When a coalition of voting rights activists in Ohio set out last December to introduce a new ballot initiative to expand voting access, they hardly anticipated that the thing to stop them would be a matter of word choice.

But that’s what Ohio Attorney General Dave Yost took issue with when he reviewed the proposal’s summary language and title, then called “Secure and Fair Elections.” Among other issues, Yost said the title “does not fairly or truthfully summarize or describe the actual content of the proposed amendment.” 

So the group tried again, this time naming their measure “The Ohio Voters Bill of Rights.” Again, Yost rejected them, for the same issue, with the same explanation. After that, activists sued to try and certify their proposal—the first step on the long road toward putting the measure in front of voters on the ballot. 

“AG Yost doesn’t have the authority to comment on our proposed title, let alone the authority to reject our petition altogether based on the title alone,” the group said in a statement announcing their plans to mount a legal challenge. “The latest rejection of our proposed ballot summary from AG Yost’s office is nothing but a shameful abuse of power to stymie the right of Ohio citizens to propose amendments to the Ohio Constitution.”

These Ohio advocates aren’t alone in their struggle to actually use the levers of direct democracy. Already in 2024, several citizen-led attempts to put issues directly to voters are hitting bureaucratic roadblocks early on in the process at the hands of state officials. 

Arkansas organizers have been stonewalled by their attorney general, who has rejected language for ballot proposals to expand medical marijuana and increase government transparency. In Nebraska, a lawmaker behind a law sending more public money to private schools has leaned on the secretary of state to block a ballot referendum attempting to repeal it. 

Abortion rights measures have been under particular scrutiny. Missourians attempting to enshrine abortion rights in the state constitution were delayed from gathering signatures for months as state officials fought over the specifics of the ballot measure. Advocates in Montana are still fighting to get their proposal for abortion rights approved for signature gathering after the state’s attorney general rejected it in January. Meanwhile, observers across the South are waiting with bated breath for the Florida Supreme Court to decide the fate of a proposed abortion rights initiative, which could decide whether abortion remains legally available in the region; Florida Attorney General Ashley Moody asked the court to block the proposal, saying that the language is too confusing for voters to understand. 

Ostensibly, these proposals are being rejected over technicalities; a problem with a ballot title, or unclear language in the proposal. But in practice, advocates argue, the state officials reviewing these proposals are blurring the lines between procedural and political. They claim these officials are overstepping the bounds of their discretion to reject ballot initiatives based on their opposition to the underlying issue and not the quality of the petition.

“We have never seen the Ohio AG try to broaden their authority to allow them to determine whether a title is permissible,” explained Emma Olson Sharkey, an attorney specializing in ballot initiatives at Elias Law Group, one of the firms leading the suit against Yost, the Ohio attorney general. “This is clearly, from my perspective, an overreach of authority, and we are seeing similar efforts with conservative officials across the country.” 

National observers say this is an escalation of an ongoing effort by leaders of mostly conservative state governments to thwart direct democracy. Bureaucratic backlash to citizen-led ballot initiatives has become a pattern in some red states. Arkansas’ Republican-run legislature last year pushed through new rules raising the signature-gathering requirements, just a few years after voters rejected those same changes. Last August, Ohio voters similarly rejected a proposal put forth by state Republicans to increase the threshold needed for measures to pass.

“It’s all part of this larger puzzle of who gets a say and who gets to participate in our democracy, and where things are popular among constituents but that does not align with whoever is in political power in that state,” said Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, which tracks ballot measures around the country.

A rejection from a state official doesn’t necessarily spell certain death for a citizen-led initiative, because organizers typically have opportunities to correct problems and resubmit. But advocates for direct democracy say the long delays caused by fighting with an attorney general over the language of a ballot proposal wastes legal resources and precious time needed to collect signatures and connect with voters. In this way, even if state officials can’t kill proposals outright, then perhaps by a thousand cuts.

In the just over half of states that allow for citizen-led ballot initiatives or referendums, each one has different rules governing the process. In Michigan, a proposal is submitted to the secretary of state before signature gathering, and language is reviewed by the state Board of Canvassers. Illinois has next to no pre-approval process at all for a petition to make it onto the ballot. In Florida, by contrast, ballot title and summary language must be approved by the secretary of state, the attorney general and the state supreme court. 

In evaluating these petitions for inclusion on the ballot, these state officials are typically empowered to conduct a review of the petition’s formatting, language, and adherence to state and federal laws. This may mean an attorney general or lieutenant governor making sure that a petition only applies to one subject, or that the language of a summary is easy to understand. These officials don’t have the authority to review the underlying issue a petition is about. And yet, in recent years, some of them seem to be pushing the boundaries of their clerical duties. 

“It really should be more mechanical power to certify this and neutrally evaluate it,” explained Quinn Yeargain, a professor of state constitutional law at Widener University and frequent Bolts contributor. “They’re putting a thumb on the scale and pushing, I think, to expand the understanding of their power.”

David Couch, an Arkansas attorney who has spearheaded various ballot proposals for years, claims the state’s attorney tried to undercut organizers’ attempts to increase government transparency by repeatedly rejecting their proposed language for ballot measures. Couch worked with a coalition called Arkansas Citizens for Transparency last year to introduce a pair of initiatives aimed at amending the state constitution and creating a new state law to guarantee the right to access public information. The ballot initiatives were first submitted to Republican Attorney General Tim Griffin in November of last year, but he rejected one of them, on the grounds that the popular name and ballot title, “The Arkansas Government Transparency Amendment,” was not sufficiently specific.

The group resubmitted the amendment in December, offering four different options for ballot titles and other changes to the text, but the proposal was again rejected. They made a third submission in January, but before Griffin could issue a decision, Couch sued the attorney general in state court over the previous rejections. 

“In my opinion, he was using his statutory authority, which is very limited, to make us rewrite the amendment and rewrite the act to weaken it, and to make it be more what he would like it to be rather than what we the people would want it to be,” Couch told Bolts.

Griffin has maintained that his rejections remained within his authority, and stated in his first opinion from December that his “decision to certify or reject a popular name and ballot title is unrelated to my view of the proposed measure’s merits.” Even so, later on in the opinion, Griffin wrote that he took issue with the word “transparency” in the ballot title, saying it had “partisan coloring” and “seems more designed to persuade than inform.” 

Griffin eventually accepted both proposals, though not before one more rejection, and Couch dropped the lawsuit—not because he had a change of heart, he says, but because the coalition had already lost too much signature-gathering time. Organizers now have until July 5 to gather 90,000 signatures from voters in at least 15 counties to get the issue on the November ballot. (That threshold would be even higher under the bill Arkansas passed last year, but it’s currently held up by a different lawsuit heading toward the high court.)

“They use it to run the clock up. You lose a month every time you have to change something,” Couch said. “What he did was just wrong. It’s unconstitutional.” 

In Missouri, abortion rights organizers have engaged in a nearly year-long battle with the state over a proposal to enshrine abortion rights in the state constitution and override the state’s near-total abortion ban. 

After the group, Missourians for Constitutional Freedom, submitted 11 different options for an amendment proposal back in March, there was a protracted legal fight with Attorney General Andrew Bailey, a Republican. Bailey tried to force a fiscal impact statement onto the measure claiming it would cost taxpayers billions of dollars (the state auditor, who is tasked with such assessments, had initially determined the state would see “no costs or savings”). 

Once the state supreme court rejected the attorney general’s attempts to inflate the cost of the amendment, the proposal moved on to Republican Secretary of State Jay Ashcroft, who was tasked with writing 100-word summaries of each option submitted. Organizers accused him of using misleading and partisan language to describe six of the proposals, and the courts ultimately agreed with them after they sued; in an Oct. 31 ruling, a state appeals court said that Ashcroft’s ballot summaries were “replete with politically partisan language,” and ordered him to use the more neutral summaries written by a lower court. Ashcroft tried to appeal the decision to the state supreme court, but they refused to take up the case. 

Once the dust settled from all this legal back and forth, by the time Missourians for Constitutional Freedom embarked on their formal signature-gathering campaign, it was already January, eleven months since they first submitted their proposal. They now have until May 5 to gather more than 170,000 signatures to get it on the November ballot. One observer with experience running petition campaigns described the experience to The Missouri Independent as “going downhill at a very fast rate of speed.” 

In Montana, a group backing a similar abortion rights measure, Montanans Securing Reproductive Rights, is still stuck in limbo. After state Attorney General Austin Knudsen, a Republican, rejected their measure for not adhering to the single-issue rule, the group quickly petitioned the Montana Supreme Court to overturn the decision, claiming that Knusden overstepped his bounds. They have some precedent on their side—the supreme court in November reversed a similar decision from the attorney general, after he invalidated a ballot measure to reform election rules to create a top-four primary. 

“We were prepared for the fact that it was likely [Knudsen] would try to block the ballot measure and try and take up more time,” said Martha Fuller, president of Planned Parenthood Advocates of Montana, one of the groups in/leading the coalition. But Fuller says they’re not letting this delay kill their organizing momentum. 

“I feel really confident in our ability to gather the number of signatures even on a tighter time frame than we are now,” she said. “Every day we’re hearing from folks who are ready to go; we’re already feeling a sense of momentum building around this measure.”

As organizers fight to get their initiatives on the ballot, they also face broader conflicts around citizen-led ballot measures. Lawmakers around the country have continued to tinker with rules governing nearly every step of ballot initiative processes. While voters in Ohio and Arkansas have rejected state attempts to move the goalposts for ballot initiatives, in others states officials have forced those changes; an analysis by Ballotpedia of legislative changes made to the initiative and referendum process between 2018 and 2023 found that roughly 20 percent of all the legislation passed made the processes more difficult.

And the changes keep coming: Just last week, Republicans in the Missouri legislature advanced two different bills that would make it harder for initiatives to pass. One passed by the Senate would require that a proposal receive majority support in five of the state’s eight congressional districts to pass, in addition to a simple majority of voters statewide. The other, which just passed in the House, would add stricter requirements for the signature gathering process. 

“There’s a constant pushback from conservatives to try to stop these measures in their tracks,” said Olson Sharkey from Elias Law Group. “Because they know, especially with reproductive rights, if these measures get on the ballot, they’re going to win” 

Olson Sharkey sees these tactics coming out of conservatives’ playbook, but conservatives aren’t the only ones deploying them. As Bolts has reported, the Democratic city government of Atlanta changed the rules for popular initiatives in an effort to block a proposed referendum against the ‘Cop City’ police training center; the city council earlier this month went as far as to approve the controversial practice of signature matching to disqualify some people who signed the petition. 

