Category Archives: direct democracy

Electoral College changes before 2024?

I don’t believe I’ve seen mentioned on ELB the effort to put the National Popular Vote Interstate Compact on the ballot next November in Michigan. As the Detroit Free Press reported a couple of weeks ago, supporters of the measure have been given “the green light” to gather signatures to put this issue to the state’s voters.

Were this effort to succeed, it would only add by itself 15 more electoral votes towards the necessary 270 for the compact to take effect. Right now, the compact has enough states on board for 195 electoral votes.

It is difficult, but not entirely impossible, to see the compact reaching 270 in time for 2024. Doing so would require its adoption in states, like Michigan, with the direct democracy option of a ballot initiative. I’m not an expert on the specific ballot initiative rules and procedures in Arizona, Florida, Maine, Missouri, Nevada, and Ohio (among other states), but some combinations of those states could get the compact to the magic number.

This all suggests that Michigan’s effort, especially if followed in other states, might test the precedent of the Supreme Court’s Arizona Independent Redistricting Commission decision and the Court’s current views of the so-called “independent state legislature doctrine” insofar as it applies to the Article II authority of state legislatures to choose the “manner” of appointing the state’s electors. I for one would not be surprised to see the current Court hold that the use of the initiative process, as in Michigan, to adopt the NPV interstate compact is a violation of Article II (either overruling or distinguishing the Arizona case). Whether one would agree or disagree with the merits of that judicial decision would be irrelevant to its role in preventing this approach to getting the NPV compact adopted before the 2024 election.

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“Has California’s unique brand of direct democracy gone too far? Recall is ultimate test”

LAT:

When California’s newly elected governor, Hiram Johnson, delivered his inaugural address on Jan. 3, 1911, he made a radical proposition.

My first duty, Johnson declared on that celebratory day, “is to eliminate every private interest from the government and to make the public service of the State responsive solely to the people.”

His words sent shock waves through halls of power accustomed to an easy exchange of money and influence. Determined to “arm the people to protect themselves” against such abuses, Johnson proposed amending the state Constitution with “the initiative, the referendum and the recall.”

The savvy electorate of the day understood that their governor, a Republican well-versed in the Progressive agenda, was arguing for voters to be given the right to place laws on the ballot through petition, to weigh in on laws passed by the Legislature and to remove public officials from office without cause or judicial procedure.

Ten months later, voters agreed, and representative democracy, the crowning achievement of the ounding fathers in 1787, now had a powerful rival — direct democracy — that would leave an indelible mark on California’s political landscape.

“The people of the State of California are ready to rule,” Johnson said. “They have the intelligence and the sense to rule.”

California, popularly heralded as fertile ground for personal reinvention, now had the ability to reinvent itself politically. Citizens, quick to slough off the trappings of the past, had tools for building their future, bringing a fluidity and dynamism to the legislative and electoral process that has only gotten stronger, if not exaggerated with time.

Today Johnson’s vision for California is in the final days of a campaign that kicked off in April when a little less than 5% of the population decided to recall Gov. Gavin Newsom, who took office in 2018 with almost 62% of the vote.

If the drama has at times resembled a sideshow with a traveling bear, a yogic healer and billboard celebrity among the 46 candidates, then it is a measure of how far the democratic spirit that Johnson championed has evolved.

Social media, celebrity candidates and attention seekers have altered the equation, but more than 100 years after Johnson’s reforms, there is no turning back.

“We have all been socialized in a state where we expect voters to directly flex their muscles,” said Thad Kousser, professor of political science at UC San Diego.

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“‘Tyranny of the minority’: Idaho Supreme Court rules voter initiative law unconstitutional”

Idaho Statesman:

Idaho Supreme Court justices on Monday unanimously ruled the state’s new law on citizen-led ballot initiatives to be unconstitutional and said it infringed on the public’s right to enact laws outside of the Idaho Legislature.

The opinion ruled in favor of Reclaim Idaho, the organization that spearheaded the successful Medicaid expansion initiative in 2018 and sued the Idaho Legislature in May. The Committee to Protect and Preserve the Idaho Constitution, a coalition of mostly Idaho attorneys, also joined Reclaim Idaho’s lawsuit.

The state’s highest court ruled that the law would have infringed on a fundamental right for a citizen-led initiative. The Legislature and Secretary of State’s Office “failed to present a compelling state interest for limiting that right,” the Supreme Court wrote.

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“Prop. 22 is ruled unconstitutional, a blow to California gig economy law”

LAT:

California’s giant ride-hailing and delivery companies suffered a setback Friday as a state Superior Court judge invalidated a 2020 ballot proposition that allowed Uber, Lyft, DoorDash, Instacart and other app-based businesses to classify theirworkers as independent contractors.

