The Legislators Working to Thwart the Will of Voters

Updated on March 27 at 9:57 a.m.

When Kris Steele joined the Oklahoma house of representatives in 2001, he noticed that whenever a matter of criminal justice came up, legislators felt it was necessary to appear “tough on crime.” As a result, the state kept enacting harsher sentences and making more crimes punishable by jail.

In 2016, after leaving government, he spearheaded two ballot measures to reverse that trend. Both passed. But 2017 has seen legislators in states around the countries moving to try to reverse ballot initiatives passed by voters in Novembers election, seeking to roll back minimum-wage increases, tax increases, and other matters. In other cases, legislators are seeking to make it harder to place such initiatives on the ballot in the first place. And so despite his victory at the polls, the fate of Steele’s two measures remains uncertain.

Steele is a self-described conservative Republican, but the longer he sat in the legislature, the more he questioned the logic of ever-more-aggressive laws. He noticed that even though the sentences got tougher and tougher, and incarceration rates in the Sooner State rose and rose, sitting at No. 2 in the nation, and jails got more and more overcrowded, the state wasn’t seeing markedly lower crime rates or safer neighborhoods. (Oklahoma was unusual in making simple drug and property offenses felonies punishable by jail time.) The taxpayer tab for imprisoning so many people kept growing, and ex-cons struggled to find gainful employment because of their records.

“I began to say, wait a minute, I’m not going to be part of this sort of paradigm that is based on shallow and often hollow rhetoric,” Steele recalls. “A lot of elected officials measure their political worth or value based on those kinds of policy decisions. The body tends to make decision in relation to corrections policy based on emotion, fear, and anecdote, rather than on data, research, and facts. When you base your policies on emotion and anecdotes and fear, you tend to have policies that may not produce the best outcomes.”

Meanwhile, Steele rose, eventually becoming speaker of the Oklahoma House. He helped shepherd through some laws intended to reform the system, but the legislature never funded them—in part, he thinks because of the “tough on crime” imperative. In 2013, Steele ran into term limits and left the legislature, but he remained interested in reform in his new job as executive director of a nonprofit called TEEM.

“We did some initial polling and we realized that there was a pretty significant disconnect between the people and our elected officials when it comes to corrections policy, and primarily when it comes to a desire to address issues of addiction and mental illness with treatment rather than with punishment,” Steele said. “The best way we felt to ultimately change the path that we have been on forever was to bypass the political gridlock.”

He set about assembling a coalition that ran from leftist groups that saw criminal-justice reform as a matter of social justice to religious ones that saw it as a vocation to conservative ones that saw it as simple fiscal common sense. They placed two measures on the ballot in 2016, one reclassifying some drug and property crimes as misdemeanors, and the second directing the savings from de-incarceration to rehabilitation programs. Voters approved, passing both by comfortable margins.

That might have been the end of the story. But some legislators had other ideas. When the legislative session began in Oklahoma City in February, several legislators introduced bills that would roll back the reforms.

“Am I surprised to see this kind of pushback? Unfortunately, no. Am I disheartened? Yes,” Steele told me. “I would hope that our elected officials would focus on protecting and implementing the will of the people rather than trying to undo or usurp the will of the voters.”

He blamed an ongoing perception gap between legislators who still feel the need to appear tough on crime, despite the November results. Still, Steele was unsparing in his verdict.

“It’s indefensible,” he said.

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“This isn’t how democracy works,” said Justine Sarver, executive director of the Ballot Initiative Strategy Center, a nonprofit that works with progressive ballot campaigns. “You don’t get to pick and choose when you like a process and when you don’t.”

Sarver sees a trend of legislatures trying to restrict voters’ ability to make laws and amend state constitutions around the country. The popularity of initiatives has ebbed and flowed across the years, and the roles of defender and critic have been fluid. But there are a few factors that make the present moment especially ripe for such conflicts. First, Republicans dominate state legislatures around the country, thanks to favorable redistricting maps drawn after the 2010 Census, even in states with sizable Democratic-leaning voter bases that want more progressive policies. Second, while ballots sometimes function to deal with purely state-level concerns, policy fights are increasingly nationalized. Groups like BISC and the Fairness Project are working to coordinate state-level pushes around the country on liberal reforms like paid sick leave, minimum-wage hikes, or recreational marijuana. Their opponents are working at the national level too. In November, ProPublica and The New York Times reported on how major corporate lobbies, some convened under the auspices of the Koch brothers’ political network, have sought to push back on ballot measures.

