Pearl River Recently, we looked at interesting developments in using artificial intelligence and internet applications to advance direct democracy in countries as varied as Taiwan and Brazil. There are other forms of direct democracy still practiced old school. Political and economic pundits have gone into high gear about competing voter initiatives on the ballot in California on taxing billionaires. Some twenty of so US states still allow some form of voter direct initiatives to reach the ballot with the force of law. This is not unique to the United States, since thirty other countries as of 2019 allow such initiatives.
Nearing the 250th anniversary of the US and its status as one of the oldest continuous democracies in the world, even if imperiled, one might casually think that allowing citizens to have the ability to initiate laws and trigger a voting referendum would be universally supported, but if so, you would be mistaken. Conservatives and generally Republican policy, both nationally and state by state adamantly stands in opposition to such voter attempts to influence governance. Of course, fear by elites of the masses of voters is even older than 250 years in the US and strongly influenced the writing of the Declaration of Independence and the US Constitution.
Taking away the rights for citizens, both progressive and conservative, to initiate laws, even in red states, is bad politics. Once voters have a governing tool, taking it away doesn’t have good optics. In state after state, these rights have been restricted, most commonly as conservatives simply raised the threshold of how many signatures are required to reach the ballot in order to make the task seem daunting. Often that has not worked, so they have found another chokepoint in blocking these efforts right at the grassroots by going after the petitioning canvassers. This has also been the trick in trying to restrict voter registration. Florida helped lead the way several years ago by attaching criminal penalties to any error that were so onerous that even the League of Women Voters were unwilling to risk being involved in voter registration.
The effort by the legislature in Arkansas is a good example of how one state went after the petitioners. In this case, a federal judge ruled against the practices as violating the First Amendment protections of free speech and such voice in the political process. The restrictions were so extensive and detailed that they border on the absurd.
The court ruled unconstitutional laws that required canvassers to:
- read the ballot title aloud or have petition signers read the ballot title before signing,
- recite a government-scripted message that petition fraud is a crime,
- verify voters’ identification before they could sign petitions,
- publicly disclose paid canvassers’ personal information prior to signature gathering,
- submit additional post-circulation affidavits,
- pause signature collection during the petition process, and
- reimburse the state for publication costs.
The court also ruled in favor of two individual plaintiffs challenging Arkansas’s restrictions on disqualifying offenses that preclude someone from serving as a paid canvasser.
This case isn’t over yet, because several other restrictions are still going to trial. The judge’s ruling was based on a summary judgment that these restrictions were unconstitutional on their face.
The point is impossible to miss. Conservative opponents of direct democracy are going after the canvassers, as they tried in Arkansas, piling on some many restrictions and requirements to the petitioning process that having to obey the law would making petition gathering impossible. Many other states have gone after payment practices for petitioners, and, like Arkansas, they have tried to either restrict who can petition or criminalize any error.
State legislators are hoping that by embedding the devil in the details of the process, they can hide their hands and resist any citizen accountability. If we want to protect what’s left of democracy, we need to all stand up for the right of citizens, conservative or progressive, to access the initiative and referenda process of creating laws through petition.