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Republican lawmakers in Arizona placed a slew of constitutional amendments on the ballot this fall to limit the recourse available to voters to hold politicians and courts accountable and to take matters into their own hands. Arizonans on Tuesday rejected those proposals.
They voted down Prop 137, which would have largely ended judicial elections in the state and frozen in place the state supreme court’s current conservative majority. They also rejected Prop 134 and 136, which would have severely limited direct democracy by making it far tougher to qualify a measure for the ballot.
All three measures lost handily, with Prop 137 going down by the largest margin. With some ballots remaining to be counted, it trails 77 to 23 percent as of publication.
Arizonans on the same day approved an initiative to protect abortion in the state, overturning a 15-week ban GOP lawmakers adopted in 2022. This measure was placed on the ballot through a citizen-led effort, precisely the sort of organizing that would have become prohibitively difficult in the future if Prop 134 and 136 had passed.
“It is heartening that these measures went down pretty solidly,” said Jim Barton, an Arizona attorney who has defended ballot measure campaigns in court and opposed Prop 134 and 136. “Despite all of the work that legislators have done to try to take away citizens’ rights to make laws, we have still been able to get good things done.”
Andy Gordon, another Arizona expert in election law who worked with the group Keep Courts Accountable to convince voters to reject Prop 137, shared Barton’s relief at the results.
Voters, he said, “recognize there are a group of initiatives that would have taken their rights without giving anything in return, and they voted ‘no’ on those. And on the one that gave them something—in this case reproductive rights—they voted ‘yes.’”
The Republican attempts to overhaul the state’s constitution came as Democrats have gained ground in Arizona but have failed so far to take over the legislature, prompting the GOP to try to close down some of the alternative avenues the left has used to make gains.
The proposed overhaul of the judiciary would have ended the requirement that judges on the state’s appeals courts and supreme court, and some local courts, win the approval of voters at regular intervals after being appointed by the governor.
The measure would have given judges a permanent appointment up to age 70, taking voters out of the picture unless a judge fails a performance evaluation or faces specific circumstances like being convicted of certain crimes.
Had it passed, Prop 137 would also have applied to this year’s elections, nullifying the results of the judicial races that were on the ballot on Tuesday.
Republican lawmakers advanced the proposal this summer to voters after progressives launched a campaign to oust Justices Clint Bolick and Kathryn King, two conservative judges on the state supreme court who had just voted to revive a near-total ban on abortion. Bolick’s wife, Shawnna Bolick, is a state Senator who voted in favor of putting Prop 137 on the ballot.
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Bolick and King handily won their retention races on Tuesday, a blow to progressives hoping to reshape the court. As of publication, they have 58 and 59 percent of the vote, respectively.
Judicial retention races are typically sleepy contests that see little controversy or campaigning. No state supreme court justice has ever lost a retention election in Arizona, and the last time Bolick ran for retention in 2018, he prevailed with 70 percent of the vote.
But 2022 saw an unusual liberal campaign to oust conservative Justice Bill Montgomery, who survived by 10 percentage points, a slim margin for an Arizona justice. The left’s attempt to unseat Montgomery grew from fears of a right-wing domination of the courts after Republicans added seats to the supreme court under former Governor Doug Ducey. Then, conservatives bristled at the losses of several local judges in Maricopa County in 2022, claiming that these elections were overly politicizing the judiciary. Bolick wrote in an opinion piece in May that progressives are “weaponizing judicial retention.”
Timothy Berg, a constitutional law attorney who co-chairs Arizonans for an Independent Judiciary, a political action committee that advocated for voters to keep Bolick and King, told Bolts that Prop 137 would have changed the Arizona judicial system “to give voters less control.”
“Voting it down is consistent with Arizona’s longtime approach to politics: that voters want a say in who their judges are,” Berg said.
All justices on the state supreme court have been appointed by Republican governors, though that is about to change since Democratic Governor Katie Hobbs is set to pick a replacement for Justice Robert Brutinel, who announced his retirement in September.
Hobbs was not on the ballot on Tuesday and will remain governor until at least 2026. Democrats were hoping to gain control of the legislature this year and fully run the state government for the first time since the 1960s. The final results are not yet known, but as of publication Democrats are just short of what they would need to accomplish that goal.