In a lawsuit brought by the Service Employees International Union and several drivers, Alameda County Superior Court Judge Frank Roesch ruled that Proposition 22 is unconstitutional and unenforceable.

That’s in part because the law, Roesch wrote, infringes on the power of the Legislature explicitly granted by the state Constitution to regulate compensation for workers’ injuries.

“If the people wish to use their initiative power to restrict or qualify a ‘plenary’ and ‘unlimited’ power granted to the Legislature, they must first do so by initiative constitutional amendment, not by initiative statute,” the judge wrote.

The judge’s ruling contains other grounds as well, including a single subject challenge.

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“Voters supported progressive policies on ballot initiatives. Republicans are pushing back.”

NBC News:

Some states have increased the number of votes required to pass ballot initiatives, while others expanded the spread of required petitioner signatures across the state to even bring it to the ballot. In other cases, legislators have put up roadblocks to organizer funding or even increased the required font size of the policy and limited the size of the paper the petition has to be printed on.

More than 125 bills have been introduced into 31 state legislatures to amend or change the referendum or ballot initiative process in 2021, according to data compiled by Ballotpedia for NBC News. So far 19 have passed and 31 were rejected, died in the legislative process or were vetoed.

Many of these new Republican-supported policies or other roadblocks are now being challenged in court, most notably in Florida, Idaho, South Dakota, Missouri and Mississippi.

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“Let the People Rule: How Direct Democracy Can Meet the Populist Challenge”

John Matsusaka has written this book for Princeton University Press that is well worth your time. Here’s the description:

Propelled by the belief that government has slipped out of the hands of ordinary citizens, a surging wave of populism is destabilizing democracies around the world. As John Matsusaka reveals in Let the People Rule, this belief is based in fact. Over the past century, while democratic governments have become more efficient, they have also become more disconnected from the people they purport to represent. The solution Matsusaka advances is familiar but surprisingly underused: direct democracy, in the form of referendums. While this might seem like a dangerous idea post-Brexit, there is a great deal of evidence that, with careful design and thoughtful implementation, referendums can help bridge the growing gulf between the government and the people.

Drawing on examples from around the world, Matsusaka shows how direct democracy can bring policies back in line with the will of the people (and provide other benefits, like curbing corruption). Taking lessons from failed processes like Brexit, he also describes what issues are best suited to referendums and how they should be designed, and he tackles questions that have long vexed direct democracy: can voters be trusted to choose reasonable policies, and can minority rights survive majority decisions? The result is one of the most comprehensive examinations of direct democracy to date—coupled with concrete, nonpartisan proposals for how countries can make the most of the powerful tools that referendums offer.

With a crisis of representation hobbling democracies across the globe, Let the People Rule offers important new ideas about the crucial role the referendum can play in the future of government.

And here’s my blurb of the book:

“Is the cure for populist anger around the world giving voters a greater say in governance through direct democracy? In Let the People Rule, John Matsusaka makes this counterintuitive argument by resorting to evidence and reason, not inflammatory rhetoric. A crucial, clearly written book for those who care about the fate of advanced democracies.”—Richard L. Hasen, author of Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy

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“Republicans Move to Limit a Grass-Roots Tradition of Direct Democracy”

NYT:

n 2008, deep-blue California banned same-sex marriage. In 2018, steadfastly conservative Arkansas and Missouri increased their minimum wage. And last year, Republican-controlled Arizona and Montana legalized recreational marijuana.

These moves were all the product of ballot initiatives, a century-old fixture of American democracy that allows voters to bypass their legislatures to enact new laws, often with results that defy the desires of the state’s elected representatives. While they have been a tool of both parties in the past, Democrats have been particularly successful in recent years at using ballot initiatives to advance their agenda in conservative states where they have few other avenues.

But this year, Republican-led legislatures in Florida, Idaho, South Dakota and other states have passed laws limiting the use of the practice, one piece of a broader G.O.P. attempt to lock in political control for years to come, along with new laws to restrict voting access and the partisan redrawing of congressional districts that will take place in the coming months.

So far in 2021, Republicans have introduced 144 bills to restrict the ballot initiative processes in 32 states, according to the Ballot Initiative Strategy Center, a liberal group that tracks and assists citizen-driven referendums. Of those bills, 19 have been signed into law by nine Republican governors. In three states, Republican lawmakers have asked voters to approve ballot initiatives that in fact limit their own right to bring and pass future ballot initiatives.

