Initiative, referendum processes must be used with caution

Posted on November 16, 2006 | Type: Op-Ed | Author: Thomas C. Patterson
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Arizonans decided 19 ballot propositions this election, the most of any state. That's a lot of direct democracy. Maybe its time to ask how well its all working.

Our states founders were very sure they wanted the people to have the privilege of direct access to the ballot. They saw it as a fundamental protection against unresponsive government, even a popularly elected one. Citizens were given the rights to strike down enactments of the Legislature (referenda) or bring measures to the ballot themselves (initiatives).

But if this process provides an occasionally needed corrective, its not the best way to make law. The legislative process, while hardly perfect or above abuse, provides for hearings and debates.

Bills must clear several hurdles to become law and, importantly, may be amended. Initiatives, however, are written by interest groups and often contain obvious flaws.

Yet once they are approved for the ballot, they must be swallowed whole and passed or defeated exactly as written.

For example, Proposition 202, now our minimum wage law, has a provision that violators, in addition to specified fines and punishment, may be assessed any other appropriate relief by a court or commission trying the case. This violates standard principles of lawmaking. Citizens are entitled to know the maximum penalty for an offense. Under our system of separation of powers, its not appropriate to empower courts to just do whatever they wish. This error would have been easily identified in the legislative process and amended out. On the ballot, there was no way to correct the error.

ALL OR NOTHING

Moreover, voters have no ability to delete disliked portions of a ballot measure. The constitutional amendment banning gay marriage may have passed if not for the provisions regarding domestic partners. The section of the property rights initiative dealing with regulatory takings was unpopular with many who favored reining in eminent domain abuse. In the legislative process, these matters could have been separated. Ballot initiatives are set in concrete.

The initiative process is ill-suited to deciding measures that are technically complex. Voters know their minds about smoking bans and public benefits for illegal residents. But the vast majority went to the polls last Tuesday not understanding the basic issues at stake in the propositions dealing with state trust lands. The Legislature had been unable to resolve the matter because of its complexity, obscurity and powerful competing interests.

But these inherent difficulties are precisely the reason that state land trust reform should never have been on the ballot.

Voters dont have the time or staff to conduct thorough research into propositions. Many based their vote on the sponsorship of the measures, rather than their content. Fortunately, enough voters followed their instinct to reject proposals they didn't fully understand that both propositions failed.

Finally, the process can be especially unfair to unpopular minorities. Our founders were well aware that direct democracy can easily become a tyranny of the majority. Today racial, ethnic and gender groups enjoy constitutional protection. But smokers do not. They are highly unpopular and, due to their numbers, unable to defend themselves politically.

So smokers got it good and hard this election. Smoking was banned even in those establishments whose owners and customers desired it. And smokers, through an additional 80 cents per pack tax on cigarettes, were designated the sole sponsors of a health and education program for preschoolers. We used to justify cigarette taxes by pointing to the higher health costs incurred by smokers. Now, we just want the money.

REFORM PROBLEMATIC

Several reforms have been suggested. but none seem too promising. We could require more signatures. However, signatures are generally bought through the use of paid solicitors. Increasing the requirement would exclude measures that lacked funding, not merit. Prohibiting payment for signatures would also be problematic and probably unconstitutional.

Voters should also keep in mind that mistakes made at the ballot are permanent. The Voter Protection Act assures that the legislature can never amend laws passed by the people, no matter what.

We had our wild binge this year. Its time to sober up and use this important protection with the careful thought it deserves.

East Valley resident Tom Patterson (pattersontomc@cox.net) is a retired emergency room physician and former state senator.

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