Read: America’s elections won’t be the same after 2020
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.