By Kelley Beaucar Vlahos, ,
Published May 20, 2015
In many states across the country, the will of the people is being undermined by the will of the politicians.
Dozens of ballot initiatives that have been passed by citizens over the last decade are being repealed, ignored or challenged in court by state legislators or federal agencies.
"What you've seen is behind-the-scenes judicial actions and where that is not possible, you've seen outright bans," said Dane Waters, president of the Initiative and Referendum Institute in Washington, D.C.
Defenders of such state actions, however, say the legislatures are just doing their jobs.
Laws, whether passed by legislatures or by the people, are not perfect from the outset and should be subject to scrutiny and modification, even if that means returning it to the people more than once, said Jennie Drage-Bowser, a policy analyst with the National Conference of State Legislatures.
Every state's rules regarding ballot initiatives are different. Currently, 27 states have a ballot initiative process, which in every case requires an expensive signature-gathering campaign before a measure can go before the voters. The process makes it difficult to get initiatives on the ballot in the first place.
Some states have legislative bodies that can repeal unpopular ballot initiatives with a simple vote when they do get on the ballot. And in some other states, the legislature can put the question back on the ballot to attempt to overturn it.
As an alternative to both, the courts get involved on behalf of the government.
Some of the many issues that have drawn controversy are those regarding animal rights and assisted suicide statutes elected through the initiative process.
Others include medical marijuana and term limits on the very lawmakers who try to overturn the ballot initiatives.
According to U.S. Term Limits, 19 states have passed limits to the number of years state officials can serve, most of them within the last decade.
But in 13 of those 19 states, term limits are being threatened just as they are kicking in on lawmakers.
"It is really quite unbelievable," said Stacie Rumenap, president of U.S. Term Limits, which helped to get several initiatives passed. "It's really unfair. It shows why the initiative is so important in the first place. The legislators make laws to benefit themselves."
Drage-Bowser said Rumenap's assessment is way off base.
"I disagree with that accusation 100 percent," she said, noting that in no state has the legislature been successful in amending or repealing term limits, even if it is their right to do so. "I think [lawmakers] work really hard at what they do and are dedicated to public service."
While state legislatures have not been able to repeal term limits, they have had their interests pursued in the courts. The most graphic example is an Oregon court that recently struck down term limits supported by 70 percent of the voters.
In a lawsuit pursued by the state Legislature, the high court ruled that a ballot initiative could not affect more than one area of the constitution at a time. Since the term limits initiative passed in 1992 affects both district and statewide officials, it pertains to multiple sections of the state constitution, the court ruled.
While Oregonians are striving to put yet another initiative on the ballot for 2002, the court battle has left a sour taste in the mouths of citizens, said Rumenap.
"Basically, the Legislature did not want to put it on the ballot themselves and opted to have the court do their dirty work," she said.
State lawmakers opposed to medical marijuana laws have used the federal government to defend their positions.
Eight states have passed ballot initiatives approving the use of medical marijuana for sick patients since 1996. But in May the U.S. Supreme Court upheld a federal ban on the distribution of marijuana for this purpose, allowing the feds to jump in where state law enforcement is no longer allowed to interfere. Federal officials have cracked down hardest on California distributors, which are the largest and most organized in the country.
"From the very beginning, from the very day these things passed, the federal government has sought ways to thwart the will of the voters," said Allen St. Pierre, executive director of the National Organization to Reform Marijuana Laws.
St. Pierre said the federal government also works closely with state officials to help them subvert initiatives or to keep them off of ballots entirely.
In Oregon, where an initiative has already passed, the government has made medical marijuana so difficult to possess that the state is being taken to court. In Colorado and Arizona, the same initiatives had to come before voters and pass twice before the state legislatures would accept them.
Most recently in Ohio, supporters of an initiative that would send drug offenders to treatment, not jail, are charging the governor and other officials with using public money to wage a campaign against them. Gov. Bob Taft said he believes the measure is a "de facto decriminalization of drugs."
Drage-Bowser said legislators are well within their powers as representatives of the people to dispute initiatives' worth. "I think they're looking out for the best interests of their state," she said. "That's their job."
But St. Pierre said the greatest mistake politicians can make is to second-guess, or worse, act like a "mother-knows-best" legislator.
"To me, the cardinal sin is to have the people vote for something and then to call them stupid, easily misled, easily manipulated."