How judges threaten direct democracy.
Monday, October 16, 2006 12:01 a.m. EDT
Government officials pay homage to democracy, but this election year some are actively trying to undermine it. While the 79 citizen-sponsored initiatives that will be voted on this year is up 25% from 2004, courts have become increasingly aggressive in throwing them off the ballot, often for dubious reasons. In addition, there are accusations that unions and other groups have employed tough-guy measures to block some proposals from consideration.
Direct democracy in the 24 states that allow it often makes government function when arrogant, self-absorbed legislatures are gridlocked. Voters in several states have imposed term limits and curbed bilingual education and racial quotas, hot-button issues legislators often shrink from tackling. Liberals have used initiatives to pass minimum-wage hikes and tobacco taxes that were often blocked by legislatures where powerful lobbyists hold sway.
Establishment forces have long resented that initiatives allow voters to do an end run around them and are always looking for ways to limit them. Florida's Legislature put a measure on next month's ballot that would require a 60% supermajority for passing all future constitutional amendments. Such a barrier would discourage many groups from even trying to qualify measures. In Massachusetts, more than 170,000 voters signed petitions for a ballot measure against same-sex marriage. But the Legislature, which is required to vote on initiatives before they reach the ballot, is trying to avoid holding a vote. House Speaker Salvatore DiMasi has urged his colleagues to make sure the issue marriage "never, ever appears as a question on the ballot."
But the biggest threat to initiatives comes from the courts, which are striking measures from the ballot with abandon. The Florida Supreme Court, infamous for its creative rulings in the 2000 recount, has removed a proposed measure creating a nonpartisan commission to redraw the state's gerrymandered legislative districts on the grounds it deals with more than one subject.
In Oklahoma and Nevada, measures restricting government's powers of eminent domain and restricting land use were either removed or gutted on single-subject grounds. In Montana, an initiative limiting growth in the state's budget to increases in population and inflation was declared invalid because it authorized judges to modify the spending cap. A district judge ruled that provision represented a second subject.
In June the Colorado Supreme Court used a similar interpretation to remove an initiative denying most state services to illegal immigrants. The court bizarrely ruled that the initiative fell afoul of that requirement because it reduced taxpayer funding of services to illegal immigrants while it also denied services to that group. This puzzled legal scholars, who noted that the decision directly contradicted a previous ruling by the same court on a gun-show initiative, which concluded: "The mere fact that the initiative contains detailed provisions for its implementation does not mean that it contains multiple subjects." The Denver Post, which opposed the anti-immigrant services measure as "mean-spirited," nonetheless accused the court of applying "logic that pretty much escaped the rest of us" and urged that it reconsider and restore the initiative to the ballot.
"State courts are aggressively wielding the single-subject requirement to deny voters the ability to vote on important public policy issues," says Elizabeth Garrett, a University of Southern California professor who worked in the office of Sen. David Boren, an Oklahoma Democrat.
There are also administrative barriers to initiatives making the ballot. South Dakota's secretary of state removed two measures by claiming that an initiative could not be used to repeal an existing law. The state's Supreme Court overruled him and ordered the two measures reinstated.
Sometimes lower-level government officials actively prevent the gathering of signatures. In Nebraska, a group seeking to put a spending cap on the ballot expected to face union-paid "blockers" who would yell at and otherwise intimidate people being asked to sign petitions as well as robo-calls warning voters that signature gatherers might engage in identity theft.
What they didn't expect was that unionized police forces in Omaha and Lincoln would deny signature gatherers the right to work outside driver's license bureaus, libraries and the public sidewalks that lead to private buildings. Some police officers would even threaten petitioners going door to door with arrest, saying they first needed a permit to "solicit." A federal judge had to issue a temporary restraining order stipulating the right to collect signatures outside public buildings and on sidewalks. Freed from harassment, spending-cap proponents collected over a third of the necessary signatures in just a week and qualified for the ballot.
In a battle over a spending-cap measure in Nevada, a state judge imposed an agreement mandating courteous behavior and no interference with signature gathering after a series of incidents involving intimidation of voters. The measure was eventually struck from the ballot after a finding that voters had signed petitions for a measure slightly different from the version that would have appeared in voting booths.
The latter Nevada ruling does point to a degree of sloppiness and sometimes even outright fraud in the gathering of signatures that must be policed. This year, a company called National Voter Outreach hired to qualify several antitax and eminent-domain measures failed to exercise quality control over its operations and contributed to the striking of ballot measures in Oklahoma and Missouri. In Akron, Ohio, the local elections board has asked prosecutors to investigate seven people for possible petition fraud over minimum-wage increase petitions that included dead voters and different names with the same handwriting.
Initiative proponents should crack down on such abuses and practice better disclosure of who finances their efforts. Liberal groups such as the Ballot Initiative Strategy Center rail against "conservative millionaires dumping money into states they know nothing about" in order to qualify antitax measures. But BISC has been funded in part by George Soros, one of several liberal billionaires who are actively trying to conceal exactly where their donations are going. The Washington Post reports Democracy Alliance, a group of some 100 top Democratic donors, has recently directed over $50 million to liberal groups but only if they promise to shield the identity of donors. The public would benefit from more disclosure by all parties.
In those states where proposed spending-cap measures have made the ballot, opponents have ramped up their rhetoric to a fever pitch. Listen to Jim Griess, executive director of the Nebraska State Education Association: "The struggle in which we are engaged is as vital to our future today as was the outcome of the Civil War to our nation in 1860 [sic]. The goal of these locusts is to impose their will on state after state until they have completely demolished government as we know it. There is a time for every generation to rise to the call--when the very existence of our nation, our state, our values, our culture and our public schools are threatened with extinction." All that over a measure that would merely limit the growth of state spending to increases in population and inflation.
That kind of overheated rhetoric against spending caps prompted Paul LePage, the mayor of Waterville, Maine, to complain to the Maine Municipal Association about its campaign against the Taxpayer Bill of Rights measure on the Maine ballot. "Using emotional scare tactics, distortions, and lack of trust in our democratic society is contemptible," he wrote officials of the association last month. "When government fails its constituents, citizens need to take action. While I would prefer having fiscally responsible elected officials, however, short of having that we must resort to referendums."
Mayor LePage has the balance exactly right. With incumbents increasingly making themselves invulnerable to challenge through either gerrymanders or campaign finance restrictions, the right of initiative is an important safety valve. The process can be abused, but most voters are discriminating and reject measures that don't stand up to scrutiny. The late economist Mancur Olson argued that the downfall of democracy would be its tendency to calcify into special-interest gridlock. Direct democracy is one way to stop that from happening.
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