Archives for category: Referendum

That’s what Dan Schnur, the director of the Jesse M. Unruh Institute of Politics at the University of Southern California, told Adam Nagourney in a front page article, “In California, Asking Voters to Raise Taxes,” in today’s New York Times.

According to Schnur, “The November 2012 ballot is going to be the political equivalent of bumper car. What we have seen historically is that voters who are overwhelmed or overloaded with things tend to vote ‘no’ on everything.”

While it sounds convincing, Mr. Schnur’s statement is not really backed up by the data.

In California, between 1911 and 2010, voters considered 1180 statewide initiatives, popular referendums, and legislative referendums, passing 666 of them, for a passage rate of 56%.  When it comes to statewide initiatives, popular referendums, and legislative referendums on the ballot in general elections, Californians have approved 491 of the 893 measures.

Here’s a graph of the number of general election statewide ballot measures by year in California, and the accompanying passage rates, over time:

It’s pretty hard to discern a clear relationship over the years that suggests that an increased number of measures on the statewide ballot leads to a decreased percentage of measures adopted by the voters.

Here’s another look at the same data, using a scatterplot:

Again, there’s not a very clear pattern over the last century when looking at the number of statewide ballot measures in a general election and the overall passage rate of those measures. As the linear regression equation indicates, the relationship is quite weak. (And no, that’s not a data entry error: there really were 47 measures on California’s statewide ballot in 1914).

So, what are we to make of Mr. Schnur’s comment, in light of the data?

More measures on the ballot does not lead necessarily to lower overall support for ballot propositions. California voters don’t get “overloaded.”

California voters are not stupid, and are certainly not “dumber than chimps” as Skip Lupia rightly notes. They are able to pick and choose down the ballot, even very long ones, making binary choices that best match their own preferences. It is essential, of course, that voters have informational cues, or heuristics (such as campaign spending on a ballot measure that indicates support or opposition by vested interests) which can help voters with their civic duty when serving as lawmakers for a day.

So bring on the ballot measures in 2012, even those raising taxes on the wealthy to pay for educational and energy programs. Californians are up for the challenge.

The high court has rejected (once again) efforts by gay marriage foes to block the release of signatures gathered on Referendum 71 petitions.  As I argued in my amicus brief in support of the State of Washington’s long-standing Public Disclosure Act, signatures on petitions to qualify ballot measures should be in the public domain.

The Court’s order is here. Not surprising, Justice Alito favored a stay, again putting him at odds with the other justices.

A DVD of the 138,000 individuals who signed Referendum 71 costs $15 (plus shipping costs). It can be purchased through the State Archives, which can be reached at (360) 586-1492 or research@sos.wa.gov.

I’ve coauthored this paper, forthcoming in Political Behavior, which uses signatures on ballot petitions in Arkansas and Florida to measure the effect of signing a ballot petition on voter turnout. I have another coauthored paper in the works that examines who actually signs ballot petitions.

 

in Equatorial Guinea.

Now this is what “threats, harassment, and reprisals” look like when government regulations “seriously chill speech and association,” as attorney Jim Bopp and the plaintiff’s in Doe v. Reed failed to show when challenging the state of Washington’s public release of signed petitions for Referendum 71,  an effort by social conservatives to repeal the legislature’s bill granting same-sex civil union protections.

In fact, if the politically-motivated arrest of a supporter of Referendum 71 in Washington for suspicion of murder had occurred, U.S. District Court Judge Benjamin Settle likely would have supported an as-applied challenge to Washington’s Public Records Act.  But alas, as Settle noted, “… if a group could succeed in an as-applied challenge to the PRA by simply providing a few isolated incidents of profane or indecent statements, gestures, or other examples of uncomfortable conversations that are not necessarily even related or directly connected to the issue at hand, disclosure would become the exception instead of the rule.”

Justice Antonin Scalia wrote pointedly in his concurring opinion in Doe v. Reed why public disclosure is necessary, and how it can embolden citizens in the U.S.

There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self governance…Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Rather than a threat to individual liberty, public disclosure is a bulwark against government oppression, as we’re seeing in Equatorial Guinea.

Big news on ballot initiative disclosure today from the United States District Court in Tacoma, WA. The federal judge granted summary judgment in the Doe v. Reed remand, dismissing the remaining as-applied challenge to the application of Washington’s Public Records Act disclosure requirement for signature pages of Referendum 71, an effort to repeal the legislature’s bill granting same-sex civil union protections.

The opinion, following Justice Scalia’s wisdom that public disclosure is necessary and belittles the weak factual record produced by the plaintiffs, noted that “if a group could succeed in an as-applied challenge to the PRA by simply providing a few isolated incidents of profane or indecent statements, gestures, or other examples of uncomfortable conversations that are not necessarily even related or directly connected to the issue at hand, disclosure would become the exception instead of the rule.”

Ruling here and some excerpts, (via Rick Hasen):

More from the opinion:

Applied here, the Court finds that Doe has only supplied evidence that hurts rather than helps its case. Doe has supplied minimal testimony from a few witnesses who, in their respective deposition testimony, stated either that police efforts to mitigate reported incidents was sufficient or unnecessary. Doe has supplied no evidence that police were or are now unable or unwilling to mitigate any claimed harassment or are now unable or unwilling to control the same, should disclosure be made. This is a quite different situation than the progeny of cases providing an as-applied exemption wherein the government was actually involved in carrying out the harassment, which was historic, pervasive, and documented. To that end, the evidence supplied by Doe purporting to be the best set of experiences of threats, harassment, or reprisals suffered or reasonably likely to be suffered by R-71 signers cannot be characterized as “serious and widespread.”

……

Considering the foregoing, Doe’s action based on Count II falls far short of those  an as-applied challenge has been successfully lodged to prevent disclosure of information otherwise obtainable under the PRA. Thus, the State’s undoubtedly important interest in disclosure prevails under exacting scrutiny.