For Fields Figueredo, who tracks ballot initiatives across the country, no matter who’s responsible, chipping away at ballot initiatives betrays a disregard for the fundamental principles of democracy.

“It’s ultimately about minority rule,” she said. “We could elect people in a democratic process, and also they are not actually listening to the will of the people.” 

The post Red State AGs Keep Trying to Kill Ballot Measures by a Thousand Cuts appeared first on Bolts.

There’s something odd about next month’s ballot in Arkansas. 

Voters are filling two supreme court seats in two separate nonpartisan elections. Neither seat’s current occupant is seeking a new term, so at first glance it may look like the cycle will add two fresh faces to the court. But of the six candidates running for these two seats, four are already sitting justices on the court—they just want to shift into different seats than their own. 

If justices who already sit on the supreme court win either of those seats, they would then need to resign from their current positions. This would create vacancies that would be filled by the state’s staunchly conservative governor, Sarah Huckabee Sanders, a reshuffling that’s poised to accelerate the court’s shift toward a solidly right-wing majority. 

“Almost inevitably, the governor is going to end up with some appointments here,” said Jay Barth, a professor emeritus at Hendrix College who has long studied Arkansas politics. “And the more she gets, the more conservative the court is likely to get as well.” 

The only two candidates not already on the court face tough odds, crushed by their opponents’ name recognition and fundraising. Each told Bolts that they’re concerned about the prospect of the governor shaping the court’s membership when justices are supposed to be chosen by voters. 

Many states select justices via elections, but then stretch the spirit of that approach. Justices in other states routinely resign before their term is up, enabling governors to name a replacement; in Minnesota, for instance, all current justices owe their seat to an appointment despite the state’s election system. As Bolts has reported, a loophole in Georgia law has even allowed state justices and other officials to maneuver to outright cancel some judicial elections.

In Arkansas, the reasons for this situation are very different across the two elections. One of the two open supreme court races this year is to replace Chief Justice John Dan Kemp, who is retiring rather than seek a new term. Three of the court’s associate justices—Karen Baker, Barbara Webb, and Rhonda Wood—are running for the open chief justice position, which is akin to seeking a promotion, since the chief justice has broad responsibilities over supervising the state’s judicial system. 

It’s not unusual for an associate justice to run for chief justice, but already sitting on the court is not a necessary stepping stone. Kemp was not on the court in 2016 when he successfully ran for chief justice. This year too, there’s a candidate running from the outside: Jay Martin, an attorney and former lawmaker, argues it’s an asset that he’s not already a justice. “I just think that we need a fresh pair of eyes on the court in the role of chief justice,” Martin told Bolts. (This race will head to a November runoff if no one tops 50 percent on March 5.)

Arkansas’ other open supreme court race is a special election that was triggered by the death last summer of Associate Justice Robin Wynne. It pits another outsider to the supreme court—Carlton Jones, a lower-court judge—against another sitting associate justice, Courtney Hudson, who is attempting to switch to the open associate justice seat. (With only two candidates in this race, one of them is sure to win outright in March.)

There’s no promotion at play here; Hudson’s current seat (“Position 3”) and the seat she is running for (“Position 2”) both fill the same role. What’s different between them is the timing of their elections. 

“By running for Position 2, I can potentially serve longer as a justice on the Court and continue my work of ensuring that everyone benefits from the goodness and protection of the law,” Hudson told Bolts this week.

Switching seats would allow Hudson to spend more time on the court, circumventing the state’s retirement age by a few extra years. Arkansas rules strip justices of retirement benefits if they run for reelection past age 70 but don’t force them to resign once they hit 70; justices can finish whatever term they’re already serving without endangering their benefits, thus the exact timing of their terms determines when they must retire. 

For Hudson, these are all considerations for a very distant future since she is only 51. Even if she stayed in her current seat, the earliest she’d have to retire is 2042. But if she succeeds at moving into the new seat this election, she’d be allowed to run as late as 2038 and serve out a final eight-year term until 2046—a potential four additional years on the court.

Jones, the lower-court judge challenging Hudson for the open seat, told Bolts in an interview that Hudson’s motivation for running was a “personal want,” comparing it unfavorably to what he called her three colleagues’ “legitimate reason” to run for chief justice. He added that a vacancy created by a Hudson win would be an “artificial opening” because of how unnecessary it is, and that this would betray the selection system that allows Arkansans to “express their choice through the ballot box.”   

“These offices, they belong to the citizens of the state of Arkansas, and we should be doing those things that best serve them,” he added. 

Hudson dismissed Jones’ concerns about her decision, saying it’s wrong to litigate the fate of the Position 3 seat during the campaign for Position 2. She said her experience makes her the best option to fill the open seat, telling Bolts, “The job of a Supreme Court Justice is far too important to wait for ‘on the job training’ to occur.” 

Martin, who is challenging three sitting associate justices for the chief justice seat, says he does not fault his opponents for trying to “step up” into the role. But he echoed Jones’ assessment that these races, and the prospect of gubernatorial appointments looming over them, are in tension with the state’s commitment to judicial elections, a system that was ratified by voters in a 2000 ballot initiative. 

“Arkansans made the decision to elect our judges, and not have the governor appoint judges,” Martin told Bolts. “We value electing judges.” 

Wood, one of Martin’s opponents, does not share his concern, telling Bolts via email, “I believe the people of Arkansas would prefer an experienced Chief Justice with a proven judicial record versus risking the Chief Justice position on someone with no judicial experience only because some would prefer the Constitution provided an alternative method for filling the temporary vacancy.” Baker and Webb did not reply to requests for comment.

A vacancy in Arkansas sparks a special election in the next even-numbered year, and an appointed justice cannot run for a full term. So if Huckabee Sanders chooses one or two new justices, they’d serve for up to two and a half years; then, there’d be new open elections for those seats in 2026. 

After Wynne’s death, for instance, the governor replaced him by appointing Cody Hiland, who was thus barred from running for the seat in the special election this year. But Barth says he expects Hiland to be on the shortlist for a new appointment to fill any vacancies that may result from the 2024 elections, which would extend his term on the court without facing voters to roughly three years. Hiland dodged the question of a reappointment when asked by The Arkansas Times earlier this month.

And important cases are looming just over the next few years, such as the challenge to a state law passed in 2023 that has significantly weakened direct democracy in the state. Relatedly, transparency advocates are embroiled in a legal saga against the state’s Republican attorney general who has blocked some popular initiatives from moving forward; the court is likely to weigh in on the fate of several ballot initiatives in coming years.

The reshuffling of the court also comes at a time of quick ascendancy for Arkansas conservatives.

While the state leans firmly to the right, its judiciary is divided between a more centrist and a more conservative wing, with recent elections producing some victories for the former. In 2022, conservatives failed in their effort to oust two justices whom they deemed to be too moderate—Baker, who is now running for chief justice, and Wynne, who passed away last year. 

Those two justices, plus Hudson, formed an informal group of three moderates on the seven-member court. Barth says that Kemp, the retiring chief justice who was first elected in 2016, typically issued conservative rulings but sometimes sided with his more moderate colleagues. But Wynne’s death last year, and his temporary replacement with Hiland, a conservative, set up a more reliably conservative majority on the court made up of Hiland, as well as Webb and Wood, who are both now running for chief justice, and Shawn Womack, an associate justice who is running for reelection unopposed this year. 

Kemp’s retirement could leave Baker and Hudson as the only two justices left on the court who have a more moderate reputation. Both are sure to stay on the supreme court no matter how they fare this year in their effort to switch seats. But if they win their upcoming races, the resulting appointments by Huckabee Sanders may shift the court yet another step to the right. 

“It’s pretty clear that the governor will attempt to appoint conservatives in those positions, that’s been the nature of her appointments so far,” Barth said. 

In their respective interviews with Bolts, Jones and Martin—the would-be newcomers to the court—each downplayed having ideological commitments, highlighting their independence. WIth candidates for judge in Arkansas running without any party label, that all makes it risky to predict how the court would rule on any issue even if they were to win. 

Still, both have run for past offices as Democrats. Jones became prosecuting attorney in Lafayette and Miller counties, in southwestern Arkansas, running as a Democrat in 2010; he served until becoming a circuit judge in 2014. Martin, who says he’s now an independent, was a Democratic lawmaker and House Majority Leader in the mid-2000s, right before the state’s hard swing toward the GOP. He also ran for governor in 2022, coming in a distant third in the Democratic primary. 

As he now runs against three sitting justices at once, Martin embraces his outsider status as the thing that distinguishes his campaign, even as his opponents hold it against him. “The presumption that any necessary change is stalled because there is not an outsider on the court is wrong,” Wood, one of the justices on the ballot, told Bolts in an email. “The Chief Justice role is not one that you can learn on the job.” Wood says she has goals of improving the court system, such as setting up a “web portal for victims of domestic violence” to file their documents.

Martin insists that his experience is relevant to the position. A volunteer pastor in Little Rock, he points to past activities like his involvement in an expungement clinic through his church as an example of the outsider’s perspective he’d want to bring. “I think that community involvement is very important to break up the status quo,” he told Bolts, denouncing the fact that many Arkansans lack access to legal help and end up unsuccessfully representing themselves in expungement proceedings or civil disputes with landlords. 

Martin also told Bolts that his background as a former legislator would prime him to talk to lawmakers and identify funding sources in budget negotiations. He vowed to be “the chief advocate for more pro bono work for attorneys and law students” to improve the legal representation people receive. 

“We can do a better job of providing services,” he said. Of his opponents who are already on the court, Martin added, “I think that it’s just easy to maintain the status quo after a number of years.”

The post Judges Play Musical Chairs on Arkansas’ Highest Court appeared first on Bolts.

“The court didn’t make it any easier to win voting rights cases,” redistricting expert Justin Levitt told Bolts at the time. “It just declined to make it much, much, much, much, much, much harder.”

But the reprieve may have been temporary, and winning voting rights cases may still get much harder this year. A series of cases are working their way through federal courts that represent grave threats to Section 2 of the VRA, which prohibits denying the right to vote “on account or race or color,” language that extends into protection against racial gerrymandering. 

In these cases, conservatives are trying out a suite of new legal arguments, each of which would dramatically narrow the scope of the VRA. The cases are still making their way through district and appellate courts, with some early rulings favoring conservatives, at times authored by judges nominated by Donald Trump. Many are expected to end up at the Supreme Court, where members of the conservative majority have already expressed skepticism at various aspects of the VRA. 

