The Ballot Battleground

On the night of November 8, 2011, Ohio governor John Kasich stepped before reporters to admit that the centerpiece legislation of his administration, Senate Bill 5, had been heavily defeated in a referendum by Ohio voters.

“It’s clear the people have spoken,” Kasich said. “I heard their voices. I understand their decision. And frankly, I respect what the people have to say in an effort like this. And as a result of that, it requires me to take a deep breath and to spend some time to reflect on what happened here.”

This rare display of humility from Kasich was a welcome break from the otherwise brazen politician who just months earlier had vowed to “break the back of organized labor.” Across the state, labor groups celebrated the hard-fought victory of repealing SB 5, a bill that would have stripped public employees of their collective bargaining rights.

But to understand how organized labor in Ohio came face to face with such an extreme piece of legislation, we need to look back to Massachusetts in 1812. The governor at the time, Elbridge Gerry, signed a bill into law that reapportioned Massachusetts’s legislative districts to favor his Democratic-Republican Party. One of the districts was so obviously politically manipulated and oddly shaped that people said it resembled a salamander. The Boston Gazette dubbed the district the “Gerrymander,” a portmanteau that would evolve into the term “gerrymandering,” which means deliberately drawing legislative districts to favor a particular candidate or party.

Every ten years, after the census, states redraw the boundaries for state and congressional legislative districts to account for population shifts. Eleven states have nonpartisan redistricting commissions, but in other states, redistricting is intensely partisan. If one party controls the legislature and the governor’s mansion, that party controls the mapmaking.

When this process is controlled by a single political party, electoral competitiveness falls by the wayside. The party in power packs its opposition voters into as few districts as possible, while allotting itself as many favorable districts as possible. Frequently, in the aftermath of gerrymandering, only a handful of districts are competitive and afford voters a genuine role in determining their representative. The party that controls the mapmaking often receives a minority of votes but holds a disproportionate majority of legislative seats. In the 2012 congressional elections, Democratic candidates received 1.4 million more votes nationwide than Republican candidates, yet Republicans kept control of the US House of Representatives with 234 seats compared with the Democrats’ 201.

The experience in Ohio illustrates the political distortions caused by partisan redistricting. In a state whose majority voted to reelect President Obama and liberal Democratic US senator Sherrod Brown, twelve of Ohio’s sixteen congressional seats went to Republican candidates. In the Ohio House of Representatives, Republican candidates captured sixty of the ninety-nine seats, and in the Ohio senate, Republicans now control twenty-three of the thirtythree seats.

As a result of gerrymandering, citizens are often stuck with the same political party controlling their state legislature for ten years, until redistricting occurs again. Representatives on both sides of the aisle tend to pander to their bases because they are in “safe districts,” in which the primary election is the only likely opportunity for real competition. This explains the overabundance of ideologues and the scarcity of moderates in government.

The Turn to the Ballot Measure

The political distortion caused by partisan redistricting has led citizens increasingly to use ballot measures to make policy changes or to undo policy changes enacted by state governments. Ballot measures, also referred to as propositions or questions, come in three forms: initiatives, popular referenda, and legislative referenda. An initiative is an offensive tool used by citizens to change a statute or amend the state constitution. A popular referendum, on the other hand, is a defensive tool, which involves repealing a law passed by the legislature. Finally, a legislative referendum is a measure placed on the ballot by the state legislature for voters to decide. In an era of extreme, unabashed gerrymandering, it is simply easier to take issues straight to the electorate than it is to elect lawmakers who reflect the will of the people.

Over the years, ballot measures have been used for a variety of reasons: to increase voter turnout in the general election among certain demographic groups; to energize the voter bases of political parties; to force opponents to divert attention and resources; and, if it is a statutory option, to repeal laws passed by state legislatures. These citizen options were the product of the Progressive Era of the early twentieth century, during which reformers sought to circumvent corrupt political machines to allow the electorate to engage in direct democracy. Twenty-four states now allow for initiatives, while twenty-three allow for referenda.

Being from Ohio, I am keenly aware of the popular referendum option. In February 2011, Shannon Jones, an Ohio state senator from the most conservative county in the state, introduced the infamous Senate Bill 5. Despite rallies, protests, and a plethora of fact-based opposition testimony, the Republican majorities in the senate and house quickly pushed the bill through the general assembly, and Governor Kasich signed the bill into law.

Luckily, Ohio statute allows citizens to repeal recently passed state laws through a referendum process. The labor coalition “We Are Ohio” led a successful effort to repeal SB 5, winning over Ohio voters 62 percent to 38 percent. We Are Ohio was a wellfunded and well-oiled machine, with a robust central and regional staff and trusted, battle-tested consultants and lawyers. There was a strong sense of unity among the coalition organizations, which minimized conflict among the principal decision makers. The group exercised tremendous message discipline. Anyone who was intimately involved in the campaign would still be able to tell you that SB 5/Issue 2 is “unsafe, unfair, and hurts us all.”

While We Are Ohio was victorious, the victory came at a cost as the coalition was forced to divert attention and resources, spending more than $30 million to preserve our rights instead of supporting candidates and other issues.