While Plaintiffs have not shown serious and widespread threats, harassment, or reprisals against the signers of R-71, or even that such activity would be reasonably likely to occur upon the publication of their names and contact information, they have developed substantial evidence that the public advocacy of traditional marriage as the exclusive definition of marriage, or the expansion of rights for same sex partners, has engendered hostility in this state, and risen to violence elsewhere, against some who have engaged in that advocacy. This should concern every citizen and deserves the full attention of law enforcement when the line gets crossed and an advocate becomes the victim of a crime or is subject to a genuine threat of violence. The right of individuals to speak openly and associate with others who share common views without justified fear of harm is at the very foundation of preserving a free and open society. The facts before the Court in this case, however, do not rise to the level of demonstrating that a reasonable probability of threats, harassment, or reprisals exists as to the signers of R-71, now nearly two years after R-71 was submitted to the voters in Washington State.

According to a recent Field Poll, which comes on the heels of similar findings in a  PPIC poll, Californians still like the institution of direct democracy, although support has tapered off quite a bit over the years.

Over half those polled this fall think that statewide ballot propositions are a “good thing,” with only 13% viewing the process in a negative light.  Back in 1978, on the heels of Proposition 13, 83% of those surveyed in a Field Poll said it was a “good thing.”

What do Californians like? By a margin of 56% to 32%, those polled support having propositions on general election ballots, which will be the case following the June 2012 primary election, as Governor Brown just last week signed Senate Bill 202.

The poll also reveals that a majority of Californians trust fellow citizens via the ballot propositions more than the state legislature to “do what is right on important government issues.”  As I wrote back in September:

Reforming the initiative process in California is an easy task compared to the one really plaguing California. The real issue facing the state is whether the state legislature will reform itself so that Californians will regain confidence in the legislative process. This will take considerable effort, but until it is achieved, Californians will continue to invest their trust in the initiative process, as flawed as it may be.  And if the legislature doesn’t clean up its own house soon, the citizens of California may take to the initiative to do it themselves.

If the California legislature continues to fail to govern responsibly, citizens (and corporate interests) will respond by turning to the initiative and popular referendum, as the mechanisms provide immediate response, if not ideal representation, of the interests of those living in the state.

As I’ve said publicly time and again, I’m unequivocally ambivalent about direct democracy. I’ve written a book critical of the populist rhetoric (faux populism) of ballot measures, and another praising the “educative effects” of direct democracy. My dozens of articles on direct democracy are empirically driven, as I’ve tried to keep a normative-neutral stance in my academic writings. Direct democracy is by no means a perfect system, but neither is representative democracy.

As with every other state, the record of direct democracy in California is certainly mixed.  Direct democracy just happens to be more prevalent in California than most other states. It trails only Oregon in the number of initiatives that have been qualified for the ballot since the state adopted the process in 1911.

Over the next century, hundreds of initiatives will again surely become qualified for the ballot.  Just this last week, Governor Jerry Brown took a courageous step to improve the process by signing Senate Bill 202, which now limits California ballot initiatives to November elections.  Besides the expected charges that the bill will help Democrats by having initiatives on the ballots in higher turnout elections, critics of SB 202 claim that citizens may be overwhelmed by the number of propositions that are expected to appear on general election ballots. Yet since 1912, California has averaged only 6.3 initiatives every two-year election cycle. Certainly, potential voters can handle this level of initiatives. Indeed, the state managed to survive the 1914 ballot, which had more than 40 statewide measures (initiatives, popular referendums, and legislative referendums)!  (Citizens wound up rejecting 11 of the 17 initiatives.)

Despite its flaws,there’s much to admire about the initiative process in California. The state has one of the best disclosure laws on the campaign financing of ballot measures, and as I’ve written elsewhere, it has solid laws regulating the circulation of petitions.

To be sure, reforms could be made to the state’s s initiative process. First, California does not make signatures submitted on initiative and popular referendum petitions, which could reduce fraud in the signature gathering process, as the Supreme Court of the United States recognized in its 2010 decision, Doe v. Reed. Second, is the only state that permits the process where the legislature may neither amend nor repeal an initiative statute. Both of these areas should be addressed by the state legislature in the coming years.

The process ofdirect democracy, as practiced in California over the past century, certainly has exhibited considerable vulnerabilities. There’s room for improving the system.  But over the years, it also has served as a “gun behind the door,” as Woodrow Wilson–a critic of direct democracy–reluctantly referred to the initiative process. It has kept the state legislature in check, given citizens a voice, and helped to engage the electorate and affect candidate campaigns. No political system is perfect, including California’s hybrid democracy, but it has lasted a century and it will no doubt continue to endure for years to come.

Derrick Bell, the first African American dean of a non-historically black school of law, and long-time professor at Harvard and NYU law schools, passed away yesterday at age 80.

In addition to pioneering “critical race theory,” Bell penned a seminal essay in 1978, on the dangers of direct democracy towards minorities.  Bell, in his Washington Law Review article, “The Referendum: Democracy’s Barrier to Racial Equality,” argued that ballot measures could perpetuate racial discrimination, increasingly so as racial barriers are simultaneously being lowered in representative democracy.  As such, the courts, Bell contended, should use heightened scrutiny assessing whether the civil rights of minorities are diminished via plebiscite.  Concerned with the populist tropes of some ballot measures, Bell warned, “Although the racial motivation is hidden, its effects are not; and the damage to minorities and to the integrity of a representative government can be as severe as that of the overtly racist laws existing in the country before 1954.”

For more empirical research on direct democracy and minority rights, see my review essay with Caroline Tolbert, as well as this article by Don Haider-Markel and his coauthors.

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