The first battle of the year came in January, when South Dakota repealed a set of ethics reforms passed by voters, including limits of giving to campaign by lobbyists and the creation of an independent ethics commission. But there are several contentious issues still on the table.

In November, Mainers passed several contentious ballot measures. On one, they voted to legalize recreational marijuana for people older than 21. A second question asked voters to increase taxes on households making more than $200,000 annually to fund public education. Each of these passed by narrow margins. A third question sought to raise the minimum wage to $12 per hour by 2020, including specific language to raise the minimum wage for workers who receive tips, like waiters. That passed by an 11 percent margin.

Since then, lawmakers have taken up measures that would reverse or dampen ballot measures that passed in November. A law passed in January pushes back the timeline for some parts of marijuana legalization. Meanwhile, legislators are considering bills that would roll back part or all of the wage hikes. They’re cheered on by Governor Paul LePage, the Republican best known for racist claims and threats against lawmakers.

“The legislature doesn’t even have to enact it,” LePage said of the minimum-wage increase in December. “This is a recommendation to the legislature of what the people are feeling. You know, if you read the constitution, legislature can just ignore it, or they can modify, they can work with it.”

Unusually for LePage, this statement turns out to be basically true. An initiative that voters pass must be enacted, but the legislature can easily just pass another law that effectively erases it. It’s not hard to see why some opponents of these laws would oppose them; the Maine Restaurant Association, for example, has led the charge against the wage-increase for tipped workers, since it would force members to pay employees more.

Representative Stacy Guerin, a Republican from Glenburn, is sponsoring a bill that would reverse the higher minimum wage for tipped workers. Several Democrats have joined to co-sponsor the bill. Guerin’s family owns a restaurant-supply store, and she said she’s heard workers are actually making less now.

“We are already hearing reports of declining tips,” she said. “Servers are overhearing people saying, ‘Oh, they’re making minimum wage, you don’t have to tip them anymore.’ Nobody wants to make minimum wage,” but before the law, Guerin said, servers could make good money off tips.

Servers didn’t rally against the law ahead of the election, Guerin said, because they didn’t understand what the law would do, based on the short text on the ballot.

“Working people are busy and they don’t have the time to investigate the backstory on these ballot initiatives that have been forced on Maine by an out-of-state lobby,” she said.

Guerin, like lawmakers around the country who challenge ballot measures, can claim political support for what she is doing, but the clearest gauge of voter sentiment is the election in November. Moving to reverse that is, depending on one’s view, either an act of political suicide or an act of selfless leadership.

“I think it does take some political courage, but I absolutely believe it is the right thing to do for Maine servers,” Guerin said. “I believe this referendum was brought by out-of-staters that did not really have the values of Maine … I think they played Maine, and not for the good of workers. I am working for the good of Maine.”

The backers of the ballot measures see this not as principled leadership, but blatant disregard for popular will.

“It really does call into question the whole direct democracy if the legislature doesn’t implement them as the voters intended,” said John Kozinski, who works in government relations at the Maine Education Association and helped run the campaign to increase taxes for school funding.

Guerin’s concern that ordinary citizens weren’t really able to disentangle what the November initiative did is a common critique of popular referenda. Critics say voters are not always well-prepared to adjudicate difficult issues, and may make decisions that, however well-intentioned, turn out poorly.

“Sometimes an idea on the face of it seems like a brilliant idea, when in fact most of us don’t have a professional staff at our disposal,” said Jennie Bowser, a freelance writer who was a longtime observer of ballot initiatives for the National Council of State Legislatures. “Most of us don’t have a bird’s eye view of the budget. How our idea might mesh with the related policies around it. Sometimes initiatives are just not as fully thought through as they should be.”

