Last Line of Defense

Why Ballot Measures Are Democracy’s Last Line of Defense

Increasingly, citizens are turning to direct democracy to restore rights stripped away by gerrymandered legislatures and right-wing courts.

Ari Berman

In June, Ohio held a special election to fill an open congressional seat in a district that voted 72 percent for Donald Trump in 2020.

On Election Day, former Ohio Supreme Court Justice Maureen O’Connor drove the length of the sprawling 200-mile district, which Republicans drew two years ago to dilute the influence of Democratic voters and boost their own power. Crisscrossing 11 counties and four media markets, she started at the fairgrounds in rural Marietta, on the West Virginia border; followed the Ohio River through the foothills of the Appalachian Mountains; stopped in Steubenville, near Pennsylvania; and ended at a polling site in urban Youngstown.

Although Democrats performed much better than expected, the outcome of the race was never in doubt. GOP state Sen. Michael Rulli, a grocery store owner who called himself “the Trump candidate,” won easily. “This was drawn to make the 6th Congressional District as favorable to a Republican as possible,” a dismayed O’Connor said after. “That’s the definition of gerrymandering.”

O’Connor, 73, has short gray hair and an affinity for pearls, with the tough, no-nonsense demeanor of a former prosecutor. She’s been a Republican for four decades, serving as the first female chief justice in Ohio and the longest-tenured female statewide politician. But, now retired, she was traveling the state like a Johnny Appleseed for democracy, rallying voters against gerrymandering and taking on leaders of her own party, who have aggressively used the tactic to give Republicans lopsided majorities in the legislature and the state’s US House delegation. (Nationally, gerrymandering gives Republicans an advantage of 16 House seats, according a new report by the Brennan Center for Justice.) She was visiting the 6th District to collect signatures for an initiative on the November ballot that would create a citizens redistricting commission to draw district maps free from political interference. “The system doesn’t work because of the involvement of the politicians,” O’Connor told me. “Let’s get politicians out of the mix and return that power, like it was at the beginning of the country, to ‘we the people.’”

Half of all states allow citizens to place constitutional amendments and other initiatives on the ballot, and the importance of direct democracy extends well beyond Ohio. The initiative and referendum process originated at the turn of the 20th century, when Jim Crow was firmly entrenched in the South and robber barons held sway over much of the North and West, leading to growing complaints that democratic institutions were no longer responsive to popular demands. “I believe in the initiative and the referendum, which should be used not to destroy representative government, but to correct it whenever it becomes misrepresentative,” former President Teddy Roosevelt said when he visited Columbus, Ohio, in 1912 to endorse an effort to amend the state’s constitution through ballot initiatives.

Direct democracy does not always lead to good public policy—see Brexit, for example. Special interests and ideologues have often hijacked the ballot initiative process, putting complicated issues before voters that could be better handled by the legislature. But in hyper-gerrymandered states like Ohio, the only way to ensure that the will of the majority is followed is to override representative democracy and go directly to the people. This strategy has taken on renewed urgency in response to recent US Supreme Court decisions taking away fundamental rights, from the gutting of the Voting Rights Act to the overturning of Roe v. Wade. These initiatives can garner support across party lines in a way that is otherwise impossible in a highly polarized partisan political climate.

Since the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, seven states have voted directly on abortion, and in all seven—red and blue alike—abortion-rights advocates have won. This year, voters in 10 states, a record number, will vote on whether to enshrine protections for reproductive rights, including in battlegrounds such as Arizona, Florida, Montana, and Nevada. “Dobbs gave people a real clear example of rights that we thought were guaranteed not being secure,” says Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center (BISC), a progressive advocacy group. “Right now, in a number of states, this is the only way to protect reproductive rights.”

This election cycle, voters will weigh in on 153 statewide measures, including 57 initiated by citizens, according to BISC. In addition to fighting gerrymandering and protecting reproductive rights, they will have the opportunity to adopt ranked-choice voting (Colorado, Idaho, Nevada, Oregon), enshrine no-excuse absentee voting (Connecticut), protect marriage equality (California, Colorado, Hawaii), and raise the minimum wage (Alaska, California, Massachusetts, Missouri).

Not all these measures will lead to progressive policies. State-level Republicans are also using the initiative process to advance their own priorities, such as tougher immigration laws, private school vouchers, and new voting restrictions. Meanwhile, they are also pushing proposals that would make it harder for citizen-led groups to get future initiatives on the ballot.

At a time when so much attention is focused on the presidential race, what happens at the frequently overlooked bottom of the ballot will be just as consequential. If Trump regains power, states will become the last line of defense for protecting fundamental rights. And if Kamala Harris wins and Democrats recapture both houses of Congress, the states can once again become “laboratories of democracy,” in the words of former Supreme Court Justice Louis Brandeis, showing how to regain freedoms that have been ripped away by Republicans in Washington and a regressive Supreme Court.