Unfortunately, some states, like Wisconsin, do not have the citizen veto option that was exercised in Ohio. As a result, labor in Wisconsin was forced to try to recall Republican governor Scott Walker and to change the makeup of the state senate in the wake of the antiunion legislation that was passed and signed into law in 2011. The “We Are Wisconsin” coalition failed to unseat Governor Walker; and, while it made significant, impressive strides in the gerrymandered senate, it also failed to gain a majority of prounion lawmakers. Postelection polling revealed that many people in Wisconsin felt that a recall should be used only if an elected official engages in abuse of power or criminal activity, so even though Wisconsinites may have disagreed with the union-busting legislation, they did not think it was sufficient reason to kick representatives out of office.

Challenges of Using the Ballot Measure

Placing an initiative on a state ballot is a multistep process that varies by state, but it typically involves (1) obtaining approval from the state for the language that appears on a petition; (2) achieving a threshold number of registered voters’ signatures; (3) getting the state to certify that the threshold number of valid signatures has been met; (4) making sure the state properly describes the proposal in the language it will use on the ballot; and finally, of course, (5) influencing the electorate to vote for the initiative.

Pursuing a ballot measure is a long, tedious, and expensive project, and certainly not one that can be taken lightly. Today, successful ballot measures require a tremendous amount of money, staff and volunteer time, and legal work to move from petition to ballot to victory. And with campaign finance laws being softened thanks to the US Supreme Court’s decision in Citizens United, it is much easier for out-of-state donors to pour money into these campaigns, often turning state ballot issues into national battles.

 When considering whether to pursue a ballot initiative, the parties involved have to make data-driven decisions. This is easier said than done when the issues are emotionally charged and personally affect the decision makers. However, if a scientific poll does not show that a majority of the electorate is with you, or that you can effectively move the electorate with appropriate messaging, choosing to proceed can be a great waste of energy and resources.

Perhaps more important, losing a public battle can have far-reaching, negative consequences. For example, the failure in 2012 of a coalition of labor unions in Michigan to win an initiative election designed to enshrine collective bargaining rights in the state constitution gave Republican governor Rick Snyder a springboard to push through so-called “right-towork” legislation during the lame-duck session. The crux of “right-to-work” laws is banning unions from collecting agency fees, also known as fair-share fees, from nonmembers; these fees are used by unions to enforce contracts and prevent free-riding. While such laws are touted as ensuring “freedom in the workplace,” they’re designed to weaken unions and, thus, workers’ rights.

Other factors that can influence the outcome of a particular ballot measure should be taken into consideration. For instance, pursuing an initiative in an even-numbered election year, particularly a presidential election year, can be a mistake, especially if you live in a battleground state like Ohio. An initiative can easily get lost in the shuffle when high-profile candidate races are monopolizing news attention, TV commercial time, and mailbox space.

It also can be a mistake to pursue an initiative if the ballot is going to be crowded with other propositions. Ballot-issue campaigns rely on instructing voters to vote yes or no on the issue number. On a crowded ballot, it can be hard for voters to keep track of the issues. Additionally, ballot language can be very long (sometimes an intentional problem created by the partisan forces that write the language), which may cause voters to skip over issues altogether or simply vote no. Political science research has shown that voters are more likely to vote no when they do not know about the issue or do not understand it.

In the wake of gerrymandering by Ohio Republicans who controlled the reapportionment process, the Ohio League of Women Voters decided to initiate a constitutional amendment to create a bipartisan citizens’ commission to draw the state and congressional district lines. Eventually, organized labor and progressive groups signed on to the effort, and it became the “Voters First” campaign.

While Voters First was armed with messages that polled well with the public, it did not have the kind of resources it needed to achieve effective penetration with the public, especially when President Obama and candidate Romney dominated the airwaves. It also had the uphill battle of trying to get voters to say “Yes on Issue 2” after a year of the same groups’ telling their constituencies to vote “No on Issue 2” to repeal Senate Bill 5. As a result, the well-financed opposition campaign called “Protect Your Vote,” led by Republicans driven to protect their stranglehold, convinced voters that this was a partisan effort that actually would undermine their vote. The measure was defeated 63 to 37 percent.

Call to Action

Unfortunately, the party in power rarely has the political will to change the reapportionment process, and members of any group that attempts a ballot initiative to change the process are portrayed as sore losers motivated by partisanship, even though the result would be partisan-neutral. Until more states adopt methods that promote fairer elections, allowing voters to choose their politicians instead of letting politicians choose their voters, we will continue to see citizens turning to ballot initiatives to create change.

But that is not the only lesson learned. Powerful forces in this country wish to defund public education, eliminate the tenured professorship, and undermine the ideals that the AAUP values. The AAUP—individual members, chapters, state conferences, and the national organization—must become more politically active. This means engaging in lobbying: getting to know your legislators, contacting them about issues, and participating in lobby days. It also means participating in elections beyond merely voting: writing individual checks to candidates, forming political action committees, and volunteering for campaigns. We cannot survive if we choose to believe that we are above the political fray, especially with the professoriate a direct target of legislative attacks. We must help to elect candidates who support education, recognize AAUP principles, and respect collective bargaining rights.

Sara Kilpatrick has served as executive director of the AAUP’s Ohio conference since February 2011. She previously worked as the political director for the Ohio Senate Democratic Caucus, political affairs coordinator for the Ohio State Medical Association, and legislative aide in the Ohio senate. Kilpatrick was awarded the AAUP’s Georgina M. Smith Award in 2012 in recognition of her efforts to preserve faculty collective bargaining rights.