How to Change Policy Without Politicians

As Arkansas politics becomes more conservative, voters are using the ballot for progressive ends.

A cotton grower from Pulaski County, Arkansas, votes in a 1938 ballot referendum. (Corbis via Getty)

David Couch is a lawyer by profession, specializing in cases against Arkansas nursing homes accused of abuse. But in the state’s political circles, he’s better known as a ballot-initiative-writing machine. He has submitted more than 20 proposals to the state attorney general’s office, written three measures that eventually became law, and been involved in well over two dozen other initiatives, some of which have ended up on the ballot.

That’s quite the count for a man who told me that ballot initiatives are his “hobby,” something he’d dabbled in during his early days as a lawyer and only picked back up about a decade ago. But his interest in this civic mechanism—as well as his successes—reflect a broader pattern in Arkansas politics: a new enthusiasm for direct democracy that’s resurrected a latent populist streak in the state.

Because of direct-democracy aficionados like Couch, Arkansas politics in the past two decades, and especially recently, has started to look like it did 100 years ago. At the end of the 19th century, the Populist movement swept through the state. Voters organized to rip power away from a corrupt legislature and put it into their own hands. The dynamics in 2019 are somewhat different—special interests from in and out of state often influence what initiatives are written and why—but the overall effect is similar. Through ballot initiatives, Arkansas’ voters are supporting policies they may never have been able to get through the legislature.

The state took a decisive rightward turn in 2014, when control of the legislature flipped, its last Democrat in Congress lost reelection, and Republicans took over the governorship. But while that’s translated to more conservative policies passing the statehouse—restrictions on abortion, for example—voters have supported all manner of initiative and referendum, including measures typically described as progressive. (“Initiative and referendum” is a collective term used to describe the direct-democracy mechanisms.) In November, Arkansans passed an initiative, written by Couch, to raise the state’s minimum wage. But at the same time, they passed a voter-ID amendment, written by the legislature, with nearly 80 percent of the vote. “Arkansas is really a populist state,” said Couch, who isn’t registered with a political party. “Not necessarily a Republican state, not necessarily a Democratic state.”

Couch’s initiatives are possible thanks to a state constitutional amendment passed in the early 20th century. Arkansas is among just 15 states nationwide—and the only one in the South—that allow citizens to write both constitutional amendments and legislative statutes. In Arkansas, any measure, whether initiated by citizens or legislators, can be put on the ballot if it meets specific criteria. In many cases, “a citizen will come along with an amendment, [and] they’ll do the heavy lifting early when no one thinks that it has any viable chance of passing,” says Dustin McDaniel, the state’s Democratic attorney general from 2007 to 2015.

Couch’s strategy is to take what Janine Parry, a political-science professor at the University of Arkansas, describes as “easy” issues—things that are familiar and that can be easily described in a couple of sentences on the ballot—and put them in front of voters. For example, Couch’s recent minimum-wage measure reads:

An act to amend the Arkansas Code concerning the state minimum wage; the Act would raise the current state minimum wage from eight dollars and fifty cents ($8.50) per hour to nine dollars and twenty-five cents ($9.25) per hour on January 1, 2019, to ten dollars ($10.00) per hour on January 1, 2020, and to eleven dollars ($11.00) per hour on January 1, 2021.

The measure’s language is simple, and its outcomes are clear. “The authors are so essential,” says Parry, who studies state politics at the University of Arkansas and runs the annual Arkansas Poll, which tracks public opinion in the state. Her research suggests that the average voter reads the first couple of lines of a measure and knows right away exactly what to think.

Easy issues are often “social, moral issues about which we don’t have to do a lot of research to know how we feel,” Parry says. “If the entrepreneur who writes the proposal can make it clear that this will make some people’s wages higher, or this will make it okay for sick people to use marijuana ... then it can arrive on the ballot as an easy issue, about which people can make, apparently, snap decisions comfortably.” For “hard” issues—complicated, bureaucratic initiatives that most voters wouldn’t understand at first glance—lack of familiarity can lead many people to simply not vote on them.

Arkansas’ motto has been Regnat populus, “The people rule,” since it became a state, in 1836. But Arkansans became captivated with direct democracy in the second half of the 19th century, when the Populist movement spread across the South and into the West, hitting Arkansas, which lies on the border of the two regions. The first Populists, those who formed agrarian cooperatives and the short-lived People’s Party in the 1890s, were mostly white farmers whose primary complaint was that wealth and political power were concentrated among the elite—capitalists, politicians, and others who they argued were not in tune with the producing classes.