Absent legislative majorities for Democrats, progressives over the years have resorted to the citizen-led initiative process to ask Arizonans to approve reforms. This included establishing publicly funded elections in 1998, raising the minimum wage in 2016, legalizing recreational marijuana in 2020, and requiring campaigns to disclose the identity of major donors in 2022. And, this year, it included Prop 139, the abortion rights measure.
“Initiatives are largely a safety valve for legislative inactivity,” said Gordon. “There was no way in hell this legislature or any legislature in recent history was going to advance the right to abortion and other reproductive rights.”
Prop 134 and 136 would have restricted this path going forward by severely tightening the already arduous process to get an initiative on the ballot.
Prop 134 would have required citizen initiatives to meet a certain threshold of signatures from every single legislative district in Arizona. Currently, campaigns can qualify for the ballot by collecting a set number of signatures regardless of where in the state they come from. Critics said this requirement would have made the process prohibitively difficult for advocacy organizations and volunteer groups by requiring them to run costly campaigns in sparsely populated areas, and allow measures to be killed by any of the state’s 30 districts.
Direct democracy is critical for correcting some distortions in our representative democracy. It serves as a really necessary check on other institutions.
– Alice Clapman, Brennan Center for Justice
“This is an effort to make it harder for regular people to engage in the process,” Dawn Penich, an advocate for the campaign that qualified the abortion rights measure this year, told Bolts in May. She described how difficult it already is for organizers to put issues on the ballot. “It is grueling work,” she said. “I’m out in the field, on the streets, at trailheads with our volunteers many days a week.”
Prop. 136, meanwhile, would have allowed opponents to challenge the constitutionality of citizen initiatives as soon as it qualifies for the ballot, before they pass. Opponents said it would have made it easier to kill citizen-driven reforms with costly legal battles before voters even had a chance to weigh in, exploding the amount of money needed to run a competitive ballot campaign.
“Moving these disputes to the court and away from the voting process, it is about taking the power away from voters,” said Alice Clapman, senior counsel for the Voting Rights program at the Brennan Center for Justice. “Direct democracy is critical for correcting some distortions in our representative democracy. It serves as a really necessary check on other institutions.”
Barton said that many voters perceived Prop 134 and 136 as attempts to sabotage the democratic process. Tuesday’s results, he said, “means that voters paid attention more than Republicans thought they would—the citizens do not want tricks to be involved.”
This isn’t the first time Arizonans have voted to protect direct democracy. In 1998, they amended the state constitution to stop lawmakers from weakening, tweaking or repealing citizen-driven ballot measures after they had been approved by voters.
“Voters got tired of legislators trying to amend or change the measures they had passed,” Barton recalls. “This is another example of that, where citizens have said—we are not going to allow you to step on our rights.”
Citizen-led initiatives are used by conservatives and progressives alike. In states that are run by Democrats, the right often pursues these measures. Voters in Washington state, for instance, weighed in this fall on initiatives that would have overturned environmental regulations and repealed a capital gains tax on wealthy residents; both failed on Tuesday. Voters in California and Colorado approved initiatives to restrict some forms of punishment.
Still, Republican politicians have moved aggressively in recent years to undercut initiatives. In Montana this year, Secretary of State Christi Jacobsen barred petitions from counting signatures of registered voters who are “inactive”—those who have changed addresses or have missed two consecutive elections—though a judge blocked the rule change. And the GOP has proposed constitutional amendments in many other states to weaken the initiative process.
In 2022 and 2023, voters in Arkansas, Ohio, and South Dakota all rejected such, and in North Dakota they did it just this week: They defeated a GOP-backed measure that would have raised the number of signatures needed to qualify an initiative, and also required initiatives to be adopted twice, on two different dates—on the primary ballot and then the general election ballot.
“Voters are closely guarding their direct democracy powers,” Clapman said. “Consistently, when it is clear to voters that a ballot measure would strengthen or weaken direct democracy, they choose to strengthen. Voters like having this power.”
Barton agrees, saying of Arizonans, “the voters worked very hard to protect their rights.”