“This is part of a larger story of whether we truly have a representative democracy and how the rules are being written in a way where people don’t have as much of a say,” Fields Figueredo says. “And so the response has been people turning to the ballot measure process where they can to make decisions that govern their lives.”

The fight against gerrymandering is personal for O’Connor.

In 2015, 71 percent of Ohio voters approved the creation of a redistricting commission that was supposed to stop gerrymandering in the state. It included the state’s most powerful politicians—the governor, secretary of state, auditor, and leaders of the state legislature—and tasked them with ending “the partisan process” for drawing state legislative maps. Three years later, an even larger percentage of Ohio voters approved a similar initiative applying to congressional districts.

But when Republicans on the commission, which had a 5–2 GOP majority, drew new legislative maps after the 2020 census, they flagrantly ignored this assignment. The lines they approved gave Republicans a supermajority in both chambers of the legislature—67 percent of seats in the state House and 69 percent in the state Senate. GOP members of the commission laughably asserted that because Republicans had won 13 of the past 16 statewide elections, they were entitled to up to 81 percent of legislative seats, even though Republican candidates hadn’t gotten anywhere close to that percentage of votes statewide.

Under O’Connor’s leadership, the Ohio Supreme Court did not buy that argument. By a 4–3 vote, it struck down the maps in January 2022; O’Connor joined her Democratic colleagues to cast the deciding vote.

But Republicans on the redistricting commission, instead of following the court’s orders, kept defying them—not once, but seven times. Every time the court struck down a gerrymandered map, Republicans passed a new one, until a separate federal court stepped in and said there was no time to rectify the gerrymandering before the 2022 election, forcing Ohioans to vote in districts that had been deemed illegal over and over. With a legislative supermajority, “we can kind of do what we want,” bragged commission member Matt Huffman, the Republican state Senate president. And they did, passing one extreme policy after another, from a six-week abortion ban to a bill allowing Ohioans to carry a concealed handgun practically anywhere without a permit or background check to stripping the Republican governor and his health director of the authority to manage the Covid-19 pandemic. Some far-right members of the legislature even floated impeaching O’Connor.

O’Connor grew up as one of eight kids in an Irish Catholic family in suburban Cleveland and rose through the ranks of Ohio politics, from county prosecutor to lieutenant governor, before joining the court in 2002 and becoming chief justice in 2011. She was known for her blunt manner and maverick streak, bucking her party on issues like abortion and criminal justice reform. “When I first met her, I was a bit scared of her, too,” joked former Ohio Supreme Court Justice Yvette McGee Brown, “and the reputation is well-deserved.” In a concurring opinion in the gerrymandering case, O’Connor made clear her disappointment with the GOP-led redistricting commission and outlined how Ohioans could reform the process.

“Having now seen first-hand that the current Ohio Redistricting Commission—comprised of statewide elected officials and partisan legislators—is seemingly unwilling to put aside partisan concerns as directed by the people’s vote, Ohioans may opt to pursue further constitutional amendment to replace the current commission with a truly independent, nonpartisan commission that more effectively distances the redistricting process from partisan politics,” she wrote.

At the end of 2022, O’Connor was forced to retire from the court at age 71 due to term limits. A more conservative justice replaced her, shifting the court’s Republican majority well to the right and ensuring that the gerrymandered legislative maps would not be struck down again. Days after leaving the bench, O’Connor channeled her anger into action, leading a new group, Citizens Not Politicians, in a bid to create what she had called for in her opinion—a citizens redistricting commission divided equally among Democrats, Independents, and Republicans.

Citizens Not Politicians submitted 535,000 valid signatures in July to qualify for the ballot, and this November, Ohio voters could finally end gerrymandering once and for all. “This is the most important thing I’ve ever done,” O’Connor says.

Supporters of the initiative argue that it will bring Ohio’s legislature and US House delegation more in line with the rest of the state, which leans toward Trump and hometown running mate JD Vance, but is more purple than deep red, with a few Democrats, like US Sen. Sherrod Brown, still able to win statewide office.

“It would change the state in a huge way, not because it means Democrats are going to have some guaranteed majority,” says David Pepper, former chair of the Ohio Democratic Party and author of Laboratories of Autocracy: A Wake-Up Call From Behind the Lines. “What it will mean is a majority that generally leans Republican, quite close, reflecting Ohio’s closeness, but most importantly, because you have the safety valve of fair districts and competitive races, the driving force of Ohio politics will not be the extremists in the statehouse.”

The pushback against direct democracy has been just as fervent as the push for it.