Judges will decide if critical protections afforded by Section 2 of the VRA remain applicable to the present, whether the law applies to statewide races and coalition districts, and even whether voting rights groups can ever bring a lawsuit under Section 2—a sleeper case that already detonated in an appeals court last fall. The most acute stakes concern the rules of redistricting, with officials in GOP-run states including Alabama, Arkansas, Louisiana, North Dakota, and Texas proposing new interpretations that would fuel gerrymandering and undercut the voting power of communities of color. 

Here is your roadmap to four major legal threats that may further unravel the VRA in 2024, and what cases you should be watching.

1. What if private plaintiffs can no longer sue?

What is the threat to the VRA?

For decades, ordinary citizens and voting-rights organizations have brought lawsuits alleging VRA violations. These lawsuits, and the mountain of legal work and research that goes into them, have been critical to getting courts to strike down discriminatory legislation and create districts that allow communities of color to be represented by candidates of their choice.

In what’s undoubtedly the biggest threat facing the VRA, federal courts might invalidate that entire approach. Conservatives have made the case that only the U.S. Attorney General has the power to sue over violations of Section 2 of the VRA, and they landed a startling ruling by a district court judge last year. If the ruling stands, it would ban private parties from bringing these lawsuits, massively shrinking enforcement; when the Department of Justice is controlled by politicians hostile to civil rights, it may eliminate these VRA lawsuits altogether. 

What are the cases to watch?

Keep an eye on Arkansas State Conference NAACP v. Arkansas Board of Apportionment, the challenge to Arkansas’s state legislative districts. 

After Arkansas Republicans drew new legislative maps in 2021, the state NAACP sued in federal court, arguing that Black Arkansans were underrepresented, and that this violated Section 2 of the VRA. But the district court judge who heard the case, Trump-appointee Lee Rudofsky, questioned whether the NAACP was even allowed to bring suit at all. 

It’s been a long-established practice for private parties to sue over Section 2 allegations. But Justices Neil Gorsuch and Clarence Thomas encouraged that question to be revisited in a 2021 concurrence, stating that courts have “assumed” that this is appropriate without ever deciding it. Walking into that breach, with an explicit appeal to Gorsuch, Rudofsky ended up dismissing the suit with a bombshell finding: “Only the Attorney General of the United States can bring a case like this one.” 

In November, a three-judge panel on the Eighth Circuit, one of the most conservative appellate courts in the country, affirmed that ruling in a decision authored by Eighth Circuit Judge David Stras.

If the ruling holds—the NAACP has asked the full Eighth Circuit to reconsider the decision, and an appeal to the U.S. Supreme Court is likely regardless—it would be sure to sideline a great many VRA cases. Besides the Arkansas litigation, high-profile cases last year that led to new maps in Alabama and Louisiana were brought by private plaintiffs, and would have been dismissed outright under Stras’ ruling.

The GOP has rushed to defend the holding and use it in other contexts. In December, the Republican attorneys general of twelve states (including Idaho’s Raul Labrador, Kansas’ Kris Kobach, and Texas’ Ken Paxton, all prominent far-right figures) signed on to an amicus brief asking the Fifth Circuit to take on the Eighth Circuit’s interpretation and rule against voting rights groups in the ongoing litigation around Alabama’s congressional map.

And in North Dakota, a state that falls within the Eighth Circuit, the Turtle Mountain Band of Chippewa Indians and the Spirit Lake Tribe successfully challenged legislative districts in 2023 for diminishing the voting power of Native voters. State officials have agreed to use a replacement map for the 2024 election but have appealed the use of the map beyond that point. And in pushing back against the ruling last month, North Dakota’s Republican Secretary of State, Michael Howe, has already invoked the same argument that private parties cannot bring suits under Section 2 of the VRA, an argument that would outright silence the legal power of the two tribes that challenged the state.

2. The conservative case that times have changed

What is the threat to the VRA?

When the Supreme Court in 2013 struck down Section 5 of the VRA, which required certain jurisdictions to seek D.O.J. approval before changing their voting procedures, Chief Justice John Roberts wrote that “things have changed dramatically” in the South since 1965.

Some conservatives want federal courts to go even further, and dramatically re-interpret Section 2 on that same basis. And Justice Brett Kavanaugh last year gave them a reason to keep trying, doing so in the very same Alabama case in which he sided with the liberal justices to otherwise save the VRA. He noted that Justice Clarence Thomas’s dissenting opinion in the case argued that “the authority to conduct race-based redistricting cannot extend indefinitely into the future.” But Kavanaugh wrote that “Alabama did not raise that temporal argument in this Court, and I therefore would not consider it at this time.” The time may now be coming that’ll test Kavanaugh: Despite the massive barriers that people of color continue to face in exercising the franchise, multiple cases are working their way through the legal system in which defendants are renewing the argument that “things have changed” too much to keep enforcing Section 2.

What are the cases to watch?

Keep an eye on Milligan v. Allen, the continued litigation over Alabama’s congressional map, and Robinson v. Landry, the challenge to Louisiana’s congressional map 

Alabama this year will vote under a new congressional map that a federal court drew in late 2023 to create an additional district likely to elect a Black candidate. State officials have objected to the new map, and in so doing they’ve picked up on Kavanaugh’s argument: Alabama is asking courts to decide whether “the authority to conduct race-based redistricting extends to the present day,” regardless of its original justification. 

Louisiana officials have made a similar claim in their effort to fight court rulings that have struck down the state’s congressional maps as violating the VRA. (Louisiana adopted a new map creating a new majority-Black district this month due to a court-ordered deadline, but the litigation over that order continues.) 

Alabama has called the litigation against its original map “affirmative action in redistricting.” In 2023, the U.S. Supreme Court in 2023 struck down affirmative action in university admissions, and even though that case did not touch on voting rights, GOP officials in several states have weaponized the case to argue that the VRA is no longer applicable to the present.

In July, Louisiana officials filed a brief arguing that the affirmative action decision shows that “statutes requiring race-based classification” will “necessarily become obsolete.” They ask courts to settle “whether the facts on the ground here similarly warrant a rejection of Section 2 of the VRA, as applied, because it is no longer necessary.”

If the Fifth Circuit and the Supreme Court take the bait and say the established interpretation of Section 2 as no longer permissible, it would greatly narrow the legal space for racial discrimination claims.

It would amount to a judicial carte blanche for states to double down on discriminatory practices, except now shielded by the argument that the country is too enlightened to allow such practices.

3. Courts may shut the door to sue over statewide elections

What is the threat to the VRA?

Legal challenges often focus on how politicians have drawn districts: Have they respected the VRA in how they’ve separated or combined a state’s communities? But civil rights litigants have also contested the use of “at-large” elections, which are elections that elect the members of a body (say, a city council) throughout the jurisdiction, without the use of districts. Using this “at-large” structure for local races can prevent minority groups from electing a candidate of their choice; in some contexts, lawsuits have successfully forced counties and cities to convert their electoral system to use districts, allowing different communities to be better represented.

A case that’s percolating through the federal court system may decide whether similar lawsuits can ever be brought in the context of statewide elections. If that door is shut, it would put many government bodies whose members are elected at-large—most commonly, public utility commissions, boards of university regents, or boards of education—beyond the reach of VRA litigation.

What is the case to watch?

Keep an eye on Rose v. Raffensperger, the challenge to Georgia’s public service commission elections. 

In 2020, several Georgia voters sued over the use of statewide (“at-large”) elections for the five members of the state’s Public Service Commission, the body that regulates public utilities. They argued that a compact, Black-majority district could be created to elect a member of the Commission; a district court agreed after a trial, and ordered the state legislature to draw districts to that effect. But the state’s decision to appeal dragged out the process, leading to canceled elections. And in November, in a ruling authored by Judge Elizabeth Branch, another Trump appointee, a three-judge panel on the Eleventh Circuit reversed that decision. The panel held that the plaintiffs had not made out a sufficient claim under the VRA because their proposed remedy would “upset Georgia’s policy interests,” specifically, its “interest in maintaining its form of government.” In other words, because the Georgia legislature decided to make the Public Service Commission elected statewide, the court was obligated to respect that decision.

The ultimate resolution of this case will shape the viability of a lot of prospective litigation. This is believed to be the first case challenging the use of a statewide electoral system, so the district court’s decision had opened the door to similar challenges popping up elsewhere. If lawsuits like this can be brought against the use of statewide elections to pick members of state boards, voters may be able to target other elected state institutions whose “at large” membership is largely or all-white—Alabama’s Public Service Commission and Texas’s Railroad Commission come to mind—with the demand that they replace statewide elections with a system that providing communities of color a better opportunity to elect a member. 

If these challenges can’t be brought, however, communities of color may keep being systematically shut out with impunity.

4. The use of “coalition districts” is under threat

What is the threat to the VRA?

The VRA may compel states or localities to create districts that give voters in a racial group the opportunity to elect a candidate of their choice. In deciding whether such a district is required, federal courts assess whether a specific group’s size and voting behavior warrant such an opportunity district. But what happens when no single racial group is large enough to reach that threshold, but several do so when combined? 

In that context, some federal courts have required the creation of “coalition” districts, a practice that has boosted representation for people of color. For instance, they may consider Black and Latinx residents together to force the creation of a district in which voters would have a better shot at electing a nonwhite candidate. A case out of Texas is now threatening this practice, however. 

What are the cases to watch?

Keep an eye on Petteway v. Galveston County, the challenge to county commission districts in Galveston County, Texas. 

Following the 2020 census, Galveston County commissioners drew a new set of districts for their county commission; their map eliminated the county’s only “majority-minority” district—a coalition district in which Black and Latino voters make up a majority. Backed by conservative legal groups, the county argued during a trial last year that the VRA should not be used to protect multiracial coalitions; but a federal court sided with plaintiffs in restoring the district. Judge Jeffrey Brown, who was nominated by Trump, even wrote that the “circumstances and effect of the enacted plan were mean-spirited and egregious.”

But the conservative Fifth Circuit chose to suspend the decision until it could decide the county’s appeal, and the U.S. Supreme Court blessed that move in December over the objections of liberal justices. The appeals court made clear that it wanted to revisit its past decisions that have endorsed the use of coalition districts.

The case may hand conservative justices another shot at upending the redistricting norms, if they choose to weigh in for the first time on the permissibility of coalition districts. If coalition districts are no longer used as a remedy to racial discrimination, it may further cut the number of districts drawn to elect people of color; in racially diverse regions like Texas, it would make it harder to challenge maps that are resulting in a disproportionate number of white officials.

Some of these questions are playing out in Georgia. A federal court last year struck down the state’s congressional map, ordering an additional Black opportunity district. The legislature responded by carving up an existing coalition district and turning it into a Black majority district. The challengers have argued, unsuccessfully so far, that this is impermissible: that fixing a VRA violation cannot involve eliminating an existing coalition district.

