“The People Reserve the Power”: Ballot Measures and the Arizona Constitution in the Post-Roe Era

By Rosie McCormack. 

Every American middle schooler learns that, in our three-branch government, the legislature makes the laws. Few people may know, though, that Arizona’s Constitution grants ordinary citizens lawmaking power too. Article IV, part 1, section 1 of the Arizona Constitution vests lawmaking authority in the legislature, but it also states that “the people reserve the power to propose laws and amendments to the constitution and to enact or reject such laws and amendments at the polls, independently of the legislature.” Citizens also have the power to approve or reject legislation via a veto referendum. 

Arizonans have weighed in on 459 ballot measures since statehood, 211 of which were initiated by citizens. Some of these measures have created impact far beyond Arizona by raising questions about the federal Constitution. Local ballot initiatives have also had high stakes. For example, Tempe voters chose to reject a $2.1 billion entertainment district development project that would have included an NHL arena for the Arizona Coyotes. 

In recent years, Arizonans have used ballot measures to weigh in on several hot-button policy topics, such as renewable energy, marijuana legalization, and campaign finance disclosure requirements. This fall, Arizonans may have the opportunity to cast their votes on another pressing political issue: abortion in the post-Roe era. 

Arizona’s Abortion Laws: An Uncertain Landscape

In June 2022, the Supreme Court overturned Roe v. Wade and eliminated the federal constitutional right to abortion. In Dobbs v. Jackson Women’s Health Organization, the Supreme Court decided to “return the power to weigh [abortion policy] arguments to the people and their elected representatives.” 

In the wake of Dobbs, states took various approaches to developing abortion policies. Some states had already established a state right to abortion, while other states enacted “trigger laws” that would make abortion illegal if Roe was overturned. 

Other states, like Arizona, lacked a cohesive framework. When Dobbs was decided, Arizona had several conflicting or ambiguous abortion-related statutes and injunctions in place. The conflict between two laws—one from 1864 and one from 2022—created uncertainty about whether Arizona allows elective abortions at all. 

A.R.S. § 13-3603, which was initially codified in 1864 by Arizona’s territorial legislature, bans all abortions except those that would save a mother’s life. When Roe was decided, the Arizona Court of Appeals issued an injunction voiding enforcement of the law, but the law was never repealed. The law was therefore open to revived enforcement when Roe was overturned.

A few months before the Dobbs decision, however, the Arizona Legislature passed SB 1164, which criminalized abortions performed after 15 weeks. The law makes an exception for medical emergencies but contains no rape or incest exception. 

Litigation over the validity of A.R.S. § 13-3603 and SB 1164 soon began. Former Arizona Attorney General Mark Brnovich asked an Arizona trial court to lift the 1973 injunction on the 1864 territorial ban. The trial court granted the motion, but the Arizona Court of Appeals blocked the order. The Court of Appeals found that the two laws could be harmonized and held that the 1864 full abortion ban applies to non-doctors performing abortions, while SB 1164 allows doctors to legally perform abortions up to 15 weeks of pregnancy. 

The Court of Appeals holding reflects the “law of the land” for now, but the case has been appealed to the Arizona Supreme Court. The court heard oral argument in December and has yet to issue its decision. In the midst of this ongoing litigation, Arizona Governor Katie Hobbs issued Executive Order 2023-11, granting Attorney General Kris Mayes authority over any abortion-related prosecutions in Arizona. AG Mayes then stated she would not prosecute any abortion-related offenses. This policy, though controversial, has created some consistency in the law, buying the courts time to work out the statutory conflicts. 

Arizona Ballot Measure in the Works

A ballot measure might beat the courts to the punch, however. One of the most high-profile measures proposed for the Arizona 2024 elections is the Abortion Access Act Amendment. The Amendment would establish a constitutional right to abortion until fetal viability, typically around 23 or 24 weeks of gestation. This amendment would therefore expand abortion access in Arizona beyond SB 1164’s fifteen-week limit and the territorial-era ban. The Act also contains an exception permitting an abortion after viability if medically necessary.

