Hitting Pause on Ballot Initiatives: How State Legislatures Can Ensure Good Citizen Lawmaking While Still Respecting Popular Will

January 14, 2019

By: Reeana Keenen

In my last post, I discussed the merits and drawbacks of ballot initiatives as a form of direct democracy. The main contention with ballot initiatives is whether, in practice, they reflect popular will. In D.C. this past summer, the D.C. Council cited this concern when they decided to overturn Initiative 77, which had been approved by a 12 percent margin of voters in the same election that allowed many of those same Council members to secure their Council seats. The Council claimed the low turnout in the primary election on which the ballot measure appeared was so low it could not reflect the true will of the people. The Council further claimed that Initiative 77 passed with too narrow a margin to allow it to stand.

However, this argument does not hold water, at least in the case of Initiative 77. Claiming that the margin of approval for the ballot measure was too narrow to reflect the clear intention of the voters goes against D.C.’s own automatic recount and ballot initiative recount thresholds of 1 percent. This means there is a presumption of validity for elections that have been certified and have a margin greater than 1 percent. Initiative 77 clearly meets this threshold of presumptive validity.

In deciding whether to overturn the initiative, the D.C. Council held a public hearing that lasted over twelve hours and included testimony from numerous people—253 people signed up to testify. During the hearing, the Council heard predominately from restaurant owners and some tipped workers, but the debate was certainly not one-sided. Those in favor of Initiative 77, or at least in favor of allowing it to stand after it was passed with 56 percent majority vote, sharply criticized the Council’s move to repeal the initiative outright, suggesting that it merely be amended. One Council member proposed an amendment to Initiative 77 that changed the timeline for increasing wages and included provisions on mandatory sexual harassment training and a hotline to report wage theft anonymously—two of the server-generated criticisms of Initiative 77 at the hearing. The amendment was rejected in an 8-5 vote, and the repeal bill was adopted instead.

The Initiative 77 saga illustrates the inevitable tension between voter and legislative will when initiatives land on the ballot. D.C. is that overturns ballot initiatives despite sizable margins of approval. Voters continue to express dissatisfaction with their legislators, and this problem seems unlikely to go away any time soon. Ballot initiatives are a quick-fix to voter dissatisfaction; they offer a work-around for voters to make changes without interference from their legislators. But, this work-around cannot serve its purpose if legislators easily and routinely repeal ballot measures that have been certified.

In California, where voters routinely use ballot measures to express their policy preferences, the state legislature is prohibited from overturning initiatives except by submitting another bill to the electorate to approve the measure to overturn or amend the original initiative. Arizona likewise requires voter approval to overturn or amend a passed ballot initiative, but allows the legislature to amend initiatives with a three-fourths majority of both legislative chambers only if the amendments are in line with the purpose of the initiative. Some states, such as Alaska, Nevada, North Dakota, Washington, and Wyoming allow the legislature to alter ballot initiatives only after some specified time has passed in which the initiative has been effective—with North Dakota requiring the longest amount of time, seven years. Six states, including Arizona, require a supermajority in both legislative chambers to overturn or amend passed ballot initiatives. However, California and Arizona are the only two states that require changes or repeal to be approved by the voters.

While each of these procedures afford some protection to voter will, they do not address the valid concerns raised by both legislators and voters surrounding legislative alteration of ballot initiatives. Imposing a time-passage rule before legislators can amend or repeal an initiative risks forcing voters and state governments alike to live with a law that may have negative consequences that were unforeseen at the time the initiative was passed. For example, if an initiative is neutral on its face but leads to adverse policies or applications of the law that are discriminatory in their effect, the state should not have to live with that law for two (or seven, if in North Dakota) years before being able to amend the law (although, where initiatives are discriminatory in effect, the voters potentially have other means of unburdening themselves of those initiatives through recourse to the courts). Voters and legislators should be able to collaborate to fix a bill before it is enacted in a way that solves the drafting errors while still respecting voter will. Likewise, time passage and supermajority alteration requirements do not necessarily reassure voters that their voice is being respected because these methods pit legislatures against voters in a contest of wills.

In D.C., automatic recounts occur when the margin of victory is 1 percent or less, and for initiatives or recalls, a person may also petition the court for a recount if the margin of victory is 1 percent or less. If the margin of victory is this low for ballot initiatives, then legislators should have to ask for a recount before any type of repeal action is taken. When the margin of victory is greater than 1 percent but less than 10 percent, where legislators could still have concerns whether the vote reflects popular will, then a should be triggered to hold the initiative from being enacted until the legislature can verify popular support.

This pause mechanism should encompass a period of notice and comment, and the legislature should be required to submit proposed amendments and alternative bills during this notice and comment period, too. When the notice and comment period has ended, a special election should be held to vote on the original, amended, and replacement bills. After the vote, if the winning measure has less than a 10 percent margin, the legislature would have the option of deciding whether to allow the new measure to be enacted.

The special election would serve as a clean slate in that it would reflect the most recent and most deliberative form of popular will on a particular issue. This system would still allow voters to make their voices heard, while ameliorating legislators’ concerns that voters were confused. It would also allow the legislature to shore up clunky drafting in a way that reflects voter intentions. It would make the process more deliberative and may even improve voter impressions of their legislators by making the process more collaborative. Likewise, this system would encourage participation in the democratic process whereas the repeal processes currently in place could lead to further voter disengagement from the political process.

Ballot initiatives certainly have their drawbacks, but they also serve important democratic functions. As long as we allow ballot measures in some states, we should make sure those measures have a chance of being enacted. Otherwise, we risk fostering further distrust between voters—who are already dissatisfied with our current political system—and their representatives. The system I’ve proposed, while not perfect, provides the opportunity for voters and their representatives to bridge this divide.