Voters as Legislators - Theoretical, Pragmatic and Political Considerations (and Some Absurdity)
By Marion Edwyn Harrison (11/02/06)
Erratically through our history as a democratic republic, and more particularly in the 20th and 21st Centuries, direct voter legislative input has been debated and frequently tried. The nomenclature varies from State to State - initiatives, referenda, plebiscites, propositions - or, when applicable, amendments to a State constitution. Whatever the name or exact legal status, the procedure is that the entire electorate is eligible to vote on a matter which if approved (by varying majority requirements) becomes law more or less as though enacted by a legislature and signed by a governor.
The theory is self-evident: In a true democracy, legislation should be the right of the full electorate, not merely of elected legislators. The pragmatics vary. In some States the procedural requirements are minimal: Somebody drafts a proposal, a certain number of registered voters sign to place it on the ballot, it’s on the ballot. In other States prior legislative enactment or other procedures are required, more often if the proposal is to amend the State constitution. The political considerations also vary, and frequently are significant in sometimes unexpected tangential ways - e.g., motivating more citizens to vote, thereby affecting candidates for election not directly involved. (That byproduct conspicuously occurred in Ohio in 2004, when a marriage referendum induced many conservative and/or family-oriented voters to vote and, while they were at it, to vote for President George W. Bush’s re-election, a crucial majority).
Next week we may see some such unintended consequences. There apparently are more initiatives on State ballots than in any year except for 1914 and 1996. By way of example, and not necessarily limitation, Virginia GOP Senator George F. Allen is in an unexpectedly close race against Republican-turned-Democrat former Secretary of the Navy James H. Webb, Jr. Virginia has on its ballot a proposed amendment to the Virginia Constitution, approved for the referendum by the General Assembly (as its legislature is named), traditionally defining marriage. Many Protestants, especially Evangelicals and other more conservative Christians, as well as both Virginia Roman Catholic Bishops, are urging the faithful to vote aye. Thus, many cognizant observers of Virginia politics are predicting that vote will spill over to brace up the Allen candidacy.
The sideline consequences undoubtedly will vary among the States. Instead of a crossword puzzle, the reader might want to attempt to evaluate what significance, if any, the following might have upon a candidacy - or just wait until November 8 and join the pundits in their analyses. In some States there are two or more propositions on the November 7 ballot. Among the propositions:
Abortion: California, Oregon, South Dakota.
Affirmative action: Michigan.
Animal welfare and hunting: Arizona, Georgia, Michigan.
Death penalty: Wisconsin.
Drug legalization: Colorado, Nevada.
Education: Alabama, Arkansas, California, Colorado, Idaho, Michigan, Nebraska, Nevada, New Mexico, North Dakota, Rhode Island, Wyoming.
Eminent domain and other land use: Arizona, California, Florida, Georgia, Idaho, Maryland, Michigan, Montana, Nebraska, Nevada, New Hampshire, New Jersey, North Dakota, Oregon, South Carolina, Washington.
Ethics: Colorado, Missouri, Montana, Oklahoma, South Dakota.
Gambling: Arkansas, Nebraska, Ohio, Rhode Island.
Health care: Oregon.
Immigrant issues: Arizona, Colorado.
Insurance: Oregon.
Judicial matters, crimes, related issues: Arizona, California, Colorado, Hawaii, Louisiana, Maryland, Montana, Nebraska, Oregon, South Dakota.
Marriage: Arizona, Colorado, Idaho, South Carolina, South Dakota, Tennessee, Virginia, Wisconsin.
Minimum wage: Arizona, Colorado, Missouri, Montana, Nevada, Ohio.
Smoking: Arizona, Nevada, Ohio.
Stem-cell research: Missouri.
Taxes, including exemptions, spending and so forth: Maine, Montana, Nebraska, Oregon.
Tobacco, including litigation, taxes, so forth: Arizona, California, Florida, Idaho, Missouri, South Dakota.
Voting and related requirements: Arizona, California, Colorado, Florida, Maine, Maryland, Massachusetts, Oklahoma, Oregon, Rhode Island.
Miscellany (as every long list needs this caption): California, Colorado, Florida, Georgia, Louisiana, Massachusetts, Montana, Minnesota, Nebraska, New Hampshire, New Jersey, New Mexico, Ohio, Oklahoma, Oregon, Rhode Island, South Dakota.
A conscientious voter in any of the foregoing States has considerable self-education to pursue - and in several States, notably Arizona, there are many proposals. The pundits will have many field days after November 7 analyzing results and possible side affects. Unfortunately most voters cannot name their State’s statewide elected officers, their Representative in Congress and their members of the State legislature. How many could understand often complicated ballot propositions? Whatever the numbers, much of the need is in greater civics education - perhaps, but not necessarily, less participating democracy.
Fortunately many of these proposals do not pass. In some States it is far easier to get an item on the ballot than to entice voters to approve it. Let’s conclude with a touch of humor which may reflect that category. Arizona Proposition # 200 if approved would cause the sum of one million taxpayers’ dollars - yes, $ 1,000,000.00 - to be paid to a randomly chosen voter after each election. The supporting rationale may be imported from Las Vegas - to wit, such a lottery would encourage voting.
Apologies to Thomas Stearns (T. S.) Eliot if we may reverse his famous line:
“The last temptation is the greatest treason:
To do the [wrong] deed for the [right] reason.”
Will the Arizona electorate be tempted? What other wild propositions are on ballots in some States? Amid reflecting upon some measure of Democratic gains and Republican losses, as appear to lie ahead, the pundits may discover some humor - or shall we say, absurdity - here and there.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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