A total of 24 states allow voters to change laws on their own by collecting signatures and putting initiatives on the ballot. It’s healthy that the entrenched political class should face some real legislative competition from initiative-toting citizens. Unfortunately, some special interests have declared war on the initiative process, using tactics ranging from restrictive laws to outright thuggery.
The initiative is a reform born out of the Progressive Era, when there was general agreement that powerful interests had too much influence over legislators. It was adopted by most states in the Midwest and West, including Ohio and California. It was largely rejected by Eastern states, which were dominated by political machines, and in the South, where Jim Crow legislators feared giving more power to ordinary people.
But more power to ordinary people remains unpopular in some quarters, and nothing illustrates the war on the initiative more than the reaction to Ward Connerly’s measures to ban racial quotas and preferences. The former University of California regent has convinced three liberal states — California, Washington and Michigan — to approve race-neutral government policies in public hiring, contracting and university admissions. He also prodded Florida lawmakers into passing such a law. This year his American Civil Rights Institute (ACRI) aimed to make the ballot in five more states. But thanks to strong-arm tactics, the initiative has only made the ballot in Arizona, Colorado and Nebraska.
"The key to defeating the initiative is to keep it off the ballot in the first place," says Donna Stern, Midwest director for the Detroit-based By Any Means Necessary (BAMN). "That’s the only way we’re going to win." Her group’s name certainly describes the tactics that are being used to thwart Mr. Connerly.
Aggressive legal challenges have bordered on the absurd, going so far as to claim that a blank line on one petition was a "duplicate" of another blank line on another petition and thus evidence of fraud. In Missouri, Secretary of State Robin Carnahan completely rewrote the initiative’s ballot summary to portray it in a negative light. By the time courts ruled she had overstepped her authority, there wasn’t enough time to collect sufficient signatures.
Those who did circulate petitions faced bizarre obstacles. In Kansas City, a petitioner was arrested for collecting signatures outside of a public library. Officials finally allowed petitioners a table inside the library but forbade them to talk. In Nebraska, a group in favor of racial preferences ran a radio ad that warned that those who signed the "deceptive" petition "could be at risk for identity theft, robbery, and much worse."
Mr. Connerly says that it’s ironic that those who claim to believe in "people power" want to keep people from voting on his proposal: "Their tactics challenge the legitimacy of our system."
He’s not alone. Liberal columnist Anne Denogean of the Tucson Citizen opposes the Connerly initiative, but last month she wrote that BAMN "is showing a disgusting lack of respect for the democratic process and the right of all Arizonans to participate in it." She detailed how members of this organization harass petitioners and film people who sign the petition, while telling them they are backing a racist measure.
The police had to be called when BAMN blocked the entrance of a Phoenix office where circulators had to deliver their petitions. "BAMN’s tactics," she concluded, "resemble those used by anti-abortion activists to prevent women from entering abortion clinics."
But BAMN proudly posts videos on its success in scaring away voters, or convincing circulators to hand over their petitions to its shock troops. "If you give me your signatures, we’ll leave you alone," says a BAMN volunteer on one tape to someone who’s earning money by circulating several different petitions.
What about voters’ rights to sign ACRI’s petitions? BAMN organizer Monica Smith equates race-neutral laws with Jim-Crow segregation laws and slavery. She told Tuscon columnist Denogean that voters are simply being educated that ACRI is "trying to end affirmative action . . . We let them know it’s up on the KKK’s Web site." Mr. Connerly has repudiated any support from racists.
Other opponents of Mr. Connerly deplore the blocking and name-calling. Arizona State Rep. Kyrsten Sinema told me that initiatives have been used to pass ideas such as campaign finance and redistricting reform often opposed by entrenched legislators. "People have a right to sign a petition, hear the arguments and then vote," she says. Ms. Sinema thinks Arizonans can be persuaded to vote down ACRI’s measure, much as they voted down a ban on gay marriage in 2006.
The war against citizen initiatives has other fronts. This year in Michigan, taxpayer groups tried to recall House Speaker Andy Dillon after he pushed through a 12% increase in the state income tax. But petitioners collecting the necessary 8,724 signatures in his suburban Detroit district were set upon. In Redford, police union members held a rally backing Mr. Dillon and would alert blockers to the location of recall petitioners. Outsiders would then surround petitioners and potential signers, using threatening language.
Mr. Dillon denied organizing such activity. Then it was revealed two of the harassers were state employees working directly for him. Another "voter educator" hired by the state’s Democratic Party had been convicted of armed robbery. After 2,000 signatures were thrown out on technical grounds, the recall effort fell 700 signatures short.
Ever since voters in virtually every state with direct democracy passed term limits in the 1990s, state legislators have been hostile to the process. Now Montana, South Dakota, Nebraska and Colorado have all passed legislation to prohibit people from out-of-state from circulating a petition, and also to ban payment to circulators on a per-signature basis.
To his credit, Colorado’s Democratic Gov. Bill Ritter vetoed such curbs. In March, a Sixth Circuit federal appeals court panel unanimously ruled that an Ohio law barring per-signature payment violated the First Amendment. Similarly, a Ninth Circuit panel just voted unanimously to strike down Arizona’s residency law for circulators.
Some judges think the "blocking" of signature gatherers has gone too far. In 2006, Nevada Judge Sally Loehrers decreed a "civility zone" that barred opposing sides from coming within arms’ length of each other at petition signing sites. "The blockers were off the streets within two days," says Paul Jacob, the head of Citizens in Charge, which promotes the initiative process.
Last year, Mr. Jacob was charged with conspiracy to defraud the state of Oklahoma in a bizarre prosecution that claimed he brought in out-of-state signature gatherers in violation of the state’s residency requirement. Yet local public sector unions opposed to Mr. Jacob hired out-of-state outfits such as the Voter Education Project, an AFL-CIO offshoot that specializes in harassing signature drives.
Representative government will remain the enduring feature of American democracy, but the initiative process is a valuable safety valve. So long as elected officials gerrymander their districts and otherwise make it nearly impossible for voters to oust them, direct lawmaking will be popular. That’s why attempts to arbitrarily curb the initiative, or to intimidate people from exercising their right to participate, must be resisted. It’s a civil liberties issue that should unite people of good will on both the right and left.