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Defeating the Voters

Across the United States, state autocrats are spurning democratic majorities

Representative democracy, with all its checks and balances and enlightened deliberation on behalf of busy citizens, was a pretty good contrivance. Excellent job by Montesquieu in beginning to work the essential ideas out in The Spirit of the Laws! Nicely done, James Madison et. al, in building on such ideas, drafting a United States Constitution, and explaining it all in The Federalist Papers! Kudos to John Stuart Mill, who came along and refined the theories admirably in Considerations on Representative Government. Democracy, after all, is a hard problem to solve, and the 1700s and 1800s produced concepts that led to mechanisms that at least got the American experiment with republican government off to a promising start.

It took a great while before some obvious flaws were corrected. Almost a century after the Constitutional Convention in Philadelphia before slavery was ended. More than 130 years before women won the right to vote. John Adams wasn’t entirely right when he wrote in 1814 that “Democracy never lasts long. It soon wastes, exhausts, and murders itself. There never was a democracy yet that did not commit suicide.” But ours has been looking exhausted for a long time now, and sometimes seems on the verge of suicide. We are far enough along now that foundational principles such as “the consent of the governed” and “the common good” and “the rule of law” are just dead words on a page to most people. You could probably find more widespread belief in astrological portents than in the proposition that “here, the people rule.” 

The current news cycle focuses our attention on the “constitutional crisis” in Washington, D.C., in which a corrupt executive branch proclaims itself immune from the legitimate countervailing power of Congress. But the failures of representative government in the United States are evident from coast to coast. Anyone who has spent time observing the workings of a state legislature—whether in Boston or Boise, Madison or Jefferson City—has seen how democratic deliberation is made into a farce: a few leaders control the calendar, they confer with former lawmakers who are now highly paid lobbyists, and they determine what will and will not happen. Congress is currently in a power struggle against the president; but what you see on the state level is legislative power brokers constantly at war against insurgent members who push for even the mildest reforms, against outside activists who presume to interfere in the insiders’ business, and quite often against the plainly expressed will of the voters themselves.

Anyone who has spent time observing the workings of a state legislature—whether in Boston or Boise, Madison or Jefferson City—has seen how democratic deliberation is made into a farce.

Maine gives us a perfect example of this legislative arrogance. You might think that since states are thought to be “laboratories of democracy” you could get a legislature—especially in a low-stakes place like Maine—to consider a proposal to try the reform known as Ranked Choice Voting. Also known as “instant runoff voting,” the system allows voters to rank their preferences when choosing between multiple candidates, thus making it less likely a third-party “spoiler” candidate will lead to a winner most voters don’t favor. It’s clear the ancient “first-to-the-post” method of electing someone by a slim margin who might not even have majority support is not necessarily the ultimate and final perfection of the democratic process. But of course legislatures seldom want to make any change to the system that put them into office. So in 2015 a Maine Committee for Ranked Choice Voting gathered signatures to put the question on the ballot. It was approved by 52 percent of the voters in November of 2016. But in October of the following year, the Maine legislature voted to suspend the law until 2021, with conditions that proponents believed essentially repealed it. So activists next gathered 80,000 signatures for a “people’s veto” to reverse the legislature. And in June of 2018, the voters again approved the measure. It was in place for the November elections last year and resulted in the election of Democrat Jared Golden to Congress—the first member sent to Washington by Ranked Choice Voting.

More and more, the hope for basic democratic responsiveness in government involves this kind of work. The right of the people to propose laws through ballot initiatives, of course, is one of the reforms that gained steam in the Progressive Era, when the problem of recalcitrant legislatures controlled by moneyed interests was well understood. This kind of direct democracy has a long and checkered history, especially in a state like California that uses it extensively. It led to the damaging property tax limits of Proposition 13 in 1978, and it also allows well-funded special interests to push measures that might bamboozle ordinary voters.

Yet today’s progressives and liberals are taking matters to the ballot—to raise the minimum wage, to expand Medicaid funding, to extend voting rights, to legalize marijuana, and to end gerrymandering—and often winning. There are many signs this ferment has the enforcers of the status quo in statehouses struggling to clamp down on citizen meddling. In several notable cases, legislatures have reversed, or attempted to reverse, proposals after they’ve been approved by voters. “It’s not a new phenomenon by any means, but I haven’t seen this much brashness on the part of legislative bodies in the six years I’ve been covering these, or even in the last decade or so,” Josh Altic, who tracks ballot measures for Ballotpedia, told Sarah Holder of CityLab last year.

There were 167 statewide ballot measures before voters in 2018 in 38 states, according to Ballotpedia, and 116 were approved. Most of those were not terribly controversial and legislatures quietly moved ahead to codify the laws. But the “brashness” Altic spoke about was especially apparent last December, as Republicans in lame-duck sessions tried to reverse some of the effects of the “wave election” the month before.

In Michigan, which has strong GOP majorities in both chambers due to gerrymandered districts, voters approved a proposal to take the drawing of district lines out of the hands of politicians, setting up an independent redistricting commission. A package of voting reforms, allowing for same-day registration and easier absentee voting, also passed. (The Detroit News reported that the powerful DeVos family’s political fund spent at least $1.2 million against the redistricting measure.) In December, Michigan’s lame-duck lawmakers attempted to alter the laws but ran short of time. However, they succeeded with a devious strike against the initiative process itself. A bill put new restrictions on how signatures for petitions are gathered, requiring certain amounts from all regions in the state—the typical Republican Party preference to have land outvote people. The bill was rushed to outgoing Republican governor Rick Snyder, who signed it before being replaced by a Democratic governor in January. (The bill has obvious discrimination problems and may eventually be overturned as unconstitutional.)

