By Daniel Caballero
Mar 16, 2023, 10:15 AM

In November 2022, South Dakotans went to the polls for federal, state, and local elections.  Most of the dots included on each ballot had a candidate’s name with the accompanying “R” or “D.”  But in 2022, there was one set of dots with no names or symbols of party allegiance.  Instead, there was a short summation of a proposed amendment (“Amendment D”) to the state’s constitution along with a summary of Amendment D’s fiscal impact on the state’s budget and “Yes” or “No” options.  Amendment D ultimately passed with 56 percent of the vote.  South Dakota became the thirty-ninth state to approve an expansion of Medicaid¹Medicaid is a federal-state cooperative health insurance program that serves pregnant women, the disabled, indigent families, and now, childless indigent individuals.  Medicaid is often confused with Medicare.  Although Medicaid does provide important health benefits to elderly people, Medicare is the primary health insurance program for those 65 years and older. eligibility and the seventh state to do so via ballot initiative.²In 1898, South Dakota became the first state to adopt the ballot initiative process.  The most recent state to implement this form of direct democracy was Mississippi in 1992.

The success of Medicaid expansion ballot initiatives shows that direct democracy can counter partisan representative decision-making.  But state legislators are starting to fight back against Medicaid expansion specifically and direct democracy generally.

Direct Democracy: A Summary of Ballot Initiatives

Twenty-four states have ballot initiatives that allow citizens “to bypass their state legislature by placing proposed statutes and, in some states, constitutional amendments on the ballot.”  Although no two states have the exact same requirements for initiatives to be put on a ballot, the National Conference of State Legislatures (“NCSL”) summarizes the general process:

1. A preliminary filing of a proposed petition with a designated state official;
2. Review of the petition for conformance with statutory requirements and, in several states, a review of the language of the proposal;
3. Preparation of a ballot title and summary;
4. Circulation of the petition to obtain the required number of signatures of registered voters, usually a percentage of the votes cast for a statewide office in the preceding general election;
5. Submission of the petitions to the state elections official, who must verify the number of signatures; and
6. If the required number of valid signatures are obtained, the question gets placed on the state’s ballot.³As the NCSL notes, however, in states with an indirect process, the signatures are sent to the state legislature.  Further, while the general requirement for passage is a majority vote, some states have implemented other requirements.

Medicaid Expansion via Ballot Initiatives

With respect to Medicaid, the Patient Protection and Affordable Care Act of 2010 (“ACA”) is the most significant piece of Democratic legislation in the twenty-first century.  In 2022, the U.S. Department of Health and Human Services released a report finding that 21 million people were able to enroll in Medicaid because of the ACA’s expansion of eligibility.⁴See Patient Protection and Affordable Care Act of 2010 Pub. L. No. 111-148, § 2001, 124 Stat. 119, 271 (2010) (codified as amended at 42 U.S.C. § 1396d).  But not all states benefit from this change.  In NFIB v. Sebelius,⁵567 U.S. 519, 580, 585 (2012). the United States Supreme Court held that states could choose to either adopt the ACA’s expanded Medicaid eligibility rules or keep the older, more restrictive rules.  Initially, many states turned down the offer; every one of them had Republican-controlled legislatures or Republican governors.⁶As of this writing, thirty-nine states and Washington, D.C., have adopted the Medicaid expansion.  But while the ACA had a rocky start in terms of execution and public perception, by 2017, most Americans viewed the legislation favorably.  But some state officials continue to oppose Medicaid expansion and have strongly resisted voters’ attempts to implement it.

Take Maine, for instance.  In 2017, Maine’s Democratic state legislature passed legislation expanding Medicaid on five occasions.  Each time, Republican Governor Paul LePage vetoed it.  In response, grassroots organizers secured over 60,000 signatures and put the issue directly to voters.  When the initiative passed with 59 percent of the vote, the Governor vetoed legislation to fund the program.  And when funding was secured, he simply refused to execute the program.  After receiving a court order to execute the program,⁷See Me. Equal Just. Partners v. Hamilton, No. BCD-AP-18-02, 2018 WL 3702245, at *7 (Me. Super. Ct. June 4, 2018). the Governor fulfilled his mandate to submit a formal letter to the federal government to request Medicaid expansion.  In the letter’s first sentence, he asked for a rejection of the state’s application.  In a final act of defiance, the Governor delayed implementation until after the end of his term.

Maine was the first of several states to use direct democracy to expand Medicaid despite opposition from elected representatives.  In 2018, Idaho, Nebraska, and Utah voters approved an expansion; in 2020, Oklahoma and Missouri followed suit.