The post Your Guide to Four Emerging Threats to the Voting Rights Act appeared first on Bolts.

Abortion advocates rejoiced, but for some organizers watching around the country, the result was especially exhilarating because it spoke to the fight they’re going through in their own backyards to defend direct democracy.

South Dakotans last year defeated an amendment similar to Ohio’s, which came on the heels of initiatives to increase the minimum wage and legalize cannabis and would have kneecapped a measure to expand Medicaid. In Arkansas, the GOP repeatedly asked voters to limit the initiative process but lost repeatedly at the polls; this year, they adopted new restrictions anyway. Idaho organizers in 2018 expanded Medicaid through a ballot measure, and the GOP keeps trying to make initiatives harder ever since.

Anti-initiative proposals just keep popping up in many other places, including Arizona, North Dakota, Oklahoma, and Utah. And they reemerge even after they’re defeated, forcing proponents of direct democracy to dedicate capacity and resources to protecting the rules of engagement—and to constantly look over their shoulder.

Bolts this week gathered three organizers who have fought this dynamic in each of three states that are undergoing this dynamic: Ohio, Arkansas, and Idaho. Their meeting sparked a wide-ranging conversation about their shared frustrations and strategies.

Mia Lewis, associate director of Common Cause Ohio, was active in the campaign to defeat Issue 1 this summer. Kwami Abdul-Bey, elections coordinator at the Arkansas Public Policy Panel, helped form a coalition to defeat a similar measure in Arkansas last year. As the co-founder of Reclaim Idaho, Luke Mayville launched the initiative to expand Medicaid in 2018 and he has since organized to defend the initiative process in Idaho. 

In a conversation that took place days after Ohio’s election, they took stock of the fights they are  embroiled in together and discussed what explains their convergence. “Oligarchic agendas,” Mayville said, “have everything to gain from shutting down the initiative process.” They’ve each worked separately to protect initiatives in their states, but the attacks they faced and the lessons they learned are similar, and they shared organizing and messaging tips with one another.

“This is a great group to be talking to,” Lewis said. “Because they’re not doing this in one state, they do these things repeatedly in different states, so why shouldn’t we strategize?” 

What attacks on direct democracy have you each fought in your own states?

Luke Mayville (Idaho): We came on the scene in 2018 with a ballot initiative to expand Medicaid that was successful. The legislature reacted by attacking the initiative process. The big showdown came in 2021, when they passed a very restrictive law that would have made it impossible to get future initiatives on the ballot. We sued and got a unanimous decision by the state supreme court striking down that anti-initiative law: They declared for the first time that the initiative process is a fundamental right, and that sent a really strong signal from the court to the legislature. But they came back again this year: They took the rules that had been struck down and tried to put it into the constitution. We put together a bipartisan coalition in the House and blocked the amendment. But we anticipate that they will try again in the next session.

Kwami Abdul-Bey (Arkansas): Ours was because in 2016 and 2018, we were successful in increasing the minimum wage and passing medical marijuana. The response to us doing that was, ‘we’re going to fuck you guys by not allowing you to do this again.’ It happened twice: In 2020 and again in 2022, they tried to increase the percentage [for future initiatives to pass] from a simple majority to 60 percent. They were defeated in both years. This year, they just said, ‘OK, since we can’t get this in the Constitution, we’ll just write a law.’ They wrote a law increasing geographic requirements [for signatures], and that’s currently in front of our supreme court. Your supreme court win in Idaho would be very instructive, Luke, and I’d love to read what it has said.

Mia Lewis (Ohio): In Ohio, Issue 1 was a response to the fact that reproductive rights was going to be put on the ballot this November, so they wanted to make sure that the pass rate was higher. At first they said it’s not about abortion rights, but the important people that were pushing this would admit, in semi-private situations, that it’s 100 percent about abortion. And they’ve already said that they’re going to come back and try again, so we’re expecting that.

All of you have described these anti-initiative reforms as direct responses to groups like yours working on specific initiatives. What would you say is fueling that reaction?

Lewis: A lot of the attacks on direct democracy are linked to the abortion issue, and if it’s not an abortion issue, it’s something else where they don’t like an answer that the people gave. If they don’t get the answer that they want at the polls, or if they’re afraid of the answer that they might get at the polls, well, ‘we’ll change the rules and we’ll make it harder for people to be able to express themselves.’

Our society is filled with these billionaires who want to be able to buy whatever they want, and corporate interests are not satisfied with just letting democracy take its course and listening to the people. Direct democracy is the thorn in the side of these billionaires and corporate special interests, and they don’t want to be thwarted.

Mayville: It really is in the last 10 to 15 years that there’s been a wave of organizers in states realizing that the initiative process can be a powerful way to address social and economic injustices, and picking up that tool and running with it, in many cases overcoming huge odds to get these things on the ballot. If you’re a special interest group that’s mastered the craft of lobbying legislatures, the initiative power is a very scary thing. It’s harder to control the decisions of the general public than of 100 legislators in the state capitol.

Some agendas only really have people power on their side, others have people power and quite a lot of money. But then there are a whole lot of agendas that only have the money, and they’re deeply unpopular: I would call them oligarchic agendas. And those agendas have everything to gain from shutting down the initiative process. The payday loan industry, for example, has been fiercely opposed to initiatives. There was an anti-initiative law proposed in 2019 [in Idaho], and we learned from an investigative article that the legislator who sponsored it had consulted with a payday loan industry lobbyist, and was exposed in the middle of the fight for it. 

The battles you described in each of your states are very similar to one another. Would you characterize the current situation as a national attack on direct democracy, or would that be simplifying differences between state contexts?

Mayville: It certainly appears that there is a nationally coordinated attack on the initiative process; my understanding is that dismantling the initiative has been a major objective of organizations like the American Legislative Exchange Council and various corporate special interests across the country. The main agenda is to undercut any exercise of collective power to address social injustice, economic injustices. 

Abdul-Bey: Luke mentioned ALEC, and when you look at a bill that lands on a committee here in Arkansas, that has the same language that it has in Ohio and Idaho, we know that there’s something going on that’s producing all of this legislation. 

What we are guilty of, is we’re guilty of not really being prepared for this onslaught, and so we’re trying to catch up. In Arkansas, we work with a national organization called BISC, the Ballot Initiative Strategy Center, and BISC has trained me as a ballot measure leader and also helped us put together messaging and create a statewide coalition, both on the left and the right, where we’re able to agree that this fundamental right of direct democracy. When you called me, Daniel, I was actually at a BISC training in St. Louis, where there were about 16-17 states represented, and we were comparing notes and trading techniques.

In fighting these anti-initiative proposals, what messaging and argument have you felt are especially successful?

Abdul-Bey: Here in Arkansas, the state motto is, “the people rule.” So we used that state model as our foundation. We just go out and remind them that our state motto is the people rule. How can the people rule if we are not allowed to put forth constitutional amendments, legislative measures, and veto referendums? 

In addition, our constitution states that the power of the state rests in the people, and that the people loan their power to the legislature, the governor and the judiciary, so we’re able to use that in our messaging to basically have a civics lesson for our citizens. You can’t go out and just change the rules so that you can win; when you change the rules in your favor, you’re cheating.

Lewis: I want to say straight up that we designed a flier that we distributed, over 250,000 of them, all across the state, and I based that 100 percent on messaging from Arkansas: The messaging that, ‘corrupt politicians and special interests are trying to trick voters into giving up their power, giving away their rights,’ that was from Arkansas. So I’d like to thank you. 

I really feel like that encapsulated the issue: They’re trying to trick you into giving up your power. And I would say, I don’t want to wake up on Wednesday with fewer rights than I had on Tuesday. They have enough power, we need our own power. This messaging about freedom and rights is very cross partisan. On the one side we have the people and on the other we have the corrupt politicians and special interests who are bankrolling them. 

Mayville: I love that you’re trading these messages about how they’re trying to take the power of citizens away. We found that to be such a powerful thing. When legislators were trying to convince one another, you would hear them making arguments against democracy—the John Birch argument that ‘we’re not a democracy, we’re a republic.’ The minute they start having to appeal to ordinary voters, they drop that argument and have to divert attention. Because if it’s a debate about whether ordinary people should have a lot of political power, it’s an 80/20 issue.

In addition, when you’re waging these battles, it’s incredibly powerful to draw on the traditions of your own state. We found that there’s this very strong appeal we can make to the constitutional heritage of Idaho, the fact that we have had these constitutional rights for over 100 years.

Ohio’s Issue 1 only addressed the rules of direct democracy, but it also became a proxy battle over abortion rights. Is it helpful in defending direct democracy when the debate focuses on the underlying substantive issues, or does it complicate things?

Lewis: That’s a complicated question. The official ‘vote no’ campaign didn’t want to be too tightly associated with reproductive rights because they correctly saw that it was about many other things. But the ‘vote yes’ campaign tried to tie it to abortion. And on the ground with the volunteers [for the ‘vote no’ campaign] who were out there spreading the word, damn straight they cared about abortion. Damn straight, they wanted to protect their rights and not have them taken away. So yeah, that was an issue for individuals on the ground who care about this. 

Mayville: It’s important to think carefully about exactly what message is going to resonate, and that again echoes back to the corrupt politicians and special interests trying to take away your power. That’s the ten words that you repeat a million times. 

Take the issue we’re most known for, Medicaid expansion, and take the issue of initiative rights: As soon as we went out and started talking with ordinary people, we immediately found that initiative rights had broader appeal. And that’s saying a lot because Medicaid expansion got 61 percent of the vote [in 2018]. People would come up to us and say, ‘I don’t necessarily agree with that initiative you all did, but you had a right to put that on the ballot.’ Similarly, it’s a very common occurrence when you’re getting signatures that people say, ‘I’m not sure I agree with you, but I want this to be on the ballot so that voters can have a chance,’ and they’ll sign it.

Abdul-Bey: We train our canvassers who collect signatures—and Luke spoke to this—to tell people that you’re not signing this to determine your agreement. You’re signing to determine that we have a right to put it on the ballot, that you support the concept of direct democracy.

Also, we’ve been very successful in reminding the people of Arkansas that we would still be at $7/hour minimum wage if it were not for our successfully getting the minimum wage on the ballot. Working-poor Arkansans know the benefits because they have lived with the benefits, and we remind them, ‘Hey, you are paid this much an hour because of this type of work.’

You’ve all described the relentlessness of this fight, and I can imagine the toll that takes on you and your organizations. So where does that leave you today—more optimistic or nervous?  