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“Courts Are Taking Away One of Americans’ Best Options for Fixing Voting”

David Daley for The Atlantic:

In 2019, writing the decision for Common Cause v. Rucho, Chief Justice John Roberts closed off the federal courts as an avenue for addressing partisan gerrymandering. But, Roberts insisted, the Supreme Court’s decision did not condone these excesses. Rather, another path for addressing structural electoral reform existed. Noting the success of several citizen-driven state-constitutional amendments passed by ballot in Colorado, Michigan, and Missouri the previous November, Roberts said that citizens still had the tools to make change.

Just over a year later, however, that hasn’t proved to be the case.

Voters in Arkansas, North Dakota, and Idaho took Roberts up on his suggestion to drive reform via citizen-led initiative or by amending their state constitution. In Arkansas, with two different amendments, citizens worked to establish an independent redistricting commission and also open primaries and institute ranked-choice voting. In North Dakota, they looked to strengthen overseas-military voting and election audits, open primaries to all voters, and enact instant runoffs. Idaho voters, meanwhile, sought to expand funding for public education. One by one, these initiatives have been knocked off the ballots this summer by state and federal courts, and for the most tendentious and technical reasons.

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“In secret recording, trainer for Unlock Michigan advises on unlawful tactics”

Detroit Free Press:

The company collecting signatures to strip Gov. Gretchen Whitmer of her emergency powers coached paid petition circulators on giving voters false information, illegally collecting signatures without witnessing them, trespassing on private property, and even lying under oath, a secretly recorded videotape shows.

The video showing Erik Tisinger, a trainer for the California signature company In the Field, Inc., was secretly recorded Sept. 4 by a representative of Keep Michigan Safe — the group opposing the Unlock Michigan effort — and made available to the Free Press.

The profanity-peppered training session provides an inside look at the world of paid signature gatherers and could potentially pose problems for Unlock Michigan’s attempts to certify the close to 500,000 signatures the group hopes to collect. It is the second example of irregularities in the Unlock Michigan signature collection process the Free Press has highlighted.

“This can be a real shady job,” Tisinger tells the trainees. “And when I say shady, I mean, people do all sorts of illegal s— all the time and never get caught. It’s really hard to get caught doing s— except for, like, forgeries.”

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Eighth Circuit Reverses in Arkansas Initiative Qualification Case, Holding Trial Court Should Not Have Lessened Requirements Due to COVID-19: Weird Ideas about “Severe Burdens”

Opinion here. A snippet:

Robert Allen is a registered voter in Arkansas undergoing chemotherapy to treat his stage IV bladder cancer. With the exception of medical appointments, Allen’s doctors advised him to stay home and limit in-person contact to his wife and healthcare workers. Adella Gray is a registered voter living in an Arkansas retirement community with over 400 other residents, all of whom, including Gray, are particularly vulnerable to COVID–19 because of their age. Both Allen and Gray want to sign AVF’s initiative petition but claim they cannot comply with Arkansas’s in-person signature requirement without putting their health and the health of others at serious risk. This, they claim, prevents an AVF canvasser, like Bonnie Miller, from safely soliciting their signatures….

Even absent section 7-9-103(a)(1)(B), however, one can imagine relatively simple ways for individuals like Allen and Gray to safely comply with the in-person signature requirement during the COVID–19 pandemic. As Arkansas illustrates in its brief, for example, AVF can advertise its petition using traditional and social media and bring the sterilized petition to Allen’s and Gray’s homes where it can be safely transferred with little to no contact. No doubt, the in-person signature requirement imposes real burdens. We are just not persuaded it imposes severe burdens. Strict scrutiny is therefore not applicable.

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Oregon: “Federal District Court Grants People Not Politicians an Extension”

Release:

A federal district court issued a preliminary order granting People Not Politicians, a broad and diverse coalition to create an independent citizens commission for Oregon, relief to qualify its redistricting reform initiative for the November 2020 election. The judge’s order allows the Secretary of State to decide by 5:00pm Monday, July 13, 2020 to either accept People Not Politician’s signatures as submitted, or accept a reduced number of signatures to 58,789 and allow additional time to gather until August 17, 2020.

Judge Michael J. McShane in People Not Politicians v. Secretary of State Clarno ruled in favor of People Not Politicians which executed a no-contact statewide signature gathering campaign in order to qualify Initiative Petition 57 (IP 57) for the November 2020 ballot while observing Governor Kate Brown’s stay-at-home orders.

Judge McShane found that People Not Politicians exercised “reasonable diligence” in attempting to qualify for the ballot, specifically because of the hard work that the campaign did to do outreach, build a broad coalition and plan creatively to collect signatures in light of the COVID-19 pandemic.

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