Vol. 33, No. 11
CBA President's Message to Members
The Shadow Side of the Right to Vote: The Ballot Initiative
by Steve C. Briggs
We think your elections are interesting.
|Steve Briggs and his wife |
Jeanne in front of St. Basil’s
Cathedral in Moscow’s
Red Square, August 2004
In the United States, you do not know who your
President will be, even after the election.
In Russia, we know who the President
will be, even before the election.
—Private aside by a guide at the
Kremlin, in Moscow, Russia
November. Elections. A time for reflection.
An unexpected opportunity in late August brought a last-minute trip to Russia. We traveled from Moscow down the Volga River through connecting canals and lakes, to St. Petersburg, with stops at small villages in between. Such a beautiful country and people. Such a difficult time.
The Russian people have a favorite saying: "It is not who votes that counts, but who counts the votes." Now, Russian President Putin wants to take away the right of the people to vote for their local governors. Our trip to Russia brought home just how precious is the most basic of our rights, a right that we tend to take for granted: the right to cast a vote that counts. Yet, the right to vote in Colorado has a shadow side—the shadow cast over our state constitution by the ballot initiative process.1
The Framers of our Constitution did not just create a constitutional democracy; they created a representative constitutional democracy. They realized that a pure democracy can be extremely inefficient, at least on a state or federal level. There are simply too many citizens and too many, often complex, issues.
The Framers also realized that pure democracy unchecked could be its own source of mischief. As nineteenth century U.S. Senator John C. Calhoun put it, "The Government of the absolute majority instead of the Government of the people is but the Government of the strongest interests; and when not efficiently checked, it is the most tyrannical and oppressive that can be devised."2 Founder James Madison pointed to the check on power resulting from a republic. He defined a "republic" as a country in which laws are made and administered, not by the People, but by representatives elected by the People.3
The U.S. Constitution thus provides in Article IV, § 4, that the United States will guarantee to every state of the United States "a republican form of government." As the U.S. Supreme Court long ago concluded, this necessarily implies a duty for the states themselves to provide a republican form of government.4 The Colorado Supreme Court, like James Madison, has recognized that this Guarantee Clause assures the role of the elected representatives in our system.5
We go to the polls in November to elect our representatives. It is the responsibility of these representatives to take the time to study proposed legislation and, only then, after thorough debate and consideration, vote on our behalf. This is how our votes count.
The Ballot Initiative—History and Trend
Remember the days when we could just go to the polls and vote for our representatives? No longer. Now we are confronted with a plethora of additional, often complex, questions to answer. Many of these are ballot initiatives. How have we come to this point?
The ballot initiative began to emerge more than a century ago, mainly in the western states. The first state to adopt the ballot initiative was South Dakota, in 1896; then Utah, Oregon, and Colorado since 1912. It grew out of the Reformist Movement, which focused on dishonesty in government. It also grew out of the Populist Movement, whose members shared a belief that elected representatives cannot be trusted with the business of government because of the corrupting influence of "big money," special interest groups, such as mining and railroad companies.6
With the ballot initiative, the system of checks and balances inherent in our legislative process is bypassed. When used properly and sparingly, the ballot initiative provides a different kind of check on our representative form of government. However, during the last decade, the relatively rare use of the initiative process has become commonplace. In the 2000 election, Colorado ranked fourth out of the fifty states in the number of ballot initiatives. The most typical initiatives in all the states have dealt with issues about which emotion runs high, such as affirmative action, immigration, gay rights, and taxes. Colorado has been no exception.
Ironically, over time, the initiative process has become the tool of those from whom the average citizen was supposed to be protected: big money, special interest groups. Today, it is relatively easy for a special interest group to arrange for petitioners at giant grocery stores and supercenters to collect enough signatures so that an initiative can be placed on the ballot. Such a special interest group can then finance a large campaign, with a media blitz of slogans and sound bites, using appealing, but sometimes misleading, initiative titles. Too often, the result is a measure that proves to have been poorly thought out or even misguided in fundamental concept. The risk is even greater with a complex measure that busy citizens cannot easily comprehend.
In Colorado, the problem with citizen ballot initiatives is not just its misuse by special interest groups. The problem is more serious. It is the misuse of the ballot initiative process to amend our state constitution.
Colorado’s Ballot Initiative Process
Our state ballot initiative process is set forth in Article V of the Colorado Constitution. It can be used to get a proposal on the ballot by gathering the signatures of registered electors in an amount equal to at least 5 percent of the total number of votes cast for all candidates for the office of Secretary of State at the previous general election. The proposal can then be enacted in the next election by a simple majority vote. The missing link is that Article V makes no distinction between legislative and constitutional enactments. This distinction is critical.
A constitution is a set of fundamental beliefs, traditions, and basic rules that sets forth the way a government is organized. It also is the higher law that establishes the limits on the powers of the persons or groups enacting statutes and administering the law.
