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Don't Like the Ballot Measure Voters Approved? Just Ignore It, Some Lawmakers Say.

In state capitals around the country, lawmakers are trying to block voter-approved policies. Critics say it's "lawlessness" that represents the new political climate.

mesnard
Arizona state Senate President Steve Yarbrough, left, and House Speaker Rep. J.D. Mesnard filed an amicus brief to block the minimum wage increase that voters approved in November.
(AP/Ross D. Franklin)
State lawmakers have always been skeptical about letting voters decide public policy. Lately, some have been downright hostile.

South Dakota GOP legislators are poised to repeal a ballot measure that passed just this past November. It calls for a range of ethics changes, including public financing of campaigns, limits on campaign donations, the creation of an independent ethics commission and a ban on gifts from lobbyists. 

"It's a real stick in the eye of the people of South Dakota," said Liz Kennedy, director of the democracy and government reform program at the liberal Center for American Progress. "It's one thing when it's a policy change like minimum wage, but this is the voters saying 'our government is not working for us right now,' and the government is saying 'we reject the rules that you have imposed on us.'"

Legislators are preparing to kill the law on an "emergency" basis, meaning that voters can't overturn their work through a subsequent referendum.

The situation in South Dakota has drawn considerable media attention, but lawmakers are also seeking to block ballot initiatives elsewhere.

"It's pretty blatant, this attempt to shut down citizens' voices and their role in direct democracy," said Kellie Dupree, communications director for the Ballot Initiative Strategy Center, a progressive group that sponsors ballot measures. "You don't get to decide which election results you're going to accept. I would go so far as to say it's lawlessness."

In Maine, Republican Gov. Paul LePage has a recurring habit of defying the stated will of voters. Over the past couple years, he had refused to release funds they approved for conservation and housing because he disapproved of the particular projects involved or wanted to use them as leverage to pressure the legislature to approve other programs. 

Now, LePage is trying to convince the legislature to block two initiatives that passed in November. One would increase the minimum wage, while the other would increase taxes to pay for schools. LePage argues that voters lacked all the necessary information to make an informed choice and that their decisions aren't legally binding.

"The legislature doesn't even have to enact it," LePage said last month, referring to the minimum wage hike. "This is a recommendation to the legislature of what the people are feeling."

There are ballot measures that are purely advisory, but voters' decisions typically have the force of law. Last year, the U.S. Supreme Court ruled against the Arizona legislature's attempt to reject a citizen initiative that gave redistricting responsibilities to an independent commission.

That ruling, however, hasn't discouraged Arizona lawmakers from trying to kill another voter-approved law.

Last month, Arizona House Speaker Rep. J.D. Mesnard floated the idea of filing a lawsuit to block a minimum wage increase that passed on the November ballot. As it turned out, the Arizona Chamber of Commerce and Industry filed such a suit, with Mesnard, state Senate President Steve Yarbrough and Gov. Doug Ducey filing an amicus brief in support.

The lawmakers contend that the minimum wage increase is illegal because it will cost the state money and therefore violate a prohibition against using general fund dollars to pay for voter-initiated laws. But Attorney General Mark Brnovich, who is defending the law before the state Supreme Court, notes that any general fund costs would be indirect and not mandated by the proposition. 

Ballot measures are contentious. They can be confusingly or misleadingly drafted and often lack context to help voters make better decisions. Some say that leaves even the voters skeptical.

"A lot of people are under the impression that ballot measures are not put there by regular citizens, but interests with deep pockets," said Susan MacManus, a political scientist at the University of South Florida at Tampa. "The public is suspicious of it, that's the other side of it."

Legislators and governors have a long history of challenging ballot initiatives since they undercut their authority. But the current instances of "outright defiance" toward approved measures from lawmakers are something new, said Craig Burnett, an expert on ballot measures at Hofstra University. He suggested it's part of the changing political climate, in which there's less respect for norms and more willingness to bend rules to achieve a desired outcome.

Some states offer protection from legislators amending voter-approved laws. Such laws can't be repealed for at least two years in Alaska and Wyoming, for example, while amending or repealing them in Arkansas and Nebraska require two-thirds votes in the legislature.

Sponsors of voter initiatives can also protect their policies by enacting amendments to the state constitution, rather than changes in statute, because it's more difficult to reverse constitutional reforms, said Burnett.

"Policy entrepreneurs are going to learn from this and not use statutory initiatives as much," he said.

In the meantime, Catie Kelley, an attorney with the Campaign Legal Center, called the trend of overturning the will of the voters "disturbing" and suggested that lawmakers must think they're safe for re-election and unaccountable to voters.

"The whole idea of having ballot initiatives is that there's some vehicle for voters to move a policy if lawmakers are unwilling to move it themselves," said Kelley. "If lawmakers are going to repeal it, or undermine it through the administrative process, it's really a lost tool for voters."

But one tool lawmakers can't take away from voters is their ability to kick them out of office as revenge. Only time will tell if they do. 

Alan Greenblatt is a senior staff writer for Governing. He can be found on Twitter at @AlanGreenblatt.
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