Politicians always claim to support democracy, but they often come up with creative ways to limit the influence of pesky voters. Now members of the political class in several states are going after voters' most powerful tool.
Twenty-four states currently allow voters to write their own laws through the initiative process, sidestepping gridlocked legislatures to pass statutes or constitutional amendments. Conservative voters have used the tool to impose term limits and curb racial quotas. At the same time, liberals have used initiatives to pass minimum-wage laws and tobacco taxes that were often blocked by legislatures where lobbyists held sway.
It's just such citizen democracy that has irked the establishment in states such as Colorado, California and Oregon—so the political class is trying to rein it in.
State courts, especially in Florida and Oregon, are striking down ballot measures with abandon, usually on the grounds that they deal with more than one subject. In Montana, for example, a 2006 initiative limiting growth in the state's budget was declared invalid because it authorized judges to modify the spending cap. A district judge ruled that provision represented a second subject.
Meantime, state legislatures are cracking down on the signature-gatherers that are the heart of the initiative process. Last month, the California state Senate passed a bill requiring those collecting signatures to wear large badges indicating whether they are volunteers or paid workers, whether they are registered to vote, and if so, where. A second bill has passed the Senate that would ban paying workers per signature, forcing them to be paid by the hour instead.
But in no state has the assault on the initiative process been more relentless and sustained than in Colorado, where it's being led by state Senate President Brandon Shaffer and a liberal civic group called Colorado's Future. This year, both houses of the legislature passed a requirement that any change to the state's constitution be passed with 60% voter approval, rather than the current simple majority. (It failed to become law only because the two houses couldn't reconcile their differing versions.)
Other Colorado laws are already strangling the initiative process. In 2009, the legislature passed a measure inviting opponents of an initiative to go after its sponsors personally: It gave every Coloradan the right to file a legal challenge for fraud against a petition. And any petition sponsor can be held personally liable for wrongdoing committed by others carrying the same petition.
The suspicion that the law was meant to curb popular democracy and not fraud was confirmed when Colorado's secretary of state reported in 2010 that in the previous decade it had "not identified any instances . . . of forgery or fraud" in the initiative process.
Nonetheless, the provision ensnared Jon Caldara and Linda Gorman, proponents of a 2010 ballot measure that would have given Coloradans the right to privately contract for health care. The measure narrowly lost, perhaps because 50 of its signature-gatherers were accused of fraud by political opponents. But the only fraud alleged was that circulators from other states had put down a local address to meet the requirement that they use "a Colorado residence." Never mind that during the petition process a federal judge threw out a state law preventing out-of-state workers from collecting signatures, rendering the requirement of a Colorado address void.
Mr. Caldara and Ms. Gorman were sued by private parties under the 2009 law and were nearly bankrupted by attorneys fees before they were removed from the case. "If that hadn't happened, I faced the prospect of hundreds of thousands in legal bills," Mr. Caldara told me. His concern is shared by liberal groups. "The law definitely has a chilling effect because it's hard to imagine groups like ours being able to bring measures to the ballot now," says Danny Katz, state director of Colorado's Public Interest Research Group.
This month brought another assault against the initiative process, this time by current and former state legislators from both major parties. The group seeks to invalidate Colorado's Taxpayer Bill of Rights.
Passed by voters in 1992, it limits the growth of state spending to population growth and inflation, and it requires a vote of the people to raise taxes. The suit claims that the 20-year-old law should be thrown out because it violates the U.S. Constitution's requirement that every state have a republican form of government, in which the authority to govern is reserved for elected officials.
Elena Nunez, program director for the liberal advocacy group Colorado Common Cause, says that protecting the right of initiative is critical, no matter who wins at the ballot box. "We've only been able to pass the sunshine and campaign finance laws we need through the initiative," she told me. As for complaints the ballot is too cluttered by initiatives, she notes that two-thirds of the constitutional changes placed on Colorado's ballot since the state adopted the initiative in 1912 were put there by the legislature.
It's fashionable these days for elites to disparage popular democracy. "The longer that people live in California, it seems, the more likely they are to be misinformed, and possibly brainwashed into ignorance," sniffed the Economist last April in a 16-page special report slamming that state's initiative process. But in reality, the initiative process serves as a popular check on out-of-touch legislators and reminds everyone that it's the voters who should be in charge of the politicians, not the other way around.
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