Lewis: We’re feeling good! We’re pumped because we feel like we won to keep our right to direct democracy, and dammit we’re going to use it. I think the fact that reproductive rights are on the ballot in November helps people feel mobilized: whether or not that’s an issue you support, just the fact that people get a chance to vote. Recreational marijuana is also going to be on the ballot, and then redistricting is right around the corner. We know they’re already plotting something, of course we do, but we’re trying to feel optimistic right now about it for sure.

Mayville: It can be very exhausting. We were in the middle of a debate on school vouchers, and in the middle of that there’s this constitutional amendment fight over the initiative process. We’d already fought twice on that issue, we thought we had put it to rest with a unanimous supreme court ruling. However, the way we’ve decided to think about it, which I do think is the right way for organizers in states to take on this challenge, is to see it as an organizing opportunity: For all of the exhaustion, this is an issue that has much broader support than most of the other issues that we’re organizing around, so it’s really this extraordinary opportunity to use the issue of initiative rights as a bridge to connect people and start a conversation. 

Abdul-Bey: One thing we do in Arkansas is we not only use it to organize but also to strategize for the future. A ballot measure that we’re in the process of authoring is to enshrine those initiative rights within the constitution, using what we’ve learned over the last seven years to plug all of the holes that they have tried to run 18-wheelers through. 

And we’re reaching out to the Lukes and the Mias of the world, and working with BISC, to make sure that we are all unified, working together and using that collective energy to maintain this battle. It is tiring, but at the same time, it’s rejuvenating. And when we heard of Mia’s win, we celebrated and partied because we know that what happened in Ohio is an example of us turning the tide around.

The roundtable has been edited for length and clarity.

The post ‘We Have a Right to Put It on the Ballot’: How Organizers Are Defending Direct Democracy appeared first on Bolts.

But that didn’t stop Arkansas Republicans, who this month pushed through those same stricter ballot measure rules that voters rebuffed in 2020. This time, lawmakers simply packaged their proposal into a regular bill, which sidesteps another referendum to amend the state constitution, and Republican Governor Sarah Huckabee Sanders signed it into law on March 7.

“I think the ultimate goal is to make it harder for citizens to challenge what their government does,” Senator Bryan King, who opposed House Bill 1419, told Bolts. 

King is a Republican, one of three GOP lawmakers (out of 111) who joined Democrats in voting against the bill. Days later, King filed a lawsuit to block it alongside the League of Women Voters of Arkansas, an organization that defends voting rights in the state. Their complaint argues that HB 1419 violates the rules for the ballot initiative process that are laid out in detail in the state constitution. 

“We see this bill as an attack on direct democracy in Arkansas,” says Bonnie Miller, the league’s president. “To have them go into session, pass this bill because they lost, and just say, ‘We know that you didn’t want this, that you don’t want us to restrict the process, but we’re just gonna do it anyway’—it’s ridiculous,” she added.

Currently, organizers must collect signatures from no less than 15 of the state’s 75 counties, a requirement embedded in the state constitution. The 2020 proposal that voters rejected would have increased that threshold to 45 counties. HB 1419 increases it to 50 counties. This will require organizers to set up robust signature gathering operations across most of the state, significantly raising the amount of money and resources that citizen groups need to get an initiative on the ballot. 

“Even collecting signatures in 15 counties is wildly expensive, and so for them to increase the number of counties to 50, it’s going to shut out groups like ours,” says Miller. “We’re not going to be able to afford to do this.” 

David Crouch, an Arkansas attorney who helped jumpstart several initiatives like the successful 2014 medical marijuana measure, and who is now the lead counsel in the lawsuit against HB 1419, agrees. “The grassroots people are going to be screwed,” he said.

HB 1419 is part of a broader nationwide effort by Republican politicians to undercut ballot initiatives. The Ballot Initiative Strategy Center has identified many such bills in recent years; when submitted to voters, like in South Dakota last spring, these changes are often defeated by dramatic margins. But the GOP has also pushed through bills to make the process of qualifying initiatives far more impractical, including imposing more onerous requirements for the geographic distribution of signatures gathered, which is the template that HB 1419 emulates. 

Most recently, Oklahoma’s governor chose to schedule a citizen-initiated referendum to legalize recreational weed in an unusual standalone special election, dampening turnout. The day after the measure lost, on March 8, Oklahoma’s GOP-run state Senate passed a bill that would make it easier to invalidate signatures in the future by mandating that voters use their full legal name when signing a petition (any misspellings, nicknames, or other deviations from a government ID could nullify their signatures). The bill now sits in the Oklahoma House. 

Even in this national context, the law Arkansas Republicans passed this month stands out for recycling a proposal that voters just recently rejected. But crafting HB 1419 as a regular bill to sidestep voter opposition only works as a legal maneuver if its changes to the ballot initiative process don’t require revising the constitution. 

To the bill’s critics, the fact that the state GOP first tried to change the signature requirements for ballot measures with a constitutional amendment in 2020 was acknowledgment that their proposal required one, and that an ordinary statute wouldn’t do. In fact, Republicans initially rebounded from their 2020 failure by drafting yet another constitutional amendment, one that would have forced future initiatives to receive 60 percent of the vote at the polls, rather than 50. Arkansans again rejected that measure overwhelmingly in November 2022, by 18 percentage points. 

David McAvoy, a progressive advocate who chaired the group Protect AR Voices when it helped fight off the 2020 amendment, is livid that the state is ignoring those repeat election results and calls the new law an unconstitutional “power grab.”

“They tried amending the constitution,” McAvoy says, “and now that the voters have rejected those attempts, they’re just saying, ‘Well, we’re just going to forget what the constitution says and just do whatever we want.’” 

The lawsuit against HB 1419 argues specifically that its requirements contradict those in the state constitution’s Article 5, which is the section that regulates the initiative process, and that lawmakers therefore needed to craft their proposal as a constitutional amendment like they did in 2020.

Article 5 states that an initiative must gather signatures “in at least 15 counties.” The lawsuit argues that this constitutional stipulation bars the legislature from passing a law requiring a higher threshold. The bill’s proponents have said this language merely sets “a floor” that lawmakers can raise. Crouch said in an interview that the words “at least” do not authorize lawmakers to  raise the threshold because those words needed to be there to clarify that organizers don’t need to pursue signatures from exactly 15 counties. (Case in point: Republicans deployed the same phrasing in HB 1419, which requires signatures from “at least 50 counties.”)

Crouch also points to Article 5’s final clause, which lays out what the legislature is allowed to do when it comes to toying with the rules: “All its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation. No legislation shall be enacted to restrict, hamper or impair the exercise of the rights herein reserved to the people.” For Crouch, HB 1419 plainly violates these bounds because raising the county threshold from 15 to 50 restricts the ballot initiative process.

“You can’t change the constitution with a bill,” Crouch said. “Facilitate means facilitate, and 15 means 15 and not 50.”

The chief sponsor of HB 1419, Representative Kendon Underwood, did not reply to a request for comment. 

Other Republicans who supported the change say the law will ensure that rural voters are heard. A spokesperson for the governor said Sanders signed the bill because she “wants to ensure all Arkansans, especially rural residents, have a voice in this process.” But King, who represents a Northwest Arkansas district, rejects that argument. “I’m a rural guy through and through, I represent rural counties,” he told Bolts. “This is making it harder for the citizens.”

HB 1419 poses a particular challenge to progressive proposals because Democratic-leaning counties tend to be more populous. Until now, progressive organizers needed to spread their work across 15 counties, and Joe Biden received 35 percent in Arkansas’s 15th bluest county in 2020; that’s nearly identical to his statewide result. But once they need 50 counties, they’ll have to find allies in far more conservative territory than even the state as a whole; Biden received just 20 percent of the vote in the state’s 50th bluest county.

The legislature added an “emergency” clause in HB 1419, so the changes take effect immediately. If upheld, it will affect several efforts that state advocates say are already in the works for 2024, such as the rerun of a 2020 proposal to implement an all-party primary coupled with ranked-choice voting—an initiative akin to what Alaska implemented last year. The proposal was set to make the ballot in 2020 but the Arkansas supreme court blocked it over its strict interpretation of a background-check requirement for canvassers gathering signatures. 

The fate of HB 1419 will also eventually come down to the state supreme court. In last year’s election, conservatives in Arkansas tried to push the state supreme court further to the right by targeting two justices who have a moderate reputation. Both incumbents secured re-election, though, and are likely to be on the court if it hears the case against the new law or any other restrictions, as the legislature could still escalate its war on direct democracy in the remainder of the session. 

On March 10, three days after HB 1419 was signed into law, Republican Representative David Ray filed HB 1601, a new proposal that would require that the canvassers who are hired by organizations to collect signatures first obtain a special license. The bill would ratchet up the costs and bureaucracy associated with the process, just as HB 1419 has required organizations to hire significantly more canvassers given they’ll need to spread in many more counties.

Crouch expects even more attacks on ballot initiatives. “They just feel like they are in power to do whatever they want to do,” he said. “They don’t care anything about the constitution, unless it’s a gun.”

The post “An Attack on Direct Democracy in Arkansas”  appeared first on Bolts.

Voters in Maryland and Missouri supported proposals to allow for the regulated sale of marijuana for non-medical purposes, joining 19 other U.S. states that have already done so. However, similar proposals in Arkansas, North Dakota and South Dakota all were shot down by comfortable margins.

Also, ten years to the week since Colorado and Oregon became the first two states to legalize recreational pot, Colorado voters are poised to approve a measure that removes criminal penalties for use, possession and home-grow of psilocybin (“magic mushrooms”) and some other psychoactive substances. Oregon went first on this front, passing a ballot measure decriminalizing those substances in 2020. 

“The more public dialogue there is on drug policy issues, the more sensible the policy outcomes are,” said Mason Tvert, a policy expert and industry advocate who co-directed Colorado’s landmark 2012 campaign to legalize non-medical cannabis use. 

“As we saw in North Dakota, South Dakota and Arkansas, there’s still a lot of work to be done. Most people alive right now have lived the vast majority of their lives in a world where cannabis was entirely illegal, and where they were hearing anti-cannabis propaganda. It’s not surprising that there are still voters with concerns. … But the writing’s on the wall.”

Underscoring Tvert’s point is the fact that even President Joe Biden, who has been a dedicated soldier in America’s war on drugs, is coming around. Last month he ordered a federal review of marijuana’s classification as a “Schedule 1” substance, defined as having “no currently accepted medical use and a high potential for abuse,” and he pardoned thousands of people convicted federally and in the District of Columbia for marijuana possession.

