Laboratories Against Democracy

Drawing by Steve Benson/Arizona Republic, February 2010, via.

Our nation's laboratories of democracy, as Justice Brandeis called them, the state legislatures, don't seem very excited about democracy at the moment: downright hostile, in fact, according to some cool new reporting by Timothy Williams/NYTimes*: reacting to popular referendums by tossing them out, like South Dakotans' attempt to put some breaks on their legislators' socializing with lobbyists, which could have threatened the ALEC wine and cheese party:

The gatherings — 107 events in all during the Legislature’s 38-day session— are popular with lawmakers, but less so with the public.

South Dakota voters were sufficiently fed up in 2016 to pass a statewide ethics initiative that was meant to diminish the influence of lobbyists. But the Legislature in Pierre, the state capital, swiftly struck back: It repealed the referendum and replaced it with its own slate of bills, which critics denounced as a watered-down substitute — and a slap in the face to voters.

Governor Dennis Daugaard explained that the voters had been "hoodwinked". Similarly, Maine's Governor Paul LePage swore he'd never implement referendums in 2016 and 2018 demanding ranked-choice voting (he had a personal interest, since the change would prevent him from getting elected with 37.6% of the vote, as he did in 2010) and in 2017 to expand Medicaid under the Affordable Care Act—he said he'd rather go to jail than do that because "pure democracy... hasn't worked for 15,000 years."

There's an attempt to bothsiderize the issue—

Attempts to repeal or weaken voter-approved measures have taken place in both conservative-leaning and liberal-leaning states, from Arkansas and Florida to California and Massachusetts. Earlier this month, the City Council in Washington, D.C., overturned an initiative approved by voters in June that raised the minimum wage for servers, bartenders and others who rely mostly on tips.

—but it's not very convincing: it doesn't ever seem to be a case of a liberal government running roughshod over the expressed desires of a conservative populace, as the paragraph suggests.

The California example is about an effort by the Howard Jarvis Taxpayers Association nominally to force the legislature to follow proposition 73 of 1988, a measure to control campaign contributions that was only enforced for a couple of years and thrown out by the California Supreme Court in 1995; the HJTA, however, is not concerned about controlling campaign contributions but a wicked provision tacked on to the end of the initiative that seems to ban government funding of local elections, which the Supreme Court did not throw out, and which the Sacramento government decided to ignore in 2016 (they were three Republicans short of the required two-thirds majority)—and they weren't rejecting the popular will, even the popular will of 28 years earlier; there's no reason to think the voters who passed the campaign contributions limit were even thinking about banning government-funded elections. In fact prop 73 looks as if it was introduced by the Jarvis astroturf organization to confuse voters about a competing reform initiative in the same election, prop 68, that didn't include language on government funding, and succeeded (see the Common Cause amicus brief). (Unfortunately the California courts didn't agree, and the HJTA won the case.)

The Massachusetts case seems to be the legislature's response to the 2016 initiative legalizing recreational marijuana, and is mostly about wanting to take out more money in state taxes from the weed business; in the D.C. case, the Council may be overwhelmingly Democratic but it is favoring restaurant owners over workers. So all in all, no, it's basically just one side, the bad one.

*In reading up on this and trying to fill in gaps in Williams's story, I find that most of the reporting seems to have been done by by somebody else 15 months ago: Elaine Povich for the Pew Foundation's Stateline blog in July 2017. I hope the fact that the Times piece covers such similar ground is just a coincidence.