There’s nothing startling about a red state tinkering with labor laws. But this one is different. The minimum wage and sick leave provisions were passed as an initiative by the state’s electorate last November with 58 percent of the vote. The state Supreme Court upheld it. Republican lawmakers simply wiped it off the books.
They had the authority to do that. The initiative, Proposition A, was enacted as a statute, not a constitutional amendment, so it can be overridden by another statute. A change in the state constitution would be required to make it permanent.
So it’s legal. But there’s a moral question here. The state’s voters decided by a wide margin to enhance sick leave and minimum-wage standards. The legislature and the governor ignored them. Is that a fair use of governmental power?
The promoters of the initiative certainly don’t think so. What the voters did ‘‘should not have been messed with by politicians,” one of them declared. A leading Republican legislator, Brian Seitz, countered that “we’ve been elected in a representative republic to see to the needs of the people and that’s exactly what we’re doing.” Democrats didn’t see it that way, to put it mildly. The state House's Democratic leader, Ashley Aune, said the governor’s action “demonstrates the absolute disdain Republicans have for working Missourians.” Sponsors of the repealed initiative are promoting a new constitutional amendment that would make overriding an enacted ballot measure illegal.
This sort of thing has been going on for a long time in Missouri. Back in 1999, voters rejected a ballot measure that would have legalized the concealed carrying of firearms. The legislature passed it anyway. In 2010, the voters passed the so-called “puppy mill” initiative, regulating living conditions for dogs in breeding kennels. The legislature and the governor wiped out most of that as well. This year, lawmakers acted to put a referendum on next year's ballot to undo an abortion rights measure enacted by voters last fall.
WHY MISSOURI HAS BECOME THE NATIONAL CAPITAL of ballot-measure repeal is a hard question to answer. It’s not the only state that does this, merely the one that seems to do it the most. While Missourians argue about Proposition A, Utah is in conflict over the Legislature’s right to repeal a redistricting initiative.
Back in 2018, the Utah electorate passed Proposition 4, establishing an independent redistricting commission to bring an end to the partisanship pervading the map-drawing process. Two years later, the Legislature repealed most of the initiative. But the Utah Supreme Court ruled that what the Legislature had done was against the law. The Senate president complained that Utah had been victimized by ballot measures promoted and financed by “unelected special interest groups outside Utah.” He said it was an effort to “override our republic.” So the legislators had to try another tactic.
They went back and proposed a constitutional amendment giving them the explicit right to overrule voter initiatives. The courts didn’t buy that one either. The Legislature switched tactics, passing bills that wouldn’t allow repeal of initiatives but would make it more difficult for citizens to get them on the ballot and require higher voter margins for passage of those involving tax increases that do make it to the ballot.
At the moment, more and more legislatures are using this tactic: Don’t try to wipe out initiatives, just make it harder to bring them to a vote. Arkansas is a good example. It is embroiled in a constitutional fight over legislation imposing a reading-level threshold for ballot measures and another one requiring future initiative proposals to contain signatures from 50 of the state’s 75 counties.
A variety of good-government activist groups, led by the League of Women Voters, have gone to court to challenge these provisions, among others. Late last month, a federal judge ruled that the groups had a legal right to intervene in the case. The result is still up in the air.
A LOOK AT ACTIVITY OVER A LONGER PERIOD reveals that a fair number of successful ballot measures have been altered by legislatures, not as much through repeal as by changing legal language. In 2018, for example, voters in Utah chose to set the threshold for receiving Medicaid benefits at 138 percent of the federal poverty level. The Legislature reduced the floor to 100 percent of poverty. In 2023, Ohio voters passed an initiative legalizing the use of recreational marijuana, with the money collected from its sales to be used for combating “social and economic disadvantage.” The legislature let it stand, but diverted the revenue from marijuana sales to law enforcement agencies.
Anne Whitesell, a political scientist at Miami University of Ohio, has found that between 2010 and 2015, 21 percent of successful ballot measures were changed by legislatures. Between 2016 and 2018, she found, the number had risen to 36 percent. In South Dakota, for example, voters passed an initiative in 2016 creating an independent state ethics commission. The legislature took exception and voided it the following year. In 2018, voters in the District of Columbia raised the minimum wage for workers receiving tips. The City Council repealed it three months later. (The voters approved it again in 2022 by an even larger margin, and the council voted last month to partially repeal the newer measure.)
In recent years state courts have tended to side with the voters on the question of legislative repeal. The Utah Supreme Court’s decision last year to void the Legislature’s measure protecting gerrymandering was by unanimous vote. Also last year, the Michigan Supreme Court ruled in a 4-3 decision that the Legislature’s “adopt and amend” rule dealing with initiatives violated the state constitution. That left repeal supporters arguing that if they could invalidate a law they passed themselves, why couldn’t they repeal an enactment by voters?
I CAN’T DENY that there are some legitimate reasons for the hostility to the initiative process. Initiatives were enacted in many states early in the 20th century to give ordinary voters a chance to speak up against legislatures controlled by railroads and other corporate interests. California enshrined the initiative process in its constitution in 1911. Other states made similar moves. By 1918, 24 states had adopted some form of initiative or referendum. A significant number of reform-minded laws were enacted through the initiative process.
But over the decades, the process has ceased to work the way its original promoters envisioned. Ballot-measure contests have often become wars between well-financed corporate and labor interests seeking to influence the outcome through lavish media campaigns. In 2020, when the California Legislature considered granting ride-share workers employment benefits, the ride-share companies, led by Uber and Lyft, spent more than $200 million on a successful ballot measure to prevent it. Other states have had similar experiences.
It’s no surprise that critics of the process have ridiculed the traditional description of initiatives as “grassroots democracy” by labelling them as “Astroturf democracy”— meaning an artificially planted political enterprise. When they denounce high-profile, hugely expensive ballot-measure campaigns bankrolled by out-of-state interests, they have a point. When the Utah Senate president complained about the influence of “unelected special interest groups,” he wasn’t out of line.
The initiative process in many states is in need of reform. Finding ways to keep the action on ballot measures centered within the political and financial confines of the state where they are appearing isn’t such a bad idea. Still, that doesn’t give legislators of either party the moral right to simply erase them from the books or cripple them by amendment. Initiatives remain a legitimate, if flawed, element of the American democratic process. That’s true everywhere they exist — even in Missouri.
Governing’s opinion columns reflect the views of their authors and not necessarily those of Governing’s editors or management.
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