The marijuana map is diversifying rapidly in the U.S., as the issue is no longer a project only of progressive advocates for drug policy reform. Missouri, which approved its cannabis measure by six percentage points as of Wednesday morning, went for Donald Trump by at least 15 points in the 2020 presidential election. Maryland, which went for Biden by 33 points and approved its cannabis measure by about 30 points on Tuesday, was the bluest state in the country that had yet to legalize recreational marijuana.

The Missouri and Maryland measures were the only two of Tuesday’s five state-level marijuana initiatives to allow for record expungement by people previously convicted of marijuana-related activities that have now been legalized by voters. These states will now automatically expunge records for certain people, and make others fill out petitions. Missouri’s approach to prior convictions has been especially controversial, as some reformers fear it won’t be as effective in practice as on paper. The chair of the Legislative Black Caucus, plus some prominent cannabis advocates, came out against the ballot measure.

It’s relatively new that marijuana ballot measures would take this issue on at all. A decade ago, the reformist initiatives were focused squarely on the question of whether or not to legalize, and left questions of social equity, record expungement, banking and more for later on. 

“What’s happening now is there’s a far more detailed discussion taking place,” Tvert said. “There’s this growing sense that it’s inevitable that it will be legal, and so what should the details be?”

The two Dakotas took opposite paths to the same result this year. North Dakotans overwhelmingly rejected legal marijuana just four years ago, voting down a measure that, unlike this year’s, would have allowed for some record expungement. The previous North Dakota measure lost by 19 percentage points, while this year’s was losing by just 10 as of Wednesday morning. 

Fifty-four percent of South Dakota voters supported legal marijuana just two years ago, but after a lawsuit championed by Republican Governor Kristi Noem, who won reelection Tuesday, the state supreme court invalidated that measure. Given a chance to vote again on the issue, South Dakotans rejected it by a six-point margin.

The Arkansas measure looked little like the other four on the ballot this year, prohibiting home-grow of marijuana plants and placing a hard cap on cultivation and dispensary permits. More exclusive markets can perpetuate race and class disparity in who has access to the substance, and who is policed over it.

Market exclusivity was of chief concern to many who opposed Colorado’s ballot measure on psychedelics. Among these opponents were some of the organizers who pushed successfully for a 2019 Denver reform to decriminalize psilocybin mushrooms. They argued this year’s statewide measure, which allows for sale of approved psychedelics only by licensed providers, will benefit a small group of profit-seeking interests. “It’s opening the floodgates for corporations to come to Colorado to open their bougie life and healing centers,” one advocate who worked on the 2019 effort told The Denver Post. 

The post Wins and Losses for State Referendums to Legalize Weed and Psychedelics appeared first on Bolts.

Five states are voting on legalizing recreational marijuana, and most are staunchly Republican. The issue has long drawn support across the political spectrum, and these elections will again test the sense of a growing national consensus against marijuana prohibition. 

Even President Biden, who was a dedicated soldier in America’s war on drugs while a senator, is coming around. Last week he ordered a federal review of marijuana’s classification as a “Schedule 1” substance, defined as having h “no currently accepted medical use and a high potential for abuse,” and he pardoned an estimated 6,500 people with federal convictions for marijuana possession, plus thousands more convicted in the District of Columbia.

The national debate over the war on drugs is also shifting past marijuana. Colorado, which helped launch the wave of weed legalization a decade ago, is now considering a measure that would legalize psychedelics, emulating a reform adopted by Oregon in 2020. 

Bolts looks at the six state referendums, plus some intriguing local measures, that may affect drug policy this fall. 

Most measures would establish new state-regulated systems for the sale of marijuana or, in the case of Colorado, psychedelics, likely bringing in considerable new revenue into public coffers. 

But there is wide variance as to how they would handle people who have already been convicted over behaviors that could soon become legal. A review by Bolts shows that only two of the five marijuana referendums would set up expungement of past criminal records, which considerably saddle a person’s access to jobs and housing.

Arkansas | Issue 4: On legalizing marijuana

Arkansas could become just the second state in the South, after Virginia, to legalize marijuana for recreational use and sales. Issue 4 qualified for the ballot after a petition drive organized by the group Responsible Growth Arkansas, just six years after another citizen-initiated measure legalized medical marijuana. A September poll found wide support for the measure.

But Issue 4 is also raising concerns about inequitable design. The Arkansas Advocate found that Arkansas would have the strictest rules among the 19 states that have legalized recreational marijuana: It would be the only one to both prohibit home-grow operations and keep a hard cap on cultivation and dispensary permits, which experts predict would limit supply and competition, leading to higher prices at retail stores. A more exclusive market could also perpetuate race and class disparity in who has access to the substance, and who is policed over it.

Moreover, unlike in some of the other states with marijuana measures this year, Issue 4 does not provide for wiping clean the criminal records of people already convicted over marijuana.

Republican lawmakers are angry that organizations are using the initiative route to champion issues that they oppose, including the 2016 medical marijuana vote. They have placed another measure on the ballot that would make it harder for ballot measures to pass in the future.

Missouri | Amendment 3: On legalizing marijuana

Just north of Arkansas, Missouri has also legalized marijuana for medical use, and may now do the same for recreational use. 

Amendment 3, which also qualified for the ballot through a petition drive organized by the group Legal Missouri, would end existing state prohibitions on the possession of marijuana, set up a regulated sales system by distributing licenses via a lottery system, and allow home growth. Polling shows a closely divided electorate. 

Missouri borders eight states, only one of which (Illinois) has legalized recreational marijuana. Based on the experience of other states, that would presage an influx of out-of-state customers looking to buy legal marijuana in Missouri. But this could also cause new legal problems as these customers would be breaking the law the second they crossed back into their home states, where marijuana possession may be punishable by jail time. This has been a long-documented problem for people traveling into Kansas with weed from Colorado.

The Missouri amendment creates a path for people with marijuana convictions to expunge their records. But many marijuana advocates believe the ballot measure does not go far enough and are raising alarms. They stress that some people would be excluded from automatic expungement due to carve-outs or because they’re still serving time; they also note that the initiative would keep in place some criminal penalties, including for smoking marijuana in public. The chair of Missouri’s Legislative Black Caucus opposes Amendment 3 on these grounds. Organizations that support criminal justice reforms such as ACLU of Missouri and the Missouri Association of Criminal Defense Lawyers, are supporting it.

Maryland | Question 4: On legalizing marijuana

Going off of the results of the last presidential election, Maryland is the bluest state in the country that has yet to legalize marijuana. Question 4 would end that distinction and legalize the possession and retail sale of marijuana.

Maryland lawmakers placed it on the ballot as a constitutional amendment that does not need the governor’s signature. (Republican Governor Larry Hogan has vetoed bills related to marijuana in the past.) Lawmakers also passed implementing legislation earlier this year (House Bill 837) that would be triggered by the passage of Question 4; Hogan allowed the bill to become law without his signature. 

The legislation would automatically expunge the records of people who have been convicted of offenses that would be newly legal under the law. It would allow people who are presently incarcerated for marijuana possession to petition for immediate release. 

If Question 4 passes, lawmakers would still have a lot of blanks to fill in the next session, as HB 837 did not flesh out the regulatory details of marijuana sales. Progressive advocates and lawmakers have already signaled that building an equitable retail system is a prime concern and that they want dispensary licenses and tax revenue to be distributed in a way that helps the Black communities that have been disproportionately affected by the prohibition of marijuana. A report released by the Baltimore prosecutor’s office in 2019 found that Black residents of Baltimore were six times likelier than white residents to be cited for marijuana possession. 

North Dakota | Measure 2: On legalizing marijuana

North Dakotans overwhelmingly rejected a measure to legalize marijuana just four years ago. But proponents of legalization are hoping for a different outcome by highlighting a broad alliance: Measure 2 qualified after a petition drive organized by a coalition called New Approach ND, whose chair is a member of the Libertarian Party and whose treasurer is a police officer-turned-defense attorney. The measure’s sponsoring committee features lawmakers from both parties. 

The Republican-run state House already passed a legalization bill in 2021, though the bill later died in the Senate. Measure 2 picks up where that bill left off: It would legalize the possession and sale of marijuana, and also allow home growth of up to three plants.

The measure would leave a lot of regulatory rulemaking for the legislature to take care of, but it does stipulate that only 18 retail licenses would be granted to start. That may limit the circulation of marijuana in a very vast, if sparsely populated, state. 

Measure 2 would not allow for expungement of criminal records, unlike the 2018 measure that provided for automatic expungement. 

South Dakota | Measure 27: On legalizing marijuana

South Dakotans already said what they think about marijuana in 2020: 54 percent of voters approved a ballot measure to legalize its recreational use. But after a lawsuit championed by Republican Governor Kristi Noem, that measure was invalidated by the South Dakota Supreme Court the following year for breaching the state’s requirement that initiatives only pertain to one subject.

Advocates returned this year with a drive to qualify a new proposal for the ballot. Measure 27 takes a simpler approach than the 2020 initiative. It would not change the state constitution, for one. It would allow for the purchase and possession of marijuana, plus home-grows of up to three plants for personal use, but it would leave questions of taxation and regulatory structure to the state legislature.

And it would not set up a process for people to expunge their past convictions.

The marijuana debate has seeped into the governor’s race, as Democratic nominee Jamie Smith has denounced Noem’s efforts to overturn the 2020 initiative. Another South Dakota election that touches on drug policy is the ballot measure to expand Medicaid access to tens of thousands of people; enhanced health insurance can improve paths to treatment over substance use issues that are otherwise funneled into jail, which played a role in other recent referendums over Medicaid. 

Colorado | Proposition 122: On legalizing psychedelics

With Proposition 122, a voter-initiated measure once known as Initiative 58, Colorado may add to a new trend: Building off of a 2019 ballot measure in Denver, and a 2020 ballot measure in Oregon, the measure would remove criminal penalties for use, possession and home-grow of psilocybin (commonly known as “magic mushrooms”) and some other psychoactive substances. 

It would also set up a legally regulated system for state-regulated providers to sell psychedelics for a range of treatment and therapeutic purposes. 

Denver, the state’s capital city, did a version of this, and a government review panel that included law enforcement found no resulting threats to public safety. Some of the organizers of the Denver reform are now opposing  Initiative 58 because they fear the measure would specifically benefit a small handful of profit-seeking interests. “It’s opening the floodgates for corporations to come to Colorado to open their bougie life and healing centers,”  one advocate who worked on Denver’s decriminalization effort told The Denver Post. 

Local elections matter to drug policy, too

Under the hood of state statutes and prohibitions, localities retain vast powers to decide how aggressively to pursue the war on drugs. That, too, is at stake this year all around the country.

