When ballots get stuffed

It was a bittersweet election for liberal-leaning voters in California. Barack Obama took the White House and Democrats expanded control of both houses of Congress. But after a bitter fight, voters also narrowly passed a ban on same-sex marriage that overturned a state court ruling in May that had seen more than 11,000 gay and lesbian couples rush to tie the knot. There was even the uncomfortable question of whether the same African-American voters who flocked to elect Obama were otherwise socially conservative and helped tip the scales against gay marriage.

The California result seemed to be a replay of the past decade, in which conservatives were able to circumvent legislatures and to advance their agenda by using the machinery of direct democracy. There are 24 states that allow citizens to put measures to a vote by collecting sufficient numbers of signatures on petitions. Such ballot measures on cultural wedge issues have helped draw conservative voters to the polls. Some activists have argued that George W. Bush owed his re-election in 2004 to an anti-gay marriage measure on the ballot in Ohio—the state that clinched his re-election.

But this election was different. The California gay marriage ban turned out to be a high-profile exception in a year that saw widespread successes for liberal causes. There were 153 initiatives on U.S. ballots this time, of which 61 came from citizens. According to the Ballot Initiative Strategy Center (BISC), a group that promotes liberal ballot initiatives, 26 citizens’ measures could be classified as conservative, and only six passed. Meanwhile, voters passed a variety of progressive measures—from new money for renewable energy in Missouri to expanding state health care for children in Montana, allowing stem cell research in Michigan, decriminalizing small amounts of medical marijuana in Massachusetts, permitting “death with dignity” assisted suicide in Washington state, and sanctioning paid sick leave in Milwaukee, Wis.; and in California giving calves, pregnant pigs, and egg-laying hens enough living space to turn around freely, lie down, stand up, and fully extend their limbs. Voters also rejected measures that would have toughened abortion laws in California and South Dakota, and voted down a particularly stringent measure in Colorado that would have bestowed legal personhood onto fertilized eggs.

Several conservative measures did pass: a ban on adoption by unmarried couples, including same-sex couples, in Arkansas; bans on gay marriage in California, Florida and Arizona; and Nebraskans voted to overturn affirmative action programs. But more were defeated. Coloradans rejected a ban on affirmative action. Massachusetts voters rejected a measure that would have eliminated the state income tax; voters in North Dakota and Oregon voted against tax cuts; and voters in a New Hampshire city rejected a revenue cap on government spending (while those in another approved it).

“Despite California, there were tremendous victories for progressives, winning important initiatives of our own and beating back right-wing-backed initiatives across the country,” says Kristina Wilfore, the BISC executive director. It didn’t happen by accident. Labour unions and other advocacy organizations had been pushing for years to better understand and use the ballot process. Wilfore’s group was created a decade ago to help lay the groundwork for such victories, including identifying potentially successful issues through targeted opinion polling and the education of local activists in using the ballot process.

The ballot process can be expensive and risky. If a measure fails, lawmakers may be reluctant to embrace the issue in the future for fear of public backlash. The cost of winning ballot initiatives depends on the issue, the size of the state and the size of the media market—anywhere from half a million dollars to more than US$60 million spent by both sides in the California gay marriage fight.

In some cases, wedge-issue politics can backfire. In Colorado, for example, the state Right to Life group supported a “personhood initiative” that defined “the term ‘person’ to include any human from the moment of fertilization.” The position was considered so extreme that it led to a rift among anti-abortion groups over whether it would do more harm than good to their cause, and a conservative congresswoman who backed it lost her seat. It was defeated three to one. However, its defeat has sparked the creation of a new group, Personhood USA, dedicated to putting similar initiatives on other ballots.