Though the Populist movement largely disintegrated by the turn of the 20th century, in Arkansas, a loose alliance between farm and labor interests helped keep the idea of initiative and referendum alive. “By the early 20th century, a lot of folks were seeing that partisan politics was simply not a viable means of getting to democracy,” says Robert McMath, dean emeritus of the University of Arkansas Honors College and a historian of southern populism. The state legislature at the time was embroiled in corruption scandals, and as the Arkansas historian David Thomas wrote in the 1930s, there was “a general feeling that the lawmakers stayed in Little Rock too long and spent too much money.”

The growing clamor for initiative and referendum was both a response to that worry and a push for policies that voters thought the legislature was too slow to pass, primarily tax cuts. Arkansas wasn’t the only state with such internal turmoil: In the first decade of the 20th century, it was one of 13 states that adopted a system of initiative and referendum.

In Arkansas, the adoption became all but assured when William Jennings Bryan, the populist hero and four-time Democratic presidential candidate, traversed the state on a whistle-stop train tour, giving 55 speeches in five days in support of the proposal. Crowds at Bryan’s speeches reportedly ranged in size from a few hundred to more than 15,000; entire towns shut down for hours to hear him speak. All told, more than 75,000 people went to his speeches.

The Populists at the turn of the 20th century were not the populists of the current era, according to McMath. Back then, they were primarily driven by economics and a gut feeling that the more true democracy present in state government, the better. What today’s pundits call populists—the Trump-rally crowds chanting “Lock her up”; the white, working-class Trump voter toiling in coal country—aren’t in keeping with the tradition of American populism, he says.

“The politics of populism in Arkansas was about as close to socialism as you find anywhere,” McMath says. In the early 20th century, Socialists maintained a strong third-party presence in Arkansas. (There are no hard data on their numbers in the state, but in neighboring Oklahoma, Socialists comprised a greater percentage of the population than they did in New York.) The direct-democracy coalition in Arkansas was composed of Socialists, Progressives, Democrats, and the remaining Populists, who shared an anti-elite mind-set in what has always been a poor, under-resourced state. “People were just poorer here for longer here,” Parry says. “There wasn’t a planter class, for example, that developed in the states in the Deep South.” For a while, initiative and referendum seemed to be their antidote to the legislature. Citizens brought initiatives to the ballot more than a dozen times a decade from the 1920s through the 1960s.

But the democratic mechanism throughout that time was never truly democratic—not all Arkansans could vote. Though black citizens had gained voting rights after the passage of the Fifteenth Amendment, as well as a number of state legislative seats during Reconstruction, around the turn of the 20th century, the Democratic Party instituted Jim Crow policies that turned back the clock on those gains—and were, in part, an attempt to distract from the economic and class worries of the Populists by fanning the flames of racist fears. The Populists’ promises to bring vox populi to the statehouse rang hollow for the nearly 30 percent of Arkansans on whom the state had imposed substantial barriers to voting.

The majority-white electorate often used the initiative-and-referendum process to work against the expansion of democracy, particularly during the civil-rights movement. In 1956, voters passed a series of initiatives designed to thwart national school-desegregation efforts, and at the same time, struck down an initiative that would have banned the state’s poll tax. It wasn’t the first time that direct democracy had been used for regressive ends: In 1928, a citizen-initiated state statute, which passed with 63 percent of the popular vote, banned the teaching of evolution after the legislature had declined to do so the year prior.

After the 1960s, the use of the citizen-initiated ballot process petered out. There were a number of reasons for the dry spell, including debates over a new state constitution and low passage rates for initiatives that did make it on the ballot. And with a one-party stranglehold on state politics and little organized opposition, there likely wasn’t as much of an appetite for grassroots initiatives to buck the legislature.

But now, in a time of strident partisanship, ballot measures are beginning to resurface in Arkansas, and in many other red states, as a vehicle for changing state policy while circumventing the party that holds institutional power. The language that minimum-wage advocates used to sell the 2018 hike was as populist, economic-focused, and anti-establishment as Bryan’s exhortations. “We’re able to take the partisan labels off ideas,” says Jonathan Schleifer, the executive director of the Fairness Project, which partially funded and helped strategize for last year’s minimum-wage campaigns in both Arkansas and Missouri. “The biggest gap isn’t between Republicans and Democrats,” he adds. “It’s between politicians and everyone else.”