There were 167 statewide ballot measures before voters in 2018 in 38 states, according to Ballotpedia, and 116 were approved.

Missouri has seen similar Republican resistance to voter preferences.  The heavily GOP legislature had blocked attempts to raise the state’s minimum wage, and then attempted to keep the issue off the ballot. Nevertheless, a minimum wage increase was approved by 62 percent of the voters in November. Arkansas voters also approved a minimum-wage hike—by 68 percent.

But what really rattled the Missouri lawmakers was a package of “Clean Missouri” reforms that amended the state constitution to require stronger ethics rules and required legislative (but not congressional) district lines to be drawn by a non-partisan demographer. After 62 percent of the voters approved the proposals, an effort began immediately to undermine or reverse them. GOP-connected political operatives set up a “Fair Missouri” group, while Republicans in the legislature started scheming to put a new constitutional proposal on the ballot for 2020 to replace the one just approved. Part of that strategy involves an old trick Republicans have used traditionally throughout the South: to cynically appeal to African American leaders by arguing that fair districts will hurt the chances of African Americans to get elected. It’s always been a fine trade-off for the Republican Party to set aside a few “minority seats” as long as they can engineer artificial majorities for themselves.

Missouri has the “trifecta” of state control, with its House, Senate, and governorship held by the GOP. Governor Mike Parson told the Associated Press in December that he not only favors a new constitutional amendment that would reverse the redistricting reform, but that he favors new barriers to the citizen initiative process in Missouri. As Republicans in the legislature sought to draft new proposals to reclaim their power to gerrymander their own districts, the St. Louis Post-Dispatch editorialized last month that “It’s all indicative of a mindset that shows pure contempt for the voters’ will. These lawmakers are barely even bothering anymore to pretend they care what the voters think.”

Disdain for direct democracy is not solely a Republican reflex. Some years ago, when I was employed to report on the doings of the heavily Democratic Massachusetts legislature, I watched a voter-approved “Clean Elections” law go straight into the statehouse dumpster. The powerful House Speaker more or less announced, “We don’t like it, we won’t fund it, and that’s the end of it.” It died a quiet death. (He was later indicted for lying under oath about his role in a 2001 redistricting plan that discriminated against black voters in Boston and eventually pled guilty to obstruction of justice.)

Power concedes nothing without a struggle, regardless of which party holds the power.

Power concedes nothing without a struggle, regardless of which party holds the power. But in recent years the most blatant legislative attempts to nullify ballot initiatives and constitutional amendments have been in Republican states where the party fears losing its grip. Florida, the quintessential fifty-fifty state, is the site of a high-stakes battle now over voting rights for people convicted of felonies. A citizen-initiated constitutional amendment to restore voting rights to about 1.5 million Floridians was approved in November by a 64 percent to 35 percent margin. Yet now the Florida legislature has erected barriers that opponents say will work like a poll tax: new voters must prove they do not owe money in fines, court costs, or restitution before being cleared to vote. The restrictions could be signed into law this week by Florida Governor Ron DeSantis, a Republican who squeaked into office in November. The political stakes were noted in a recent Washington Post story:

Even a fraction of the number of potentially eligible felons could sway an election in a swing state where elections are often decided by slender margins. Donald Trump, for instance, won Florida over Democrat Hillary Clinton in 2016 by a margin of about 113,000 votes out of 9.4 million cast. Last year, DeSantis’s margin over former Tallahassee mayor Andrew Gillum (D) in the gubernatorial race was about 32,000, and Republican Rick Scott defeated incumbent Democrat Bill Nelson by 10,000 votes in the Senate race.

This is one of the most remarkable features in American politics, especially since 2010, when Republicans made a concerted campaign in key states to win legislative and executive power in time to re-draw district lines in their favor: tiny margins can sometimes lead to hugely consequential changes. As David Daley recently noted in the Detroit Free Press, the swing states of Michigan, North Carolina, Pennsylvania, and Ohio sent forty-three Republicans and only fifteen Democrats to Congress through the 2012-2016 cycles, despite the fact that total vote counts in those states usually break evenly between Democrats and Republicans.

The recent anti-gerrymandering voter initiatives in Michigan and Missouri (there was one Ohio, too) have attempted to pry this power away from party potentates. The new rules would govern elections held after 2020. But meanwhile federal courts just in recent weeks have ruled that partisan districts in Michigan and Ohio are so unfair they must be redrawn in advance of the 2020 elections. Republicans want to hold off in the hopes that the U.S. Supreme Court will rule in June that partisan gerrymandering cannot be held to be unconstitutional.

Thus, it’s possible that all the hard work Republicans have done since 2010 to hold onto power even with razor-thin margins, combined with the election of a president who lost the popular vote, who then appointed two Supreme Court justices, will result in further frustration of the majority of voters well into the next decade. Representative democracy is debased throughout the nation. But direct democracy is a sign people haven’t yet given up.