The results of the vote on a constitutional amendment that could have removed abortion rights in Kansas elicited two common reactions: surprise (that a red state votes in favor of abortion rights) and hope (that the process can be replicated elsewhere).
No answer, however, tells the whole story.
The real lesson in Kansas is that direct democracy — where voters weigh in on issues without the confusing effects of special interest groups that can dominate state legislatures — can be a bulwark against extreme positions. But it is eroding in many states.
The result in Kansas shouldn’t be so surprising. According to polls and survey data available before the vote, more than 55% of Kansans were in favor of access to abortion. According to this poll, 59% of voters voted against the removal of the right to abortion.
And Kansas is no exception, even among red states. A majority of voters in Texas, South Carolina and Georgia also support access to abortion. Does this mean that what happened in Kansas – rejecting abortion restrictions by popular vote – can be repeated in these places and elsewhere? Not necessarily, because direct democracy is not rooted in all states.
Take the case of Medicaid expansion. Medicaid, a public health insurance program, is administered by the states but funded by federal and state governments. The Affordable Care Act was intended to dramatically expand Medicaid coverage and make it available to Americans in more states; the law even offered generous federal funding to any state willing to do so.
And yet, several years after the Affordable Care Act was passed, 20 states still refused to expand Medicaid coverage. Virtually all were led by a Republican governor, a Republican-controlled state legislature, or both. To demand access to Medicaid, residents of several of these states have organized ballot initiatives to expand Medicaid coverage, attempting to overrule their governors and legislatures.
Like the abortion access proposal in Kansas, many analysts predicted that these initiatives would fail. But state after state they succeeded. Over the past five years, Maine, Missouri, Oklahoma, Idaho, Utah and Nebraska have all enacted Medicaid expansion through ballot initiatives. Voters there have shown themselves to be much more progressive than their elected representatives, favoring better access to the public health insurance system. Such results highlight a potentially promising avenue for protecting abortion rights outside of the traditional legislative process.
But the campaign to expand Medicaid could also serve as a cautionary tale. Twelve states still have not expanded Medicaid coverage. Eight of these 12 states do not even provide, in their laws and constitutions, for a popular initiative or a referendum. Another – Mississippi – technically offers voters a process to directly amend its constitution, but the Mississippi Supreme Court has ruled that the procedural requirements are “mathematically impossible to meet.” Later efforts to change the process in Mississippi failed.
More worryingly, several states have recently tried to make their initiative and referendum processes more difficult. Last year in Florida, for example, the state government passed measures to limit financial contributions to citizen-organized ballot initiatives. Idaho also passed a law that imposes more onerous signature requirements on groups seeking to use the initiative or referendum process.
Finally, in November, South Dakotans must vote on their own ballot initiative on expanding Medicaid. But before that move, the South Dakota legislature sought to change the rules surrounding voter-initiated referendums, requiring them to pass by 60% rather than a simple majority, to become law.
In a quirk of South Dakota law, however, the legislature could only change that procedure by asking voters the question directly. Those voters rejected the measure last June by a margin of almost 2 to 1, preserving their own right to make changes by referendum.
Here’s why these Medicaid details — specifically, where grassroots initiative has a realistic chance of succeeding, and where it doesn’t — matter. First, access to Medicaid and reproductive choice are inextricably linked. As I’ve written elsewhere, overthrowing Roe will disproportionately burden low-income people and people of color. Refusing to extend Medicaid will have the same effect.
Additionally, when viewed on a map, states that do not have initiative or referendum processes, or states that harden their processes, are disproportionately found in the Southeast and Great Plains. These are the same states that have refused to expand Medicaid, and these are the same states that impose some of the most onerous restrictions on abortion. The struggle in these places is therefore not only a question of extending health care coverage or access to abortion. It is also about the nature and character of democracy itself.
As satisfying as the outcome in Kansas may have been for progressives, it will not – and cannot – be repeated in the places that need it most until there is a promise to save the processes. that enable democratic participation.
This kind of push does not happen through a single election or voting cycle, but through a sustained commitment by public officials, judges, and other stakeholders to recognize and protect the vitality of democracy. direct.
Xiao Wang is a clinical assistant professor at Northwestern Pritzker School of Law and director of the Appellate Advocacy Center.