While Couch’s initiatives have brought a liberal flavor to the state ballot box, Arkansas conservatives have also depended on ballot measures. As recently as 2012, they used them to get around the then-blue legislature, targeting issues such as gay rights and abortion rights, which were broadly unpopular among Arkansas voters. These initiatives were spearheaded by Jerry Cox, the conservative Christian leader of the Family Council, an Arkansas-based group associated with national political groups on the Christian right. “I entered this through the pro-life door, realizing that, at the time, the Arkansas legislature would probably not be interested in doing anything to prevent public funding of abortion, but we felt that public opinion was more in that direction,” Cox told me. “Sometimes the legislature is way out of step with where the people are on issues, and that cuts both ways.”

But while Couch and Cox alike extol the virtues of the people’s rule, what sets the current era of Arkansas politics apart from its past is how many outside entities are trying to influence the people’s vote. Political parties, special-interest groups, businesses, and in-state actors have all tried to weaponize the initiative-and-referendum process, with varying degrees of success.

That includes Couch himself. In 2014, Couch and others in Arkansas thought that a minimum-wage initiative on the ballot could help boost then–incumbent Democratic Senator Mark Pryor’s reelection bid. They thought that if Pryor endorsed the wage hike, voters would turn out to back them both—a strategy that ultimately failed when Pryor’s opponent, current Senator Tom Cotton, came out in support of raising the wage himself. “Candidate Cotton, at the time, was one of the first ones to endorse it,” Couch said. “All of a sudden, you lost the wedge, or the issue that you were trying to build a campaign around.” And the wage measure ended up sucking volunteers from an already thin Democratic operation. “They actually had to divert some attention from the Pryor campaign,” says Jay Barth, a politics professor at Hendrix College and a former Democratic candidate for the state legislature. “Canvassers were working on the minimum wage rather than working on doing canvassing for Pryor.”

Special-interest groups have seen a bit more luck, though it can be hard to determine which issues are driven by special interests and which aren’t. Activists in Arkansas had been trying to legalize medical marijuana via ballot measure for several years before they were successful, in 2016. But the effort also received hundreds of thousands of dollars in funding from interested parties that year. (The money was directed toward two quasi-competing initiatives. The other, which would have allowed some patients to grow their own marijuana, was eventually struck from the ballot.)

Couch asks national groups to help fund many of his initiatives, as have proponents of other initiatives, some of whom have simply given in to the counterintuitive idea that you need big money to win local fights.

In some Arkansans’ eyes, big money could threaten key tenets of the early Populist movement that are still alive in the state: an aversion to concentrated wealth, and a disdain for public policy controlled by monied interests. “The thing that could ruin the entire initiative process for everybody is if people get disgusted with powerful people trying to buy their way into the constitution,” said Cox, whose Family Council has thus far avoided major spending on initiative campaigns, though the organization has worked with national conservative Christian groups. “It’s a little bit like big money coming in and buying a candidate race, where people with a lot of money just come in and overwhelm everybody.”

On the other hand, special interests have had their hand in Arkansas’ direct-democracy process since its inception. In the 1930s, Thomas, the Arkansas historian, wrote that a spate of ballot measures whose origin was “a great mystery” seemed to benefit certain business interests and “mark the definite entrance of ‘special interests’ into the field of popular government.” Like most things in politics, the degree to which special-interest groups use the ballot-mechanism process seems to ebb and flow.

Lately, rhetoric about the rising influence of special interests has proved a useful tool for the state legislature, which hasn’t taken direct democracy’s challenge to its lawmaking authority lightly. In recent years, the legislature has made it harder for citizens to initiate ballot measures by tweaking the process of gathering petition signatures.

A greater trouble is an amendment drafted by legislators last month, which will appear on the 2020 ballot. It would fundamentally alter the ballot-initiative process by dramatically increasing the number of signatures needed to get a petition on the ballot, and forcing advocates to gather those signatures six months earlier than they currently need to—making citizen-initiated ballot measures almost prohibitively out of reach.

In the face of this type of challenge, Couch and Cox see eye to eye—the proposed amendment is a threat not only to their individual projects, but to the state’s long tradition of direct democracy. “We both agree, and have always agreed, on the importance of the process,” said Couch, who’s working on writing a counter-amendment.

“It’s a little bit like free speech,” Cox said. “I don’t like all the speech; I don’t think anybody does. But we’re all glad we have it, and we believe that it ought to be preserved and defended.”