In August 2023, Republicans in the Ohio Legislature forced a vote on a ballot initiative, known as Issue 1, that would have made it much harder to pass future initiatives. It called for changing the threshold for passing a ballot measure from a simple majority vote to a 60 percent supermajority, and it required organizers to gather signatures from 5 percent of voters in all of the state’s 88 counties instead of the 44 currently needed. Republicans scheduled the vote in the dead of summer, when many people were on vacation and students were out of town, to try to sneak it through with little public scrutiny.

That move was part of a larger trend. In 2017, BISC tracked 33 bills seeking to alter the ballot measure process. In 2023, lawmakers in 39 states introduced 165 bills to change the process, 76 of which sought to restrict or undermine initiatives. “After the Dobbs decision, conservatives in Republican-trifecta states have doubled down on trying to undermine the will of the people,” Fields Figueredo says.

“You put very sexy things like abortion and marijuana on the ballot, and a lot of young people come out and vote,” former Pennsylvania Republican Sen. Rick Santorum complained.

Republicans claimed the 2023 Ohio initiative was meant to stop “out-of-state special interests,” but one legislator admitted privately that it was designed to preempt passage of an abortion-rights measure that had qualified for the November 2023 ballot, as well as O’Connor’s redistricting reform effort. And, in fact, “out-of-state special interests” were the very people behind the GOP effort. The largest individual donor to the Issue 1 cause was far-right Illinois megadonor Richard Uihlein, who helped bankroll the “Save America” rally that preceded the January 6 insurrection and has funded scores of candidates and groups promoting election denialism. When the bill received a ­hearing­ in the legislature, the only person who testified in favor of it was a representative from a little-known think tank in Florida, the Foundation for Government Accountability, that received nearly $18 million from Uihlein. The foundation, which has led the behind-the-scenes push to limit direct democracy around the country, is affiliated with the State Policy Network, an alliance of conservative think tanks, and it has received more than $5 million from the dark-money network led by Federalist Society Co-Chair Leonard Leo.

The Republicans’ gambit in Ohio backfired spectacularly. The anti-initiative initiative was defeated with 57 percent of the vote, and that November, Ohioans passed new measures enshrining the right to abortion in the state constitution and legalizing recreational marijuana by similarly decisive margins. “You put very sexy things like abortion and marijuana on the ballot, and a lot of young people come out and vote,” former Pennsylvania Republican Sen. Rick Santorum complained afterward.

But the popularity of direct democracy in Ohio hasn’t stopped Republicans from continuing to try to undermine it. After the Citizens Not Politicians initiative qualified for the ballot this year, the Ohio Ballot Board, which like the redistricting commission has a Republican majority, grossly misrepresented the intention of the measure. The summary of the ballot initiative adopted by the board implied the measure would encourage partisan gerrymandering rather than curb it, claiming the initiative would “repeal constitutional protections against gerrymandering” and “manipulate the boundaries of state legislative and congressional districts to favor the two largest political parties in the state of Ohio.” Shortly thereafter, Speaker of the House Mike Johnson (R-La.) came to Ohio to raise money for the campaign working to defeat the anti-gerrymandering initiative.

Citizens Not Politicians immediately sued the ballot board, asking the Ohio Supreme Court to block the “biased, inaccurate, deceptive, and unconstitutional ballot language.” The board’s chair, GOP Secretary of State Frank LaRose, who lost the GOP primary for US Senate in 2024, is a member of the redistricting commission that repeatedly voted for the state’s gerrymandered maps and previously voiced support for impeaching O’Connor. He was also a leading proponent of the effort to make it harder to amend the Ohio Constitution, which he admitted was “100 percent about keeping a radical pro-abortion amendment out of our constitution.”

Republicans are using the initiative process to undermine voting rights in other ways, too. Republican-controlled legislatures have placed initiatives on the ballot in eight states mandating that only US citizens can vote in state elections.

“The self-dealing politicians who have rigged the legislative maps now want to rig the Nov. 5 election by illegally manipulating the ballot language,” O’Connor said in a statement at the time. On September 17, in a 4-3 decision, the conservative majority on the Ohio Supreme Court upheld the bulk of the board’s ballot summary.

That’s indicative of how Republicans across the country are responding to citizen-­initiated measures they don’t like. Take Arizona, where voters will consider an initiative that would repeal the state’s near-total abortion ban and establish a constitutional right to the procedure. The Republican-led legislature put 11 of its own initiatives on the ballot, which supporters of abortion rights call a “voter exhaustion tactic.”

Some of them are particularly egregious. After the Arizona Supreme Court reinstated an abortion ban dating back to 1864 earlier this year, abortion-rights supporters targeted two of the justices for removal at the ballot box. So the legislature placed a referendum on the ballot that would eliminate six-year terms for Supreme Court justices and allow them to serve indefinitely if they adhere to “good behavior.” It would apply retroactively to October 31, meaning that if voters decide not to retain the anti-choice justices but also approve the initiative eliminating fixed terms, the judicial election will be effectively nullified.

