The reason Texans can’t vote on abortion and weed

Hint: The Legislature could give us the chance if it wanted.

By Gus Bova, Texas ObserverNovember 9, 2023 9:45 am, ,

From the Texas Observer:

On Tuesday evening, Ohioans resoundingly passed a pair of ballot measures to provide constitutional protection for abortion and legalize recreational marijuana use. Like Texas, Ohio is a GOP “trifecta” state with Republicans in full control of state government, and the Buckeye State backed Trump in 2020 by an even wider margin than did Lone Star denizens. Despite Ohio’s apparent redness, ordinary citizens gathered hundreds of thousands of signatures to put Tuesday’s measures on the ballot. Voters blew off the views of their state GOP leaders—even clobbering an August effort by lawmakers to raise the bar for passing the abortion measure—and secured for themselves a pair of popular rights.

“They like to say we’re conservative—they like to count us out—but what we know about Ohioans is that you can’t count us out,” Elizabeth Chasteen Day, organizing director with the American Civil Liberties Union of Ohio, told the Ohio Capital Journal in celebration of the results. A mother at an election watch party added: “I have a daughter and I really want to make sure that she has more rights than we do, not less rights.”

As a Texan, perhaps you’re wondering about now why you haven’t been given a similar chance to protect yourself from coerced birth or prison time for pot possession. In the Lone Star State, where one in 11 Americans live, abortion is illegal save for narrow medical exceptions, and marijuana possession or sale can lead to decades behind bars. And you, as an ordinary Texan, can’t change these laws in the way Ohioans did because of an old and arcane little power bestowed on the people by some U.S. states but not by others called the citizen initiative.

Nationwide, about half of states empower ordinary citizens to collect signatures and force a statewide vote on proposed constitutional amendments or statutes. Generally, these states also authorize a similar process for voters to undo laws made by their legislatures. These plebeian-friendly polities are concentrated in the American West, but they straddle the partisan divide. South Dakota, Nebraska, Utah, and Montana—all states more Trumpian than Texas—join California and Oregon in empowering their citizens, along with Missouri, Florida, and of course Ohio.

The list of policies achieved through citizen initiatives is enough to send a Texas liberal on a Zillow binge. In 2022, Michiganders protected abortion and made voting easier while Missourians legalized weed, Nebraskans raised their minimum wage, and North Dakotans limited their governors to two terms (Texas Governor Greg Abbott, mind you, is enjoying his third term). Two years prior, Oklahomans expanded Medicaid, and Arizonans passed an income tax on the wealthy. In other recent elections, Nevadans approved automatic voter registration, Mainers increased campaign finance transparency, and Arkansans expanded alcohol sales. The litany of states that have increased their minimum wage through initiatives includes Florida and South Dakota while the Medicaid expansion list includes such bastions of godless communism as Idaho and Missouri.

Yet, here in Texas, abortion and weed are criminalized, the minimum wage remains $7.25, and we have the highest medically uninsured rate in the country.

For Texans to gain a direct say in changing these policies, the GOP-run Texas Legislature would need to pass a proposed constitutional amendment, which voters would then need to approve. (This yay-or-nay procedure is the only statewide policy-making power that regular Texans currently enjoy; voters weighed in on 14 such proposals from the Legislature Tuesday). One reason the Lege doesn’t want to give voters the initiative is fairly obvious: It would mean relinquishing some power—and giving interest groups a way to pass laws without lining elected officials’ pockets.

In other words, ruling parties tend not to see directly empowering the ruled as beneficial. “If you’re out of government, you’re in favor of initiatives,” former Texas Land Commissioner Jerry Patterson, a Republican, told the Associated Press in 2018. “If you’re in government, they become not so appealing.”

Another reason for Lege inaction: Given the chance, Texans would almost certainly pass policies their GOP leaders oppose. Polling by the Texas Politics Project at UT-Austin shows far more registered voters approve than disapprove of expanding access to abortion, while supermajorities favor liberalizing weed laws, raising the minimum wage, and expanding Medicaid.