Regardless of which issues dominate in a given year, there is strong evidence that states that allow ballot initiatives have higher voter turnout, says Daniel Smith, a political scientist at the University of Florida in Gainesville who studies ballot initiatives. He estimates that in elections held between 1970 and 2006, voter turnout increased by two percentage points for every initiative. The biggest impact came in mid-term congressional elections, while the impact in presidential years was negligible because the race to the White House generates enough heat on its own. Smith found that even in 2004, once he controlled for competitive races, none of the 11 gay marriage initiatives drove turnout that year. His studies and those of others suggest that the gay marriage issue did not flip Ohio to Bush in 2004: Smith found that turnout was not any higher in counties that had higher support for the gay marriage ban than others.

Smith says it remains an open empirical question whether the surge of voter turnout for Obama helped pass California’s gay marriage ban. Exit polls suggested that black voters opposed gay marriage by wide margins, and gay activists have called for a confrontation with black churches over the issue. But Smith says the sample sizes in exit polls are so small it is hard to tell. He doubts that the “Obama surge” contributed to passing the ban because the first-time voters Obama reeled in were disproportionately young—and generationally more likely to support gay marriage. In addition, first-time voters are less likely to vote on every measure on the ballot than more experienced poll-goers.

There is, of course, an obvious tension between direct democracy and principles of constitutional and representational government. The day after the election, the American Civil Liberties Union, Lambda Legal and the National Center for Lesbian Rights launched a lawsuit in the Supreme Court of California, arguing that a popular vote can’t overturn the judiciary’s ability to uphold equality rights. “A major purpose of the constitution is to protect minorities from majorities,” said ACLU of northern California staff attorney Elizabeth Gill.

Another criticism is that the initiatives often don’t come from the grassroots, but from nationally orchestrated strategies. One leading force pushing anti-affirmative-action initiatives onto state ballots has been a Republican activist and former regent of the University of California, Ward Connerly, who turned against racial preferences out of a belief they hurt Asian and white students.

But direct democracy has always been controversial in America. Ballot initiatives got their start in the U.S. in the late 1880s in mostly western and some southern rural states, often driven by farmers wanting to wrestle some power away from state legislators they considered to be dominated by railroad interests, according to Smith. The first state to allow ballot initiatives was South Dakota in 1898, but the first state to actually use the process was Oregon in 1904. One of the first measures there called for the direct election of the state’s representatives to the U.S. Senate (they were appointed by state lawmakers at the time). Early ballot measures in various states also touched on taxes, women’s suffrage, and the ability of voters to elect party nominees for higher office, rather than leaving the choice to party bosses. Regulation of alcohol was another theme.

The growth of direct democracy soon faced a major legal challenge. In 1911, a telephone and telegraph company in Oregon that was opposed to a new tax measure asked the U.S. Supreme Court to strike down the ballot process on the grounds that it violated the U.S. constitution’s guarantee of a “republican form of government” for every state. It argued that ballot initiatives were “subversive of the principles upon which the republic was founded.” The top court effectively side-stepped the issue, ruling in 1912 that the question was a political one and outside the jurisdiction of the judges.

Legal controversies aside, the system has the benefit of forcing both sides to make their case to the voters and engage their supporters. Wilfore sees a long list of issues that her group will explore for future ballot initiatives: health care, renewable energy, paid sick days. “We are going to embark on a listening tour to talk to national and state organizations to say what happened in your states, what issues should we poll on, is there a consensus on what works across states.”

Grover Norquist, head of Americans for Tax Reform, an anti-tax group that has pushed some ballot measures, says he’s not particularly disappointed by the scorecard for conservative issues this year, noting that voters defeated several tax increases as well. “In North Dakota, we wanted to cut the income tax in half, but the governor said he’d cut the property tax instead.” He says the losses were due to 2008 being “more of a Democratic year.” He predicts future initiatives on racial preferences, spending transparency, and the power of organized labour.

Norquist calls ballot initiatives indispensable to passing structural reforms such as term limits or spending limits. “When there is an argument between people and the governing class, the only way to win it is an initiative,” he says. “You can’t get one of the parties to take your side, because they is that.”