issues: the minimum wage, funding for education, expanding eligibility for Medicare and legalizing marijuana. But just winning the vote is only part of the fight. In 2018, 65 percent of Florida voters supported Amendment 4 to restore voting rights to felons, but delays, confusion and restrictive policies on the payment of fines have blunted the measure’s true impact. “Letting the people speak” turns out to be no simple matter.

The stakes are evident in those ballot proposals that concern direct democracy itself. Arizona voters will weigh proposals to expand the legislature’s ability to repeal or amend approved ballot propositions. As one opponent argued, because “some politicians and wealthy corporations don’t like the decisions” the voters have made, “they are trying to rewrite the rules to get their way no matter what the majority wants.”

These fights are the latest battles in a deeper struggle over the meaning of popular sovereignty. The Founders came down squarely in the middle — or perhaps in a muddle. The Constitution included elements of both direct and indirect representation (the House and the Senate, respectively), but dictated that ratification would be done not by state legislatures but by popular conventions embodying “the only Source of just authority — the People.” But if the people were to rule, should that rule be direct or indirect? While some argue that this can be reduced to a sharp choice between “a democracy or a republic,” for the past two centuries the answer embodied in our political institutions has been both.

This built-in ambivalence has fueled waves of conflict, change and invention, including the mobilizations that established what we now know as direct democracy. By the late 19th century, there was a chorus of complaints that, purportedly, democratic institutions were no longer accountable to citizens. Repeatedly frustrated in efforts to advance causes ranging from workers’ protections to women’s suffrage, advocates advanced their case for new methods that would allow “the people” to speak directly in political decisions and protect the expanding powers of state government from corruption and capture.

These activists saw themselves at war against legislatures and political parties, with direct democracy as their best weapon. Ballot initiatives enabled citizens to put forward their own propositions, undercutting the ability of legislators, lobbyists, donors and party bosses to keep issues off the agenda. The referendum, which might be required by legislators or demanded by voters, represented a check on the power of elected officials. The direct primary and the recall gave voters — rather than parties — the power to select and discipline their representatives. One final measure, the direct election of senators by the voters (rather than selection by the legislature) was ratified in 1913 as the 17th Amendment to the U.S. Constitution. As one proponent rejoiced, “The Initiative, Referendum and the Recall are the people’s weapons!”

Calls for direct democracy were particularly intense in the Western states and parts of the Midwest. In 1898, South Dakota was the first to adopt the initiative and referendum (although initiatives to amend the state constitution would not be added for more than 70 years). Over the next two decades, nearly 20 other states followed suit, embracing some or all of the elements of direct democracy.

Oregon, above all, was home to the People’s Power League, which secured passage of the trio of initiative, referendum and recall. At the head of this movement was William S. U’Ren, who understood these efforts as a path toward fundamentally limiting the power of legislatures and their insulation from popular preferences and demands. In the East, liberal elites and intellectuals adopted a moderated stance in which direct democracy figured as a seldom-to-be-used curb on elected officials rather than a meaningful alternative to legislative efforts themselves.

These new weapons enabled Americans to fight the interests they saw as subjugating them. In 1913, the president of the Washington State Federation of Labor declared that citizens had to be “ready to do battle” against lobbies, legislatures and parties to secure social and industrial justice. Their battle plan? To take advantage of Washington, Oregon and California adopting “the Initiative, Referendum, Recall and Direct Primary,” which could be “methods of warfare to accomplish the actual will of a majority of our people.”

Over the long run, this optimism was not entirely warranted. Even as these new methods were adopted, critics charged that these “wicked innovations” would substitute the will of the mob for the reasoned deliberations of elected representatives. Whether backed by popular opinion or corporate initiative, the growing number of successful initiatives constrained the space for legislatures to act. Critics from both the left and right also complained that direct democracy drew the courts more deeply into electoral politics as they were called on to determine whether ballot proposals had met the requirements of state law — and then to interpret sometimes vague language.

Where popular movements had once provided the machinery for collecting signatures in support of initiatives, candidates and corporations cultivated a new industry of political consulting to support ballot proposals that advanced their own interests — often cloaked in legal language that would mystify many voters. California’s Proposition 13, passed in 1978 to limit increases in property taxes, exemplified how individual political entrepreneurs could advance new policy through ballot proposals that, in the case of Proposition 13, would profoundly alter the state’s budgetary politics for decades to come.

Complex issues such as the regulation of auto insurance were targeted by competing initiatives in a single election. If more than one proposal passed, the measure receiving the most votes would become law. Insurance companies, trial lawyers and consumer groups all channeled vast sums into the effort to “fix” the initiative, echoing the efforts of the “Interests” of an earlier era to “fix” the legislatures and city councils.

In this high-stakes, no-holds-barred warfare over direct democracy, opposing sides search for legal technicalities to knock initiatives off the ballot. For example, in Michigan, the “Reproductive Freedom for All” measure only made it onto the ballot in 2022 after the state denied a challenge based on inappropriate spacing on printed petitions, which threatened to upend the principle of popular sovereignty.

Beyond such battles over technicalities, the success of activists in getting measures on the ballot and passing them has fueled efforts to make it harder to do so. This fall’s ballot in Arizona is just one example of these countermeasures. In Arkansas, legislators have put forward a proposal that would require a 60 percent supermajority to approve ballot measures. South Dakota voters rejected a similar measure over the summer, which would have imposed a supermajority requirement for initiatives related to taxes and spending. That proposal was designed to make it harder to expand Medicaid eligibility.

These ongoing conflicts over the power and scope of direct democracy remind us that political innovations — including direct democracy as “the people’s weapons” — may be advanced for one cause only to be borrowed, modified and used to great effect by other interests. Speaking at Gettysburg in November 1863, President Abraham Lincoln assured his audience “that government of the people, by the people, for the people, shall not perish from the Earth.” But in the same breath, he described this political system as an “unfinished work.” With election season underway, direct democracy is very much in play, both as a vehicle for policy issues and as an effective vehicle for the people to speak. This reminds us that Lincoln’s words remain prophetic as our political system remains an “unfinished work.”