At the same time, Arizona Republicans are trying to impose new obstacles to getting future citizen-led initiatives on the ballot, like Ohio Republicans attempted last year, following the playbook developed by the Foundation for Government Accountability and the right’s dark-money network. Currently, voters must collect signatures equal to 10 or 15 percent of the vote in the last gubernatorial election to place a statute or constitutional amendment on the ballot. But another referendum advanced by the legislature would require organizers to collect that number of signatures in all the state’s 30 legislative districts, essentially allowing voters in just one district to veto the wishes of the other 29.

A similar law passed in Arkansas last year, increasing the number of counties in which initiative supporters must collect signatures from 15 to 50 of the state’s 75 counties. Voters rejected a nearly identical proposal in 2020, introduced after initiatives raising the minimum wage and legalizing medical marijuana passed over the objections of GOP lawmakers. Arkansas Republicans also blocked an initiative this year that would have overturned the state’s near-­total abortion ban, with the state Supreme Court disqualifying it from appearing on the November ballot because it said organizers did not properly submit an obscure bit of paperwork.

Utah Republicans have gone even further, asking voters to give the legislature the explicit power to undermine the will of the voters. In 2018, Utah voters, like in Ohio, passed a measure creating an independent redistricting commission to draw new legislative maps and ban partisan gerrymandering. But Utah Republicans passed a new bill that effectively repealed the initiative and drew a map that divided Salt Lake City among all four of the state’s congressional districts to prevent Democrats from winning any of them. After the Utah Supreme Court ruled in July that the legislature had violated the state constitution, Republicans authorized a new ballot initiative asking voters to grant the legislature the authority to amend or repeal citizen-led initiatives. Democratic leaders called it a “blatant power grab.”

Republicans were hoping to convince voters to side against their own interests by including a provision banning foreign entities from donating to initiative campaigns, even though legislative leaders could not cite any evidence of that occurring. But as in Ohio, the move to erode direct democracy backfired on Republicans. On September 25, the Utah Supreme Court unanimously ruled that the measure violated the state constitution and votes for it would not be counted in November.

Republicans are using the initiative process to undermine voting rights in other ways, too. Republican-controlled legislatures have placed initiatives on the ballot in eight states mandating that only US citizens can vote in state elections. The proposals, developed based on model legislation drafted by the American Legislative Exchange Council, which connects corporations with conservative state legislators, furthers Trump’s lie that noncitizens are illegally voting in US elections, and could lay the groundwork for future restrictions on ballot access.

When voters have used the initiative process to expand voting rights, Republicans have frequently gutted those efforts. The most notable instance occurred in Florida, where 65 percent of voters in 2018 approved Amendment 4, repealing one of the country’s worst felon-disenfranchisement laws, dating back to Jim Crow. But months later, the GOP-controlled legislature passed another law requiring ex-offenders to pay off all fines, fees, and restitution before casting a ballot, which prevented about 700,000 people from voting even after they had served their time. Voting-rights advocates called it a “modern-day poll tax.” In a highly publicized crackdown on voter fraud that seemed designed to have a chilling effect on voter participation, Republican Gov. Ron DeSantis’ election police force arrested 20 ex-offenders, even though some had no idea they were ineligible to vote. (More recently, the election police force has gone door to door questioning the signatures of people who supported putting an abortion­-rights referendum on the ballot.)

The Amendment 4 fight showed how passing a ballot measure is one thing, but successfully implementing it is another struggle altogether. State and federal supreme courts regularly rule on their constitutionality, and state legislatures often seek to undermine or repeal them.

“Republicans voted for a number of these ballot measures and then went on to vote for candidates that don’t support reproductive rights,” Fields Figueredo of BISC says of abortion-rights initiatives that have passed since Dobbs. “This year, folks are having to do more work to make that connection. To make sure the will of the people is heard, we need to have people in governing power to follow through on what voters did.”

Democrats plan to draw attention to ballot initiatives in 2024 as a way not just to boost turnout for the top of the ticket, but to emphasize the importance of down-ballot races that tend to receive little attention but go hand in hand with the initiative process. That’s a tricky balancing act, because if Democrats promote the initiatives too aggressively, it could limit their bipartisan appeal.

In Ohio, supporters are bullish that the anti-gerrymandering initiative will pass—and survive legislative and judicial attempts to kill it. “Would you rather have citizens draw the maps than the politicians?” asks Pepper, the former Democratic Party chair. “That contrast strikes a really strong chord.”

While top Republicans in Ohio view O’Connor as a Liz Cheney-esque figure, a former leading light of the GOP establishment who became an apostate, she has no regrets about taking on powerful forces in her own party for the good of democracy. “I’m not going to let these misguided, self-serving politicians define what kind of Republican I am,” she says.