The Will of the People—Who Gets to Decide? Overturning Initiative 77 in D.C.

December 19, 2018

By: Reeana Keenen

While working in D.C. this summer, I came across flyers on restaurant windows imploring D.C. voters to “Save Our Tips! Vote No on Initiative 77.” Later this summer when D.C. voters passed the Initiative 77 ballot measure, I heard people exclaim that D.C. had voted to eliminate tips for restaurant and other tipped workers. In fact, though, voters approved a ballot measure to increase the minimum wage progressively for tipped workers, while leaving in place the possibility of tips as a source of income. The measure passed with 56% of the votes.

Almost as soon as the initiative passed, however, some D.C. Council members expressed their intent to overturn the measure, despite a 56% majority of voters in favor. The Council Members argued that the initiative did not reflect the will of the people because turnout in the election was low and the misinformation and confusion surrounding the measure was high. On Oct. 2, the Council decided in an 8-5 vote to overturn the initiative, and Mayor Muriel Bowser expressed her intent to sign the repeal legislation. But was this the right decision? Who gets to decide the will of the people?

The history of ballot initiatives in the U.S. dates back to colonial times, but not all states allow them. However, in 2016, over 100 ballot measures were slated for vote across the country, 76 of which were initiatives—meaning they arose from the people. While D.C. Council members questioned the legitimacy of Initiative 77 because of the low turnout (17%), this does not mean the initiative is a poor reflection of voter will. For one thing, the vote was held during a primary election, which could explain the turnout. The voter turnout for Initiative 77 is the same as the turnout that “secured several Council members’ primary victories, effectively guaranteeing them their reelection.” The Council members who voted to overturn the initiative also criticized the slight margin of victory. While we may question margins of victory that are so close they could be explained by a miscount of the votes, Initiative 77 passed by a 12-point margin. In D.C., the threshold for a close vote margin recount is 1%, which is well below the margin for Initiative 77. If D.C. generally allows votes to stand that have a greater margin than 1% for general and primary elections, why should it be any different for a ballot initiative?

Indeed, the argument for allowing a ballot initiative to stand, even in the face of slight margin of victory and low turnout, may be even stronger than for keeping general election results under similar voting conditions because ballot initiatives do not directly affect the composition of the legislature. Furthermore, ballot initiatives reflect a public will to bypass the traditional legislative process. Unlike traditional legislation, ballot measures such as Initiative 77 allow voters the opportunity to pass legislation that is important to them without having to risk political stalemate in the legislature. In theory, then, the fact that citizens are willing to propose and vote on a ballot measure should indicate to legislatures that the subject of the measure is so important to citizens that they saw fit to circumvent the legislature’s input. While it may be disappointing that less than 20% of voters showed up to vote for the initiative during the primary, the solution is to take steps to increase voter engagement, not to ignore the voice of the few who did show up to vote.

Overturning a ballot initiative—even more so than a legislative referral—after voters have gone through extensive processes to comment on and eventually approve it poses a substantial risk of disincentivizing participation in the democratic process. If voters feel that their representatives can freely disregard their votes on issues that are important to them, what will keep them coming out to the polls in the future? Furthermore, ballot initiatives are often proposed as a check on unresponsive legislatures. If legislatures want to avoid ceding some of their influence to ballot measures, then they will adjust to be more responsive to what their constituents want.

The D.C. Council members here also argue they needed to overturn Initiative 77 because of the confusion surrounding the measure itself. While confusion around Initiative 77 and other ballot measures is evident from at least anecdotal evidence, the process for getting a measure on the ballot in D.C.—a process akin to notice and comment rulemaking—allows not only for objections to the proposed initiative but also an opportunity to ask questions. Furthermore, evidence also suggests that when voters are confused about a ballot initiative they refrain from voting on it, meaning that those who do vote likely understand the measure. Similarly, studies have found that when voters pass initiatives, they are no more likely to pass “bad” laws than are elected representatives. That the D.C. Council members decided to overturn Initiative 77 in light of these facts is akin to the Council supplanting its own judgment over that of its constituents.

In the second installment of this post, I will propose a framework for overturning ballot measures that addresses the Council’s concerns while still respecting the will of the people—who are naturally in the best position to express their will through measures such as Initiative 77.