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THE NEED TO PROTECT DIRECT DEMOCRACY
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Marcus Gadson
March 10, 2025
Governing
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_ Citizens in half the states have the power to place initiatives or
referendums on the ballot. That process is under threat, but in an era
of partisan gerrymandering and unresponsive legislatures we must keep
it viable. _
Supporters of an Ohio constitutional amendment guaranteeing abortion
access cheer its passage at a watch party in Columbus on Nov. 7, 2023.
The state’s voters also defeated a legislatively initiated measure
that would have raised the vote threshhold for p, Laura
Hancock/cleveland.com/TNS
Direct democracy in America is under attack. That development has been
underappreciated as we focus on the vibe shift represented by Donald
Trump’s victory in the 2024 presidential election. Still, it tells
us just as much about the strengths and weaknesses of America’s
constitutional system.
Direct democracy in some form — through citizen initiatives, popular
referendums or both — is an option in 26 states
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District of Columbia. Citizens can petition to place statutes or
constitutional amendments on the ballot or ask voters to approve or
repeal actions of their legislatures. In most states, they can enact
the measure into law with a simple majority vote, and their decision
to do so is not subject to the governor’s veto. Direct democracy
reflects commitments to popular sovereignty, majority rule and
political equality.
In all, 159 statewide ballot measures
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year, with most attention focused on the seven states where voters
used direct democracy to amend their constitutions to protect abortion
access
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Seeing these conflicts over policy play out, along with efforts to
diminish the power of the process, should cause us to both commit to
protecting direct democracy and seriously consider why so many states
embraced it in the first place.
Direct democracy has roots in the nation’s founding and helps
illustrate a significant difference between state constitutions and
the U.S. Constitution. State constitutions have celebrated popular
influence on government in contrast to the U.S. Constitution, which
was designed to limit that influence. For example, North Carolina’s
1776 constitution declared that “all political power is vested in
and derived from the people only,” while the writers of the U.S.
Constitution rejected an amendment with similar language
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proposed by James Madison. Massachusetts allowed residents to vote
directly on whether to ratify a new constitution in 1780, while the
U.S. Constitution was adopted by delegates to special ratifying
conventions.
Beginning in the late 19th century
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state constitutions established initiatives and referendums, partly
because legislatures dominated by special interests were unresponsive
to the public. The U.S. Constitution doesn’t permit initiatives or
referendums.
In recent years, some state legislatures have been busy fighting
direct democracy. In an effort to prevent a proposed amendment to
Ohio’s Constitution guaranteeing abortion access from succeeding,
for example, in 2023 Ohio’s Legislature attempted to change the vote
threshold needed to pass amendments from 50 percent to 60 percent
[[link removed](2023)].
After Ohio voters defeated the voter-threshold measure and approved
the abortion-rights amendment, one commentator urged
Republican-controlled states [[link removed]] to
“consider re-valuating the merits of their constitutional amendment
process long before they think they will become targets.”
Legislatures hostile to direct democracy also have tried to impose
single-subject requirements allowing officials to invalidate
initiatives addressing too many issues, require voters to pass
initiatives twice or institute onerous signature requirements. Arizona
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and North Dakota
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voters rejected these efforts in 2024, but legislatures have succeeded
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in other instances.
The charitable explanation for politicians challenging direct
democracy is that they believe the legislative process is a superior
method of enacting or changing law because it allows for reasoned
deliberation and compromise by the people’s representatives.
But many legislatures are unrepresentative
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Because of rampant gerrymandering and political polarization,
legislators must cater to the most ideological members of their party
to avoid primary challenges. That frequently involves pursuing broadly
unpopular policies. To withstand public backlash, they draw safe
districts that have enough co-partisans to allow them to win general
elections. Direct democracy undermines this arrangement. Therefore,
the only way a passionate minority can maintain the power to impose
its policy preferences and moral vision on society is to sabotage
direct democracy at every turn.
History provides a warning. Majorities may allow minority rule in the
short term, but not forever. For example, 19th-century Rhode Islanders
frustrated by property requirements to vote pleaded in vain with
government officials to expand suffrage for decades. Instead of
accepting failure, they held a constitutional convention without
government sanction and raised a militia to implement by force the
constitution it produced. Though the Dorr Rebellion
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victory, it ultimately pressured authorities to liberalize voting
requirements.
Recent political violence — as represented by the assassination
attempts on President Trump and the Jan. 6, 2021, attack on the U.S.
Capitol — should lead us to view future Dorr Rebellions as a
legitimate concern.
To preserve faith in our political system and reduce the incentive to
work outside it, we need to end partisan gerrymandering and ensure
that the political process is responsive. A deliberative process that
works as intended will reduce the need for citizens to circumvent
legislatures. Meanwhile, keeping direct democracy viable will channel
the inevitable desire to change laws into productive directions
instead of destructive ones.
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_Marcus Gadson is the author of _a forthcoming book
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constitutional crises at the state level. As of July 1, he will be an
associate professor of law at the University of North Carolina at
Chapel Hill. Follow him on _X [[link removed]]_._
Governing’_s opinion columns reflect the views of their authors and
not necessarily those of_ Governing_’s editors or management._
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* Citizen's Initiative Petitions; Ballot Questions; Direct
Democracy;
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