The reason that many liberal policy views prevail in such a red state is that many Texans vote for Republican candidates based on other issues like public safety, immigration, or taxes. At the very least, opening up the ballot would likely embarrass the state’s present leaders, who can currently pretend their policies are more popular than they are. To put things more bluntly, the Texas Legislature manifestly does not care whether a pregnant woman was raped, if a young Black man’s life is derailed for nonviolent drug possession, or whether a Latino child’s family can afford health insurance; Texans, on the other hand, may actually care quite a bit.

“There are those occasions under our form of government when the interests of the represented and the interests of the representatives are at odds,” reads a quote attributed to a former Tyler City Council member in a 2001 journal article published by the conservative Texas Public Policy Foundation. “The Initiative is the means by which the represented assure that their interests ultimately prevail.”

Nearly all states that allow citizen initiatives adopted the policy at a unique juncture in history: the Progressive Era, a period of good-government reforms around the turn of the last century that took aim at the rampant corruption of the Gilded Age. Texas itself came close. In 1912, Texans amended their constitution to allow for “home rule” cities, which have since enabled citizen initiatives at the municipal level on local matters. In 1913, the Legislature agreed to let Texans vote to create statewide citizen initiatives, but the proposal was narrowly defeated. Some pro-initiative advocates actually celebrated the result—because the measure contained unusually onerous signature requirements—erroneously thinking they could win a better version later on, according to a scholarly book published in 1989.

In 1978, a California ballot initiative that capped property taxes sparked renewed interest in the Lone Star State. GOP gubernatorial candidate Bill Clements, during his successful ’78 campaign, backed making the reform in Texas. The Texas Republican Party voted in favor of creating citizen initiatives, too—at a time, of course, when Democrats still dominated the Legislature. The Democratic Lege declined to enact the Progressive reform.

The issue stayed alive for a couple of decades yet, with Democratic Lieutenant Governor Bob Bullock convening an interim Senate committee to study the matter in 1996. That committee’s report traced the citizen initiative concept all the way back “at least as far as ancient Athens, the assemblies of the Saxon tribes, and the plebiscite in the Roman Republic.” The committee, chaired by then-Senator and now-Secretary of State Jane Nelson, concluded that citizen-initiative power is “ideologically neutral” and “has been used equally by conservatives and liberals to address virtually every type of issue.” The body recommended that the Legislature propose a constitutional amendment allowing for initiatives—but, with Republicans on the cusp of completing their Texas takeover, the measure died in the following legislative sessions.

For two decades now, the initiative issue has been largely dormant in Texas, though Democratic Senator Nathan Johnson did file an updated version of the proposed constitutional amendment in this year’s regular legislative session. The bill did not get a hearing.

Progressive criticisms of citizen initiatives do exist. California, in particular, sees a high volume of expensive ballot campaigns that some say can be hijacked by corporate interests. And prior to the Supreme Court’s 2015 decision to legalize same-sex marriage, citizen initiatives to ban such unions passed in states including Florida and Missouri. But most successful initiatives in recent years have fallen on the side of progress. A review of lists maintained by the Initiative and Referendum Institute suggests the process tends to favor broad-based material benefits like wage increases and health insurance expansion, along with quality-of-life enhancements like legal drugs and populist measures that stick it to the political class like term limits, whereas broader types of decriminalization, tax increases, and environmental policies that might impinge on jobs or hobbies may be harder sells. Mainers, for example, expanded Medicaid in 2017 but, a few years prior, shot down restrictions on bear hunting.

Given the power, polling suggests Texans would join other red-state denizens in providing themselves with health insurance, higher wages, and at least some degree of legal weed and abortion access. They might also repeal particularly deranged acts of the state legislature like the 2021 “bounty hunter” abortion law. They might go further, attempting to pass policies like mandatory paid sick leave and rest breaks for employees—policies the legislature wants to be illegal—or even unwise proposals hamstringing taxation or educational curriculum. But for most Texans, any risks likely pale in comparison with the rewards of shaking loose the state’s anti-democratic status quo, of giving the “interests of the represented” a fair shot to prevail.