But Maine’s Medicaid expansion process showed that elected officials are unafraid to fight back against voters.  Missouri’s state legislature took a page out of Governor LePage’s playbook.  After voters approved a constitutional amendment to expand Medicaid, the state refused to fund it.  After being sued for failing to implement the program, the state legislature argued before the Missouri Supreme Court that the ballot initiative was unlawful.⁸See Doyle v. Tidball, 625 S.W.3d 459 (Mo. 2021) (en banc) (per curiam).  The Court rejected the legislature’s argument, and on remand, a lower court ordered the legislature to implement the program immediately.⁹See Doyle v. Tidball, No. 21AC-CC00186-01, 2021 WL 4205081, at *1 (Mo. Cir. Ct. Aug. 10, 2021).  But the state still delayed implementation.  The program remains severely underfunded and has a significant backlog of applications.

The Voter Becoming the Political Rival:  State Legislatures Fighting Back

But state officials have not stopped at simply obstructing Medicaid expansion.  In the wake of these successful campaigns and other “liberal” ballot initiatives, state legislators have looked to clamp down on democratic processes that circumvent their authority.

For example, shortly after Idaho voters approved Medicaid expansion, the state legislature enacted a law that placed onerous requirements for initiatives to get on the ballot.¹⁰See S.B. 1110, 66th Leg., 1st Reg. Sess. (Idaho 2021).  Previously, initiatives needed signatures from six percent of voters in eighteen of the state’s thirty-five legislative districts.  But in the wake of Medicaid expansion, the new law required signatures from six percent of voters in every district.  The Idaho Supreme Court, however, ruled that the law was unconstitutional because it made the exercise of the state constitutional right to direct democracy impracticable.¹¹See Reclaim Idaho v. Denney, 497 P.3d 160, 185-92 (Idaho 2021).  Specifically, the state supreme court found that the state legislature exceeded its authority to regulate the conditions and manner of the state’s citizens to exercise their legislative power via ballot initiatives.¹²See id. at 180-85.

Further, the year after Utah voters expanded Medicaid, state legislators passed a law that delayed the implementation of all successful ballot initiatives until at least sixty days after the end of the next legislative session.¹³2019 Utah Laws Ch. 206.  If taxes had to be levied to pay for the initiative, implementation would be delayed even longer—until January 1 of the following year.  State legislators justified this measure as necessary to give themselves time to “fix” what their constituents had passed before implementation.  A small minority of legislators objected and argued that these new rules carried an air of unjustified legislative superiority and paternalism.

Direct democracy initiatives were first enacted at the turn of the twentieth century to address deficiencies in legislative responsiveness.¹⁴See Richard Briffault, Distrust of Democracy, 63 Tex. L. Rev. 1347, 1348 (1985) (reviewing David B. Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (1984)).  The success of Medicaid expansion through ballot initiatives is a prime example of how direct democracy should work.  In the 2022 elections, South Dakotans voted overwhelmingly for Republican representation.  But through a ballot initiative, they successfully enacted a program that their Republican-dominated legislature had rejected earlier that year.

***

In the current hyper-partisan political climate, these successful initiatives show that voters are not as party-oriented as their representatives.  State legislators could take these initiatives as signals that their political positions are out-of-tune with their electorate’s.  But rather than being receptive to these powerful democratic expressions of policy preferences, these legislators are striking back.  The voter has become their political rival.

References:

• 1
  Medicaid is a federal-state cooperative health insurance program that serves pregnant women, the disabled, indigent families, and now, childless indigent individuals.  Medicaid is often confused with Medicare.  Although Medicaid does provide important health benefits to elderly people, Medicare is the primary health insurance program for those 65 years and older.
• 2
  In 1898, South Dakota became the first state to adopt the ballot initiative process.  The most recent state to implement this form of direct democracy was Mississippi in 1992.
• 3
  As the NCSL notes, however, in states with an indirect process, the signatures are sent to the state legislature.  Further, while the general requirement for passage is a majority vote, some states have implemented other requirements.
• 4
  See Patient Protection and Affordable Care Act of 2010 Pub. L. No. 111-148, § 2001, 124 Stat. 119, 271 (2010) (codified as amended at 42 U.S.C. § 1396d).
• 5
  567 U.S. 519, 580, 585 (2012).
• 6
  As of this writing, thirty-nine states and Washington, D.C., have adopted the Medicaid expansion.
• 7
  See Me. Equal Just. Partners v. Hamilton, No. BCD-AP-18-02, 2018 WL 3702245, at *7 (Me. Super. Ct. June 4, 2018).
• 8
  See Doyle v. Tidball, 625 S.W.3d 459 (Mo. 2021) (en banc) (per curiam).
• 9
  See Doyle v. Tidball, No. 21AC-CC00186-01, 2021 WL 4205081, at *1 (Mo. Cir. Ct. Aug. 10, 2021).
• 10
  See S.B. 1110, 66th Leg., 1st Reg. Sess. (Idaho 2021).
• 11
  See Reclaim Idaho v. Denney, 497 P.3d 160, 185-92 (Idaho 2021).
• 12
  See id. at 180-85.
• 13
  2019 Utah Laws Ch. 206.
• 14
  See Richard Briffault, Distrust of Democracy, 63 Tex. L. Rev. 1347, 1348 (1985) (reviewing David B. Magleby, Direct Legislation: Voting on Ballot Propositions in the United States (1984)).