Colorado, for instance, is a home-rule state, meaning that towns and counties still have the authority to ban the sale of marijuana. Colorado Springs, the state’s second-largest city and the anchor of a historically arch-conservative region, has long resisted legal weed; residents cannot purchase it within the city, which misses out on all the local sales tax that other municipalities get to collect. Colorado Springs voters this year will decide Questions 300 and 301, which would enable recreational marijuana sales and tax them.

In Texas, where marijuana is illegal but where some liberal-leaning cities have asked the police to not enforce the statute, some towns like Killeen will weigh in on decriminalizing marijuana. 

And the war on drugs is also on the ballot in many elections for the law enforcement offices that have the power to make arrests or press charges over drugs—or refuse to do so. In many places, the debate still revolves around marijuana. The Democratic incumbent in Indiana’s Marion County (Indianapolis), for instance, has stopped prosecuting low-level possession but his Republican challenger is taking issue with that. “I do not want Indianapolis to become a San Francisco, to become a New York City, to become a Los Angeles,” she said at a recent forum.

Other candidates are promising to at the very least avoid jail time over drug offenses. And some reformers want to go further and keep the criminal legal system out altogether. Rahsaan Hall, running for prosecutor in Plymouth County, Massachusetts, says he won’t prosecute drug possession. “Those are not law enforcement issues,” Caitlin Sepeda, a nurse who narrowly lost the primary for sheriff in another Massachusett county in September, told Bolts last month. “Those are nursing issues. Those are social service issues.”

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Instead Arizona’s ballot will feature a trio of measures that would significantly undercut direct democracy and future initiatives. All were referred to voters by the GOP-run legislature.

The coalition behind the voting rights initiative, Arizona for Fair Elections, cried foul over the elimination of its measure while the three others got to proceed. “Certain politicians have been intentionally trying to attack the ballot measure process for over a decade to prevent voters from being able to make decisions about Arizona’s future at the ballot box,” it said in a statement.

Hundreds of miles away, progressives in Arkansas face similar heartburn. Voters there raised the minimum wage and legalized cannabis for medical use in 2016 and 2018; this year, they will weigh on cannabis for recreational use.  But here, too, GOP lawmakers have placed a measure on the ballot, Issue 2, that would make it harder for voters to circumvent them in the future. 

“You have people who are supposed to be public servants who are trying to prevent people from expressing their will at the ballot box,” David McAvoy, a progressive advocate and founder of the Arkansas-based group Protect AR Voices, told Bolts. “This is an attempt to weaken people’s votes.”

McAvoy believes that, with Issue 2, Republican lawmakers are retaliating against the minimum wage and marijuana measures approved by Arkansans. That dynamic is also operative in Arizona, where residents have used the initiative process in recent cycles to adopt policies that their GOP-run state legislature wouldn’t. Since 2016, they too have raised the minimum wage and legalized cannabis; they also increased taxes on the wealthy to raise teachers’ salaries and required employers to provide paid sick time to their employees. This remarkable streak angered Arizona Republicans, who have set out to shut the door on future efforts this year.

Kelly Hall, executive director of the Fairness Project, a national organization that supported the successful initiatives to increase the minimum wage in both Arizona in 2016 and Arkansas in 2018, is now fighting the latest ballot measures in each state. “If passed, these restrictions would further entrench minority rule in our political system and likely block popular policies from passing,” she told Bolts. “It’s absolutely essential that we protect the ballot measure tool so that people can continue to make progress when their elected officials will not.”

Ballot measures have come under assault nationwide, as Republican leaders have made parallel moves in many states to trip up voter-initiated referendums. The Ballot Initiative Strategy Center has tracked the introduction of dozens of bills in recent years, many of which have become law. Some of the more onerous restrictions imposed new geographic distribution requirements for petition-gathering, which tends to reduce the power of cities, or they made petition gathering far more impractical.

Republican leaders have also responded to successful ballot measures initiated by residents by undermining them. In 2018, Utah voters approved statutes that expanded Medicaid, legalized cannabis for medical uses, and created a nonpartisan redistricting process. But in 2019, the state legislature repealed all of them, though it then re-enacted a narrower version of Medicaid expansion. Maine’s former Republican governor ignored a successful ballot initiative to expand Medicaid for years. And last year, Mississippi’s conservative supreme court struck down the entire initiative process.

Arizona’s state constitution contains strong protections that prevent some of this gamesmanship. Most significantly, it severely constrains the state legislature’s power to repeal or amend statutes initiated and approved by voters. Lawmakers are prohibited from modifying any voter-initiated statute unless their change “furthers the purpose” of the statute itself; this shield was included in the Voter Protection Act, a voter-initiated constitutional amendment that passed in 1998. In addition, and unlike many states, Arizona has no requirement that initiatives be limited to a “single subject,” which opens the door for ballot measures that propose sweeping changes.

But the three constitutional amendments that state Republicans are proposing would upend this system. The first, Proposition 128, would amend Arizona’s constitution to widen the circumstances under which lawmakers may repeal or amend a ballot measure—even after it has already gained the electorate’s support.

The proposition would enable the legislature to change a ballot measure when courts strike down any part over it. Proponents say lawmakers’ hands are currently tied when it comes to fixing an initiative when that happens. Opponents answer that the proposition would give politicians wide latitude to intervene as they could amend any section of a text if one part is struck down. Athena Salman, a Democratic state Representative, called it that the change is “a very sneaky way to undermine the Voter Protection Act without actually having to repeal the Voter Protection Act.”

The second, Proposition 129, would impose a “single subject” requirement for all voter-initiated measures; it would impose no such requirement on amendments proposed by the legislature. Many state courts have applied similar requirements harshly—the South Dakota supreme court last year struck down an initiative that legalized marijuana on this basis—which may provide Arizona’s high court, which the GOP has packed in recent years, with another tool to invalidate voter initiatives. The third, Proposition 132, would raise the approval threshold from 50 percent to a supermajority of 60 percent for voter-initiated measures that would raise taxes.

Arkansas’s Issue 2 would also impose a supermajority requirement, and it would go further than Arizona’s proposal by raising the threshold to 60 percent for all ballot measures. 

“It is entirely too easy to amend our state constitution,” said state Representative David Ray, the Republican lawmaker who drafted the measure. Ray, much like Republicans in Arizona, has complained that out-of-state money is championing organizing around referendums in the state. (Lawmakers voted largely on party lines when they placed Issue 2 on the ballot.) 

Arkansas Republicans already tried to limit their state’s ballot initiative process two years ago with a more sweeping constitutional amendment, known as Issue 3, that appeared on the ballot in November 2020. But Arkansas voters rejected that measure 56 to 44 percent. 

That same year, the state supreme court had struck down two measures over organizers’ alleged failure to conduct criminal background checks on petition gatherers; Arkansas statutes require organizers to certify that each canvasser has never been convicted of a broad array of offenses, including low-level charges like trespass (the high court said organizers took insufficient steps to ensure this). One of these measures would have created an independent redistricting commission. Instead, Republican lawmakers got to draw new maps in 2021 that solidified their party’s hold on power.

Earlier this year, South Dakotans rejected a similar effort to demand a supermajority. Republican lawmakers put an amendment on the June ballot that would have raised the threshold for some referendums to pass; the GOP rushed that measure to change the rules in time to thwart an effort to expand Medicaid. But the measure lost 67 to 33 percent in June, which has kept alive the possibility that South Dakotans expand Medicaid in November; the measure now only needs 50 percent of the vote—a goal that similar initiatives have crossed in many red states in recent years. (Arkansas and Arizona expanded Medicaid legislatively a decade ago.)

“Sometimes, when you take issues away from, ‘Is it Democrat or Republican,’ and just let the people speak, you find that people may come at it with very different views than the political party that they’re otherwise drawn to,” McAvoy told Bolts.

McAvoy said some Arkansas conservatives allied with progressives in 2020 to defeat the measure proposed that year to limit citizen-led ballot initiatives. “This cuts both ways in terms of the detrimental effect on democracy,” he said.

“While it’s definitely in this case the Republicans in power who are trying to stop things they don’t want,” he added, “I think across the board we all need to be concerned about what it means for our democracy and for our abilities to be heard on any issue, regardless of where we stand on the specifics.”

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DeLay lost handily on Tuesday. Justice Karen Baker, an incumbent who has been on the court since 2011 prevailed 64 percent to 36 percent against DeLay, who is a lower-court judge.

In the state’s other contested supreme court election, though, Justice Robin Wynne fell just short of the 50 percent threshold that would have won him an additional term outright and avoided a runoff election. With 99 percent of precincts reporting, he received 49.6 percent, with Chris Carnahan, the former longtime chair of the Republican Party, at 29 percent, and David Sterling, another right-wing candidate, at 22 percent.

Wynne, a former Democratic lawmaker, and Carnahan will now move to runoff, giving conservatives another shot at picking-up a seat.

Judicial races are technically nonpartisan in Arkansas. But conservatives pushed to oust Baker and Wynne this year and lock in right-wing dominance on the court with challengers who have close GOP ties. Many supreme courts are seeing similar tussles for power this year.

The Arkansas supreme court is already no refuge for civil rights. In April, it dismissed a lower-court ruling that had stayed a series of new Republican restrictions on voting rights. Weeks later, in a 4-3 ruling, the court’s most conservative justices eroded the rights of plaintiffs to seek tort remedies. But the court occasionally issues opinions that anger state conservatives, who have come to dominate all other state institutions.

In April, the court enabled a school district to impose a mask requirement, reversing a lower court’s restraining order that had blocked it. DeLay used the ruling as part of his arsenal of attacks against Baker.

DeLay also attacked Baker for a vote that she took in 2019 to vacate a murder conviction; the court had decided, in a 4-3 opinion written by Baker, that a charge had been filed in the wrong jurisdiction. Carnahan also used the issue of capital punishment to attack his opponent. In one campaign mailer, he named “the implementation of the death penalty” as one of the issues that has “suffered in Arkansas because of Justices that don’t stay in their lane.” In 2018, the court issued two narrow 4-3 rulings that overturned the state law that governed how Arkansas decides whether a defendant is mentally competent to be executed, holding that it violated the due process of two death-row prisoners. 

“There is no consistent progressive voice on the court,” said Jay Barth, a professor emeritus at Hendrix College who was recently appointed director of the Clinton Presidential Library and Museum. “It is a battle between moderates and conservatives.” 

Over the past decade, conservative candidates shifted the court rightward by winning court seats after ideologically-charged campaigns, fueled by dark money from right-wing groups.