Statutes are the enactments permitted by the constitution that address the nuts and bolts of running a government. Statutes also address perceived solutions to the problems of the current times—solutions that may work in one generation, but not the next.
It is important that we encourage social and economic experiments through statutory enactments. It is here that the ballot initiative has a role to play. When the legislature refuses to act, the initiative process allows the public to express its direct opinion with a simple majority vote. It is just as important to permit the modification of such statutory social and economic experiments at a later time, when experience proves that changes are needed. Presently, our state system does just that. Guided by the knowledge of experience, the legislature may enact any necessary changes, even to a ballot-initiated statute, within the system of checks and balances.
In contrast, federal and state legislatures do not have the authority to amend the respective constitutions by a simple majority vote—and for good reason. No characteristic of a constitution is more important than the fact that it can be amended only after much contemplation and discussion by the elected representatives, and then only with the widespread consent of the citizenry. This difficulty in amending the constitution recognizes that there is a need for continuity in the basic structure of government and in the fundamental rights a constitution protects. Article V fails to recognize this critical distinction between statute and constitution by permitting our state constitution to be amended by a simple majority vote.
Some special interest groups submit their proposals as constitutional amendments because they know that, unlike legislative enactments, constitutional enactments cannot later be amended by our elected representatives within our system of checks and balances, no matter how dire the need. Experience also has shown that legislatures are reluctant to ask voters to change voter-initiated enactments. These special interest groups also know that, as with an original ballot initiative, they can finance a media blitz to oppose the most thoughtful and needed change in any new ballot campaign.
The Colorado Constitution is thus littered with detailed economic and social experiments that have no place in a state constitution. The poster child, of course, is TABOR, a fatally flawed and failed economic experiment of convoluted complexity.7 Nevertheless, while TABOR is the biggest deposit in the litter box, it is only one of many. No matter how unwise such economic and social experiments may be, it is almost impossible to eliminate or even amend them once they are entrenched in the state constitution.
National groups now target Colorado for ballot initiatives because it is so easy to amend our state constitution.8 This November, three out of the four ballot initiatives propose constitutional amendments, with only one proposing a statutory enactment. Some are the same kind of economic and social experiments that should be enacted only as statutes. Once again, we have been asked to use the ballot initiative to abuse our state constitution.
Finding a Solution
In the long run, we need to amend our constitution to require, as does our federal constitution, something more than a simple majority vote of the citizenry. However, as one noted economist has put it, "in the long run we are all dead."9 We will all be long dead before voters approve a constitutional amendment taking away any of their direct voting power. The ultimate cure for the problem, though equally unlikely, would be a constitutional convention, convened for the broader purpose of writing an entirely new constitution, because the existing one has become too littered with conflicting and unworkable citizen-initiated amendments. A more realistic solution may be a lawsuit to establish that the combination of TABOR and other constitutional amendments have so constricted the ability of our legislature to function within our system of checks and balances that our constitutional right to a republican form of government has been violated.10
In the meantime, we as lawyers have to start educating Colorado citizens about the critical distinction between statute and constitution. We have to speak out when special interest groups seek to misuse the initiative process. We have to explain why our citizens should oppose a ballot initiative to amend our state constitution by adding yet another economic or social experiment—even if the proposal is one we would currently support as a statute.
This abuse of our state constitution has to stop.
1. Much of this material appeared in Briggs, "The Initiative Process Run Amok," Sunday Perspective Section, The Denver Post (April 6, 2003).
2. Calhoun, "Against the Force Bill," speech given on the Senate floor (Feb. 16, 1833). See generally Meriwether, Hemphill, and Wilson, eds., The Papers of John C. Calhoun (Columbia, SC: University of South Carolina Press, 1959).
3. See http://www.marksquotes.com/Founding-Fathers/Madison.
4. Minor v. Happersett, 88 U.S. 21 Wall. 162, 175 (1874).
5. Morrissey v. State, 951 P.2d 911 (Colo. 1998).
6. See generally Broder, Democracy Derailed: The Initiative Campaign and the Power of Money (New York, NY: Harcourt, 2000).
7. Briggs, "The CBA, TABOR, and the Judicial Funding Crisis," 33 The Colorado Lawyer 65 (Aug. 2004).
8. For just one example, see Greene, "Company Officials Bankroll Both Sides of Electoral-Vote Issue," The Denver Post (Sept. 29, 2004) at 1A.
9. Keynes, A Tract on Monetary Reform (London: Macmillan, 1924), Chap. 3, available at http://www.j-bradford-delong.net/Econ_Articles/
10. Some have suggested that a system that allows voters by a simple majority vote to directly enact "ordinary" laws, such as limits on sources for taxes and how to spend them, while requiring more than a simple majority vote of legislators to amend the voter enactments violates the constitutional requirement for a republican form of government. They further suggest it is the duty of the courts to void such laws. See generally Linde, "State Courts and Republican Government," 41 Santa Clara L.Rev. 951 (2001).
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