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Saturday, September 30, 2023

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Opinion | Republicans did something most people didn’t like, so they’re changing the rules

When former South Carolina governor and U.N. ambassador Nikki Haley announced her candidacy for the Republican presidential nomination in February, she said the party had “lost the popular vote in seven of the last eight presidential elections.” That “has to change,” she said.

Her fellow Republicans appear to disagree. Across the country, Republican officials and activists have dropped any pretense of trying to win over a majority of voters. Last week, for example, top Republican lawyer, strategist and fundraiser Cleta Mitchell told RNC donors that conservatives must limit voting on college campuses and tighten voter registration and mail-in ballot provisions. Only then, she said, can Republicans level the playing field for the 2024 presidential election. “The left rigs the electoral system to favor one side — their side,” she said in her speech. “The very existence of our constitutional republic is at stake.”

Republican hostility to elected government is most evident on issues where the majority strongly opposes conservative orthodoxy. Instead of trying to convince voters or compromise legislation, much of the Republican Party has made a conscious decision to insulate itself as much as possible from voter and popular grievances.

Of course, none of this is new. The first major wave of Republican voter restriction came in 2011, following Tea Party-driven elections the previous year. Two years later, the Supreme Court unwound a key part of the voting rights law in Shelby County v. Holder. It’s been more than 10 years since Republicans in Wisconsin gained a near-insurmountable legislative majority through unfair district elections.

Yet there is still room for innovation, and over the past year Republicans have opened up new fronts in the battle for minority rule. One element of these movements, the aggressive struggle to limit the scope of the referendum process, stands out. Whenever possible, Republicans want to raise the threshold for winning a ballot initiative from a majority to a supermajority, or — if such a threshold already exists — add other hurdles to passage. It’s a sudden change from decades ago, when Republicans used referendums to build support and enthusiasm for social and economic issues among voters.

Initiatives and referendum processes were conceived in the early 20th century to circumvent unrepresentative and recalcitrant legislatures. In the year since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health, voters have used both to do just that. As my newsroom colleagues Kate Zernick and Michael Wins pointed out Sunday, “After the Supreme Court overturned Roe v. Wade last year, voters fought back decisively, approving a new law in all six states where they appeared. A ballot measure that establishes or preserves abortion rights.”

Facing public opposition to their unpopular views on abortion, Republicans have three options: prove to voters that strict abortion restrictions are worthwhile; compromise and bow to public opinion; or change the rules so their opponents cannot protect abortion rights Against the wishes of a legislature that wanted to ban the program.

You know how it goes.

Ahead of efforts to enshrine abortion rights into the state constitution, Ohio Republicans are advancing a ballot measure that would raise the bar for passage of such a measure to 60%. If they get their way, the measure could go to voters in the August special election (after Ohio Republicans opposed the August special election). The new rule, which requires a supermajority, requires only a simple majority to pass.

Following successful ballot initiatives in 2020 and 2022 to expand Medicaid and legalize recreational marijuana, Missouri Republicans also want to institute new supermajority requirements for ballot measures. One proposal requires 60 percent of the vote; the other two require two-thirds. A related proposal would require any ballot initiative to receive a majority in half of Missouri’s 34 state Senate districts, most of which are sparsely populated. Essentially, it would create an Electoral College for voting initiatives.

Republicans in Florida want to raise the threshold for their state to pass a ballot initiative to amend the constitution from 60% of the vote to nearly 67%. Republicans under Gov. Sarah Huckabee Sanders only passed the changes after voters in Arkansas rejected a bill to impose new restrictions on future ballots. Laws, using legislatures to do things they can’t do with ballot bills.

One caveat here is the supermajority threshold for legislation, whether inside or outside the legislature. A common defense of the vast majority of thresholds is that it is a tool for building or encouraging consensus. But as Alexander Hamilton commented on the Articles of Confederation—consensus, even unanimity, was required for the Confederate Convention to act—”letting the few negatively affect the many so) a decision) in its tendency to subordinate the feeling of the majority to the feeling of the minority.” In other words, a supermajority requirement is more akin to a minority veto than a consensus-promoting technique.

There are times and circumstances in which it is justified to require an absolute majority. But the Republican majority rule against the ballot initiative does not consider the best way to structure public direct legislation. They’re thinking about the best way to block voters’ efforts to stop abortion (or legalize marijuana or provide health insurance for working people) as if all the power belonged to them rather than the people.

As a governing unit, state legislatures are both unusually powerful, with broad discretion over broad areas of public policy, and exceptionally vulnerable to partisan and ideological prey through luck, timing, and overt manipulation of rules. Part of the political story of the past decade (and even earlier) has been how the Republican Party and the conservative movement have used these facts to their advantage.

Through gerrymandering, Republicans in several otherwise hotly contested states have built a nearly impenetrable wall around their legislative majorities. By restricting voting, they can keep as many of their opponents out of the ballot box as possible. With fanciful doctrines like the so-called doctrine of independent national legislatures, they can have an excuse to amass more power to influence elections—even if the Supreme Court rejects the theory in its strongest form. If all of this is not enough to tilt the playing field, as we have seen, Republicans can change the rules and initiatives of the referendum to limit direct decision-making by voters.

One of the many self-justifying myths about the anti-majority character of the American political system is that they exist to reduce or prevent “the tyranny of the majority.” Americans today may want to remember something the Framers never forgot: Worse than the tyranny of the many is the tyranny of the few.

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