To be certified for the ballot, the measure will need to garner 383,923 signatures by July 2024. Though Arizona abortion access advocates failed to garner enough signatures for a similar measure in 2022, they feel more confident this time around. About two-thirds of polled Arizonans identified abortion policy as an “important factor” in deciding who to vote for in the 2022 Arizona Governor’s race. Abortion rights are poised to take center stage across the nation, too—fifteen other states have proposed abortion-related ballot measures for the 2024 elections.

Ballot Measures Across the Nation 

Since Dobbs, voters have generally voted in favor of access to abortion. In the 2022 midterm elections, citizens voted in support of reproductive freedom in all six states where abortion-related proposals were on the ballot. In Kansas, Kentucky, and Montana, voters rejected measures that would have restricted abortion access; in California, Michigan, and Vermont, voters approved state constitutional amendments establishing a right to abortion. Notably, these ballot measures performed better than Democratic candidates within the states. This indicates that support for abortion rights does not strictly adhere to partisan alliances. 

In November 2023, Ohioans voted in favor of Issue 1, a ballot measure that created a constitutional right to abortion, by a double-digit margin. Many considered Issue 1 to be a bellwether for how an abortion ballot measure would fare in other swing states such as Arizona and Florida. 

Ohio’s Issue 1 was a success for abortion access advocates, but anxiety about direct democracy hovered around the margins. Leading up to the Ohio vote, citizens rejected a proposal that would have required more than a simple majority for Issue 1 to pass. Proposals aiming to increase the “pass” requirement from a simple majority to a 60% supermajority could have large implications for future abortion-related ballot measures. Although 2022 midterm voters generally voted in favor of abortion access, many of those ballot measures had less than 60% support.  

Is Direct Democracy the Way to Enact Policy?

Ballot measures have become an increasingly common route to making law, in Arizona and nationwide. State legislatures are enacting more legislation related to direct democracy, and they are generally trying to make the referendum process easier, not harder. Some have described voter referendums and initiatives as a burgeoning “fourth branch of government.” As Ohio’s Issue 1 demonstrates, however, the “simple majority” requirement of ballot measures is not likely to remain simple. 

Direct democracy initiatives may seem more efficient in the era of legislative gridlock and slow-moving court processes. Ballot measures can be especially effective at the local level, because voters are motivated to participate when issues will impact their daily lives. Others note that ballot measures are, at least on their surface, non-partisan; voters can weigh in on individual issues rather than feeling confined to one party. If a ballot measure is clearly written, specific, and developed with community input, it can be an effective form of direct democracy.

While ballot measures are undeniably powerful, they also raise unique challenges. Poor drafting, “logrolling,” timing problems, and lack of voter education on relevant subject matter can weaken the benefit of ballot measures. Some fear that ballot measures are especially susceptible to influence by out-of-state investors and interest groups, in part because of their simple majority requirements. Moreover, a ballot measure does not always end the discussion: Montana voters rejected a “Born Alive” referendum in 2022, but the Montana legislature passed a similar proposal months later. 

Even when well-crafted, ballot measures raise thorny questions about the philosophical underpinnings of American democracy. Scholars have contemplated whether direct democracy is compatible with the indirect, representative democracy established in the U.S. Constitution. Historically, there has been no topic “off limits” for a voter referendum, but academics have questioned whether some rights are so fundamental that they should be insulated from majority vote. 

Despite their flaws, ballot measures will undeniably remain a powerful lawmaking tool in the 2024 elections and in years to come. If the Abortion Access Act Amendment makes it onto the 2024 ballot, Arizonans will once again have the opportunity to exercise their constitutionally-granted lawmaking authority. Time will tell whether Arizona voters will follow the nationwide trend to protect abortion rights, and what—if anything—our courts and legislature will do in response.