In 2019, writing the decision for Common Cause v. Rucho, Chief Justice John Roberts closed off the federal courts as an avenue for addressing partisan gerrymandering. But, Roberts insisted, the Supreme Court’s decision did not condone these excesses. Rather, another path for addressing structural electoral reform existed. Noting the success of several citizen-driven state-constitutional amendments passed by ballot in Colorado, Michigan, and Missouri the previous November, Roberts said that citizens still had the tools to make change.
Just over a year later, however, that hasn’t proved to be the case.
Voters in Arkansas, North Dakota, and Idaho took Roberts up on his suggestion to drive reform via citizen-led initiative or by amending their state constitution. In Arkansas, with two different amendments, citizens worked to establish an independent redistricting commission and also open primaries and institute ranked-choice voting. In North Dakota, they looked to strengthen overseas-military voting and election audits, open primaries to all voters, and enact instant runoffs. Idaho voters, meanwhile, sought to expand funding for public education. One by one, these initiatives have been knocked off the ballots this summer by state and federal courts, and for the most tendentious and technical reasons.
These court decisions have limited the ability of the people to hold their representatives accountable through direct democracy. This is frustrating because in many states, such levers are all that citizens have left for addressing both voting and more run-of-the-mill policy concerns, with statehouses gerrymandered beyond use, or otherwise beholden to special interests.
But what is all the more frustrating is that these court decisions threaten the very avenue the chief justice suggested for citizens to do something about their own entrenched representatives. In many red states, this could slam the door on meaningful electoral reform for a generation.
In late August, state supreme courts in two red states knocked electoral reforms off the ballot, even after they had been qualified by the secretaries of state. These rulings resemble nothing more than victories for the states’ conservative political establishments, which fought hard to maintain the closed, low-turnout primaries that make it easier for the GOP base to maintain power. In North Dakota, the state supreme court overturned the secretary of state’s previous certification and struck Measure 3—which would have created a “jungle primary” with the top-four candidates moving on to the November election, opening the state’s politics to more voices, among other reforms—from the ballot under the narrowest of pretenses.
Facing intense and unprecedented political pressure from more than 100 Republican leaders who filed an amicus brief, including the governor as well as the state’s entire congressional delegation, North Dakota’s elected justices denied voters the opportunity to decide. In a state dominated by one party, closed primaries are an important tool to maintain power. The court sided with the state’s political establishment and ruled, unanimously, that Measure 3 was invalid because it included a reference to a statute. The ruling lacked any solid legal basis or grounding in precedent: In the past 18 years, six other qualified measures have also included reference to a statute. The 36,000 North Dakota voters who signed petitions to put this on the ballot, and to hold lawmakers accountable in more meaningful elections, had their voices silenced when they tried to use the only realistic tool they had at their disposal.
Meanwhile, what will be on North Dakota’s ballot this fall? A measure advanced by the GOP legislature that would require ballot measures approved by voters to then be approved by the legislature (controlled entirely by Republicans since 1994, who currently outnumber Democrats 79–15 in the House and 37–10 in the Senate), or else face a second vote statewide.
Arkansas’s state supreme court relied on an even more inventive technicality to remove, at a late moment, two popular initiatives that would have reformed redistricting as well as creating a similar jungle primary where the top four finalists moved on to a ranked-choice runoff election in November. More than 150,000 state voters signed the petitions, seeking to make their government more responsive to them. But the court said no. The court’s reasoning? A state statute requires that signature-gatherers pass a state and national background check, as performed by the Arkansas state police. Trouble is, the state police cannot perform national checks. They’re not authorized to do so under state or federal law. The statute also doesn’t define what pass means.
This is a hurdle no citizen initiative could surmount. The grassroots organizers of both initiatives, a nonpartisan group called Arkansas Voters First, certainly tried. They certified that the background checks were completed and provided documentation for each canvasser. That wasn’t good enough for the court, which essentially now requires a background check that state police cannot provide, in order for citizens to exercise their constitutional right to petition for change. The standard appears impossible to meet.
In Idaho, meanwhile, a group known as Reclaim Idaho attempted to expand public-education funding through a combination of tax increases on corporations and the wealthy. Idaho requires a measure to get signatures from 6 percent of registered voters in at least 18 massive state-senate districts to qualify for the ballot. When the pandemic struck in March, that high bar became more daunting. Reclaim Idaho had to abandon in-person signature collection. In June, over the objections of state Republicans, a federal district court allowed the group 48 days to gather the necessary 30,000 names online.
But then in July, a divided U.S. Supreme Court intervened, disrupting the ordinary federal appellate procedure, and halting signature collection entirely. Chief Justice John Roberts found that the court’s action was “justified by the important regulatory interests in combating fraud and ensuring that ballots are not cluttered with initiatives that have not demonstrated sufficient grassroots support.” There was no suggestion of fraud. In reality, this ruling and the state’s actions had exactly the opposite effect. It muzzled the grassroots support from expressing itself at all.
Courts have also reined in one of the voting-rights initiatives that won in 2018 alongside the redistricting victories touted by the chief justice. In Florida, 64 percent of voters amended the state constitution to restore voting rights to 1.4 million citizens who had completed their sentence following a felony conviction. But the state’s gerrymandered legislature modified the provision to require all fines and fees to be fully paid before regaining the franchise. In mid-September, a divided 11th Circuit Court of Appeals allowed this to move forward, contrary to the intent of the amendment and its backers, and despite many critics labeling it a Jim Crow–esque poll tax.
When Roberts issued his decision in Rucho, the partisan gerrymandering case, and pointed to the success of popular initiatives, many observers recalled his dissent in a 5–4 case from 2015 that narrowly upheld the constitutionality of Arizona’s independent redistricting commission. Democracy reformers keep being told that they must take another path. Then those paths keep getting blocked, and, in some states, now the only means of removing the obstruction is itself prohibited.
These decisions portend a grim future in many states: One where voters are unable to make themselves heard at all, and their “representatives” rule unchecked and unreformed.
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