The option to bypass the legislature, which allowed for marijuana legalization and minimum wage increases, is under threat

In November, voters in Arizona will decide whether to limit citizens’ ability to get measures on the ballot, a change that could severely curtail direct democracy.

Three upcoming measures, referred to the ballot by Republican state lawmakers, would require a supermajority to approve any taxes on the ballot, limit initiatives to one topic and allow lawmakers to alter ballot measures if any language is illegal or unconstitutional.

In total, the measures represent a final step in the Arizona legislature’s years-long attempt to hamper citizen initiatives, which allow voters to circumvent the legislature altogether by collecting signatures from their fellow residents on issues to send to the ballot. With Republicans in control of the legislature, progressive causes — like minimum wage increases in 2016 and marijuana legalization in 2020 — have used the initiative process to bypass lawmakers in recent years.

“We’ve seen, since minimum wage passed, a very deliberate effort to make direct democracy more difficult and more expensive. This is the knockout punch,” said Stacy Pearson, a spokesperson for Will of the People Arizona, a campaign against the three measures. “So we’re in the last round of the boxing match. And this would be the end.”

The citizens’ initiative process is enshrined in Arizona’s constitution, and previously led to the state implementing mandatory sick time and a higher minimum wage , legalizing both medical and recreational marijuana and banning indoor smoking.

But it’s become costly and legally complicated to run measures here in the past decade, as stricter laws pushed by a Republican legislature threaten to derail citizen-led campaigns. It now costs as much as $10m to collect signatures, not including the additional millions needed to withstand court challenges and front a successful campaign to win.

The new measures have support not only from Republican-elected officials, but heavy hitters like the Arizona chamber of commerce and industry and the state GOP.

They join a national trend of GOP-initiated attempts to curtail citizen-led ballot measures. In Arkansas, voters will weigh a measure to require a 60% majority for most ballot measures. And in South Dakota in June, voters rejected a 60% threshold for tax measures, which would have made it more difficult for voters to approve Medicaid expansion at the ballot this November.

“What we’re seeing is red states trying to curtail this tool that citizens have used really successfully to move policies that are otherwise stuck for, usually, political reasons,” said Hannah Ledford, deputy executive director and campaigns director for the Fairness Project.

Republicans are ‘watering down their own rights’

Opponents to the three measures caution that the groups that now want to hinder initiatives may have to use the process someday too, if the Republicans lose control of the governor’s office and legislature – a prospect that’s increasingly likely as the electorate moves closer to the center. Over the years, the pendulum on which party uses the ballot process has swung back and forth multiple times.

“What they’re really doing is, they’re watering down their own rights and eventually, it all comes around,” said Drew Chavez, the owner of Arizona-based signature-gathering firm Petition Partners. “They’re going to need the process, and what’s gonna happen then?”

Danny Seiden, president and CEO of the Arizona chamber of commerce and industry, said the chamber’s position on these measures would be the same regardless of whether it had strong relationships with lawmakers and the governor, as it does now.

“We believe that the best mode of government is to have a higher threshold to pass a tax increase or to require single subjects. I think we’re always going to think that,” Seiden said. “But we could be in a position of needing to use the referral and ballot initiative process – but if we do, I’d be grateful for [it] being as simple and transparent as possible.”

The three proposals from Republican lawmakers would hinder citizen initiatives in different ways, each of which will affect whether groups will decide to run measures in the first place.

Perhaps the most major change, and one similar to the measure that recently failed in South Dakota, is contained in Proposition 132, which would require 60% of voters in order to pass a ballot measure that “approves a tax”.

Arizona state representative Tim Dunn, the sponsor of the referral, said it was inspired by “outside influences” trying to raise taxes at the ballot box. Lawmakers need a two-thirds vote to pass tax increases, so this measure aligns initiatives with that requirement, he said. He initially wanted all ballot measures to meet a supermajority threshold, but then changed it to tax-related measures, he told Arizona PBS during a debate on the measure.

“Arizona is a Petri dish. We have all this outside money coming in,” he said.

Under the current law, Prop 132 will only need a simple majority of voters to approve it to become law.

But opponents of the measure and people who have run initiatives say they think the measure could apply more broadly. Ballot measures have to be revenue-neutral, and they typically include taxes or fees to fund themselves to ensure they don’t cost the state money.

Marijuana legalization, which included taxes on products, received 60% of the vote in November 2020. But it’s not unusual for measures to pass with just a few percentage points.

Arizona is ‘one of the hardest states’ for ballot initiatives

Another referral, Proposition 129, calls for ballot measures to focus on a single subject, which must be reflected in the title of the measure.

Lawmakers must follow a single-subject rule. The state budget process, which frequently jammed tons of unrelated provisions into budget bills, was recently struck down by the Arizona supreme court for violating single-subject and title laws. The sponsor of the referral, Arizona Republican representative John Kavanagh, said an initiative could still have many provisions, as long as they all relate directly to the subject and title of the measure.

“So the idea is somebody couldn’t have, in the same measure, some sorely needed roads, but also include [a] provision either for or against teaching critical race theory, because they’re different subject areas,” Kavanagh said.

Pearson, who opposes the campaign, said their side believes measures that modify many parts of law – like the marijuana measure that included taxes and expungement, or an indoor smoking ban that affected many types of settings – could be removed from the ballot.

The third proposal, Proposition 128, relates to measures that contain “illegal or unconstitutional language”, as determined by the courts. If measures have such language, lawmakers can amend or repeal it – something they cannot do now, because the Voter Protection Act prevents lawmakers from tinkering with voter-approved laws unless they have a three-fourths majority and further the intent of the measure.

It’s also become more common in recent years for citizen initiatives to face multiple court challenges over their wording and signatures before voters ever see them on the ballot. The implementation of a single-subject rule likely would factor into these court cases.

The Arizona supreme court, which expanded to seven justices in 2016, all of whom are Republicans, recently aided in striking down a tax on wealthy people to fund schools and prevented a broad progressive election measure from reaching the ballot.

“Arizona is already one of the hardest states in the country to run ballot initiatives,” Ledford said. “And I think adding this extra layer of uncertainty around how many votes do you need to win, what subjects can it encompass, and will the legislature undo it immediately on the back end, I think just adds an extra layer of risk – and certainly – cost.”

Chavez, from the signature-gathering firm, thinks about 80% of those who would want to run a measure wouldn’t be able to anymore. Pearson thinks a funder would need a “limitless budget and a limitless appetite for risk with this court”.

Dunn, the sponsor of the supermajority referral, simply said: “If it’s harder, it’s harder.”

Those opposed to the three measures believe voters will see through the attempt to limit their own power and reject all three.

“They seem to have done a really good job in putting together progressives on the merits and libertarians on the government overreach, which – when you combine that – we have enough votes to defeat these,” Pearson said.