Baker and Wynne, Barth said, are now part of an inconsistently moderate three-person wing that a fourth justice sometimes joins. The court still has “a little bit of swing,” he quipped, meaning that it is still prone to side with plaintiffs on somes cases that touch on civil rights or criminal defense. 

That would end if  Baker and Wynne were ousted, Barth told Bolts before the election, and “the court would not be seen as a real option” for such litigation.

Carnahan, DeLay, and Sterling all promised to steer the court further to the right—and Carnahan will still have his shot in the June runoff. In candidate questionnaires for the Family Council, an Arkansas-based conservative group, they all named former President Donald Trump and U.S. Supreme Court Justice Clarence Thomas as their political and judicial models. 

DeLay’s campaign material highlighted a conservative Who’s Who, including former Governor Mike Huckabee, whose daughter is the favorite to become the state’s next governor, and Gun Owners of Arkansas. He told the press that Baker was part of a “liberal, left wing of the court.” His Facebook page features a video promising to protect the “right to bear arms.” 

It also displays a picture of him posing next to a logo of the organization Arkansans for Life.

A former Republican lawmaker, DeLay introduced a bill soon after he arrived at the state House in 1995 to restrict abortion righs. “I think we should drop the pretense,” he told the Associated Press. “My history is what it is.” 

The court has issued few decisions pertaining to abortion rights in recent years, and Arkansas already adopted a near-total ban on abortions last year that would take effect if the U.S. Supreme Court overturns Roe vs. Wade.  But in 2020, in a case involving the murder of a pregnant woman, the court struck down prosecutors’ effort to use the death of an “unborn child” as an aggravating factor in sentencing. The ruling drew a vigorous dissent from conservative Justice Rhonda Wood, who argued that Arkansas law enabled the defendant to be sentenced for “the death of more than one person.”

In a state otherwise dominated by Republicans, who are heavily favored to retain control of the state government in November, a supreme court that conservatives have tried to push even further to the right could face new questions around pregnancy-related state crimes if Roe falls. A redistricting lawsuit also looms for the court to consider in the future. DeLay’s defeat dampens the chances that the right seizes unmitigated control on the court, but the November runoff between Wynne and Carnahan could still remove one of the few checks on the state’s most conservative forces.

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The filing period for candidates to run for prosecutor closed in five states over the past month, adding clarity to the question of where the midterms may shake up the criminal legal system’s status quo. With primaries looming as early as May, criminal justice reformers are pressing their case from North Carolina’s biggest cities to Omaha and the Portland suburbs.

Public defenders and legal aid advocates are running in Arkansas, Nebraska, and Oregon, enlivening proceedings in places like Little Rock and Salem that have not seen a contested election in decades. In North Carolina, where racial justice protests drew thousands into the streets in 2020, challengers are now running on reform promises. And Utah brings the uncommon sight of a Republican reform incumbent who faces a tough-on-crime challenger. 

But away from those fireworks, the filing deadline is more often than not the end of the road for a prosecutor election, as most races only drew one candidate. In Oregon, whose filing deadline passed on Tuesday, just two of 15 DA elections feature multiple contenders. 

The situation is only slightly less desolate in Arkansas and North Carolina, where filing deadlines passed last week. Roughly one-third of their elections will be competitive this year. In each of Nebraska and Utah, the two most populous counties at least will have contested elections. (In Texas, as Bolts reviewed last month, 76 percent of elections are uncontested this year.)

Still, those elections that will be contested offer rare opportunities to confront local injustices. Arkansas, for instance, has a unique law that criminalizes falling behind on rent, empowering local prosecutors who choose to use it. And North Carolina allows children to be prosecuted at an unusually young age, though the state reformed its statutes last year. 

Below is Bolts’s preliminary guide to the prosecutor elections in those five states.

Arkansas

Larry Jegley has been the prosecutor in the state’s most populous judicial district (Perry and Pulaski counties, home to Little Rock) since 1997, and yet he has never faced an opponent—not once, over eight elections. This year Jegley is retiring, and voters will get a choice for the first time in decades. And it may be a historic election: Alicia Walton is running to become the first Black prosecutor in the history of a district whose population is 37 percent Black.

Walton, a public defender, vows to reform what her website calls a “fundamentally flawed” criminal legal system. Her opponent Will Jones is the chief deputy prosecutor in a neighboring district who worked under Jegley for more than a decade. 

Another public defender, Sonia Fonticiella, is running for prosecutor in the eastern part of the state, in a district that covers Clay, Craighead, Crittenden, Greene, Mississippi and Poinsett counties. She will face deputy prosecutors Martin Lilly and Corey Seats. And in Northwest Arkansas (Madison and Washington counties), incumbent Matt Durrett faces Stephen Coger, who says incarceration is too high in the district and that he would change bail and jail practices, though Coger also attacks Durrett for being too lenient toward people accused of higher-level crimes.

The state has five other contested races, all in smaller jurisdictions (twenty districts drew only one candidate). The full list of candidates is available here.

These are nonpartisan elections scheduled for May 24.

Nebraska

Each of Nebraska’s 93 counties will elect its prosecutor this year, but stakes are highest in the only two counties with at least 100,000 residents with a contested election.

Both races pit a Republican incumbent against a Democratic challenger who proposes some reforms in counties that went for Joe Biden in 2020. In Lancaster County (Lincoln), County Attorney Pat Condon faces Adam Morfeld, a former lawmaker who founded the progressive organization Civic Nebraska and helped lead efforts to expand Medicaid in the state.

But the state’s premier battle is in Omaha: Douglas County Attorney Don Kleine switched to the GOP two years ago after the Democratic Party accused him of furthering white supremacy; he had brought no charges against the man who killed James Scurlock, a Black protester. In November, Kleine will face Democratic challenger Dave Pantos, the former director of Legal Aid of Nebraska, whose platform is largely centered on reform themes.

North Carolina

Mecklenburg (Charlotte) and Wake (Raleigh) counties, each jurisdictions of more than one million people, mirror one another this year. 

In each, a Democratic DA is seeking re-election but must face a defense attorney in the May primary. In Charlotte, challenger Tim Emry has been part of the local coalition Decarcerate Mecklenburg, which has sought to reduce jail population during the COVID-19 pandemic; he faces DA Spencer Merriweather. In Raleigh, Demon Cheston, whose criminal defense practice involves capital punishment cases, is challenging DA Lorrin Freeman. Cheston and Emry are each running on progressive platforms that include never seeking the death penalty and accountability for police officers who lie or commit misconduct. During the Black Lives Matter protests of 2020, Charlotte and Raleigh drew thousands of protesters who demanded action against racial injustice and more accountability for the police. 

Other populous North Carolina districts are hosting competitive DA elections as well.

In Forsyth County (Winston-Salem), the race will come down to the November general election. In this county that voted for Biden by 14 percentage points, Republican DA Jim O’Neill will face Democrat Denise Hartsfield, a retired judge who is also a former prosecutor and attorney with the Legal Aid Society.

There are also Democratic primaries to watch in Buncombe (Asheville), Durham, and Guilford (Greensboro) counties, though some of the candidates who filed do not appear to be running active campaigns as of publication. In Buncombe, the incumbent faces tough-on-crime attacks from at least one challenger.  In Durham, two defense attorneys filed to run against DA Satana Deberry, who has built a reformer profile, rolling out bail reform and clearing thousands of old fines and fees. Deberry testified in Congress earlier this week on behalf of progressive prosecutors. “Stop pretending reform is the real threat to public safety,” she said.

The North Carolina primaries are on May 17th. The full list of candidates is available here.

Oregon

Even by low national standards, Oregon has a striking problem with democracy when it comes to its DAs. It has long been marred by a pattern of DAs resigning shortly before their terms conclude—with governors filling the resulting vacancies by appointing deputy prosecutors who then get to face voters as incumbents. That dynamic struck again in 2022, though only in one county. What’s more shocking is that only two elections out of 15 drew multiple candidates.

At least both of those races offer voters a real choice on the direction of local criminal justice policy.

Populous Washington County, right next to Portland, features a clear-cut divide between DA Kevin Barton and challenger Brian Decker, a public defender who is active in various reform drives and advocates for investing in programs that fall outside the criminal legal system. Barton is attacking Decker’s views as “dangerous” and holding up neighboring Portland, which is led by a reform-minded DA, as a boogeyman. (Barton’s 2018 election featured a similar contrast, and he won with some ease after an uncommonly expensive campaign.) Further south, in Marion County (Salem), public defender Spencer Todd is challenging DA Paige Clarkson, saying he wants to turn the page of “tough on crime” policies. Marion County has not had a contested DA race since at least the 1990s.

Oregon’s DAs are notoriously active in opposing criminal justice reform legislation, making these elections meaningful for statewide policy as well. However a coalition of three reform DAs formed in the wake of the 2020 elections, with the new DA of Multnomah County (Portland) banding together with those of smaller Deschutes and Wasco counties to defend reform bills. But the group is set to lose one of its three members as Deschutes County DA Jon Hummel is retiring. He will be replaced by Steve Gunnels, a longtime prosecutor who is the only candidate who filed. (The Multnomah and Wasco DAs are not on the ballot this year.) 

Oregon’s DA elections are nonpartisan elections that are scheduled for May 17. The full list of candidates is available here.

Utah

David Leavitt is the rare Republican prosecutor who grabs headlines for championing criminal justice reform. As county attorney of Utah County, he established new diversion programs after he came into office, and last fall he announced he would no longer seek the death penalty. “It simply demonstrates our societal preference for retribution over public safety,” he said of capital punishment in a public release. 

Leavitt’s re-election race will test the GOP’s appetite for such changes. He faces Jeffrey Gray, an assistant Utah solicitor general who touts his ties to law enforcementand promises to bring back the death penalty if elected. 

Over in Salt Lake County, Democratic prosecutor Sim Gill triggered a national furor during the Black Lives Matters protests of 2020, filing gang enhancements against protesters accused of spilling red paint in front of his office, which threatened sentences of up to life in prison (the charges were later amended). Protestors were criticizing Gill’s decision to decline charges against officers who killed 22-year-old Bernardo Palacios-Carbajal earlier that year. But Gill is in relatively good shape in his reelection bid this year; he drew no challenger in the Democratic primary, which can be decisive in this blue-leaning jurisdiction. Republican challenger Danielle Ahn has no campaign website or campaign account as of publication.

Utah only has two other contested prosecutor races: one in Washington County where a GOP incumbent faces a Libertarian challenger, and one in the very sparsely populated Grand County.

The primaries will be held on June 28, followed by the November general elections. The full list of candidates is available here.

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