Everyone is talking about Trump’s victory, but what else happened in the US on November 8th?
In addition to the presidential election, the US voted on Ballot Measures. This electoral exercise is quite different than the presidential one, which has been heavily criticized these last couple of days. The process of ballot measures allows US citizens to make new or recently passed legislation subject to the popular vote. This initiative emerged in the Progressive Era in the 20th century to counteract monopolies within the state legislatures.
How does it work? Citizens must apply to obtain an official petition serial number and then circulate the petition for signatures from voters. If the initiative collects enough valid signatures (the required number varies from state to state), it can be put to popular vote. Arizona, California, Colorado, North Dakota, Oregon and Washington are the states in which more than the 60% of initiatives have taken place. Since 1900, 14,000 measures have been decided by popular vote (61% approved and 39% defeated). The process of direct democracy allows citizenry to directly engage and participate in policy making.
A lot happened this year through ballot measure. Below are only a few that caught my attention. Some are very progressive measures, especially those in the state of California, while others can be seen as a pushback to recent progressive victories:
- California, Proposition 64 (passed, 55.8%) legalizes marijuana, regulates the marihuana industry, establishes state taxes on sales and cultivation, exempts medical marijuana from taxation and authorizes resentencing and destruction of prior records for marijuana convictions.
- Florida, Amendment 12 (passed, 72%) gives each county the option of requiring a criminal history record check and a waiting period (of 3 to 5 days) before the sale of any firearm.
- Washington, Initiative 732 (failed, 41.5%) orders a carbon emission tax on the sale or use of certain fossil fuels and fossil-fuel-generated electricity.
- Colorado, Proposition 106 (passed, 64.6%) allows any mentally capable adult with a medical prognosis of death by terminal illness to receive a prescription for medication that, self-administered, can bring death.
One special case is Amendment 71 in Colorado:
- Colorado, Amendment 71 (passed, 56.4%) requires a more extensive geographical distribution of registered voters signing the petition and 55% approval instead of a simple majority (for those amendments repealing provisions in the Constitution the simple majority rule still applies).
A response to critiques that Colorado state constitution was easily changed, the Colorado Imposition of a Distribution Requirement for Citizen-Initiated Constitutional Amendments Initiative, known as Amendment 71, was included in the ballot and passed. The campaign slogan was “Yes on 71. Raise the bar. Protect our Constitution.”
This was the result:
The ballot was written as follows:
Shall there be an amendment to the Colorado constitution making it more difficult to amend the Colorado constitution by requiring that any petition for a citizen-initiated constitutional amendment be signed by at least 2 percent of the registered electors (1) who reside in each state senate district (2) for the amendment to be placed on the ballot and (3) increasing the percentage of votes needed to pass any proposed constitutional amendment from a majority to at least fifty-five percent of the votes cast, unless the proposed constitutional amendment only repeals, in whole or in part, any provision of the constitution? (Notes are mine)
(1) The signature of registered voters is a new requirement (it previously required active voters). This is a very restrictive measure for any initiative. The number of registered voters is always greater than the number of active voters in a state and registered voters can be very difficult to track in comparison to active voters. Citizens that voted in the previous elections can be easily counted. In districts with a high rate of registration such as college districts or big cities, gathering the 2% of signatures of registered voters can be an almost impossible task.
(2) The more extensive geographical distribution (2% of registered voters, not active voters, in each of the 35 state senate districts) can assure a more representative model. But collecting signatures not only in heavily populated urban areas but in sparsely populated rural areas increases the costs of the initiative process. Increasing the costs advantages private interest petitions, which people benefitting from enactment can fund.
(3) Dane Waters of the Initiative & Referendum Institute states that the supermajority requirement (55% of approval) for changes to the constitution as opposed to the simple majority for amendments repealing existing provisions in the constitution “is just fundamentally wrong,” as it benefits attempts to repeal provisions to the constitution and harms initiatives to enhance its protections.
The passing of this amendment, whereby the strictest distribution requirements are implemented, is a clear attempt to restrict people’s right to the initiative process. A more extensive geographical distribution and the required 2% of valid signatures (registered voters in every district) increase the costs of the initiative process as the communications and pedagogical strategies and the signature collection need to be wider. The higher costs benefit the richer.
Amendment 71 is a clear example of the tension between constitutionalism and direct democracy. This process raises questions such as: How far the mechanisms of constitutional reform can be modified by those same mechanisms? Is it problematic to limit democracy and favor constitutionalism?
*Ana María Ramírez Mourraille is a researcher at the Center for the Study of Law, Justice and Society (Dejusticia).
Photo credit: Giuseppe Milo