That doesn’t sit well with advocates of direct democracy. “I find that deeply patronizing and paternalistic,” said Jonathan Schleifer, executive director of the Fairness Project, which coordinated state-level ballot initiatives to raise the minimum wage in November, and is now pushing back against attempts to roll back the increases via courts and legislation. “I would argue that having worked on Capitol Hill that most legislators aren’t qualified to make these decision. If you can trust someone to chose who to vote for, then why aren’t they qualified to decide the particular issues that decide their lives?”

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The quality of state legislatures around the country is, to understate things, mixed, and offering citizens the right to weigh in on key issues has a straightforward appeal. Yet the foundation of American governance is representative democracy, not direct democracy. Critics can find plenty of ballot measures that have had unintended consequences.

Some popularly supported measures end up being quickly struck down by courts as unconstitutional. Others don’t age well, like the spate of state bans on same-sex marriage passed in the mid-2000s, and later overturned by the U.S. Supreme Court; critics have argued for decades that civil rights cannot and must not be left to the whims of a voting majority.

The effects of a ballot measure are not always so immediately clear, or straightforwardly reversed. In California, the ballot is often cluttered with initiatives—17 of them in November 2016 alone—which has raised the familiar question of whether voters can possibly be expected to know the ins and outs of so many proposals. But set aside the process: What about the outcomes? The profusion of initiatives in California has handcuffed the state government, led to credit downgrades, and made the state by some measures “ungovernable.” (The Golden State’s credit rating has rebounded somewhat since its 2011 nadir.)

Colorado voters in 1992 amended the state constitution with a “Taxpayers Bill of Rights” (TABOR) that bars the state and local governments from raising taxes without voter approval and capped the amount the state could spend. The result was that even as the state’s economy boomed, spending on things like schools and infrastructure maintenance tumbled. Since TABOR was enacted, the state has moved to the left, and in 2005, frustrated voters approved a five-year suspension of some of TABOR’s caps. But despite the criticisms, TABOR remains in place.

Colorado’s situation is an extreme example, because TABOR is a constitutional amendment, which makes it especially difficult to reverse if voters have a change of heart. There are 24 states that give voters the right to put legislative issues to the ballot, but only 18 allow voters to pass constitutional changes.

The roots of the ballot-initiative process stretch back to the Progressive Era, when reformers sought a workaround to legislatures that were dominated by huge corporate interests. And advocates insist that despite their flaws, there remain cases where ballot initiatives are an essential tool.

“I’ve almost always lived in initiative states, and I have an absolute love-hate relationship with the process,” Bowser said. “It drives me crazy sometimes, but I wouldn’t want to live in a state that didn’t do it. There are some things the legislature just doesn’t want to do.”

It’s very hard to get legislators to pass measures, for example, that limit their own fundraising. In other cases, gerrymandered districts produce state legislatures that are to the left or—more likely in the current era of Republican dominance in state government—right of a state’s electorate. Such is the case in Washington state and Arizona, where voters passed minimum-wage increases by significant margins. In Washington, a GOP-led coalition controls the state senate and had shown no interest in passing an increase, but voters approved a hike to $13.50 per hour by 2020 and paid sick leave by a 15-point margin.

Unlike Washington, which is essentially a Democratic state despite a sizable Republican voter base, Arizona is a red state. Yet voters there approved a minimum-wage hike, to $12 by 2020, as well as paid sick leave and a cost-of-living adjustment, by an even wider margin than Washingtonians in November—nearly 17 points.

As in Maine, organizations representing businesses affected by the law were eager to stop it. But rather than fight the measure, which looked like a surefire winner at the polls, they tried to stop it after the fact in the courts, arguing that the proposition passed in November was unconstitutional because it would cost the state government money. The Arizona Supreme Court unanimously rejected the suit in a March 14 decision.

The battle over the wage increase may be settled—at least for now—but some legislators want to change the process to make it harder to place initiatives on the ballot and easier for the legislature to reverse voters’ decisions. This is a somewhat touchy subject in the Grand Canyon State. Ballot initiatives have been enshrined in Arizona’s constitution since statehood in 1912, and in 1998, voters passed a new constitutional amendment specifically designed to prevent legislative tampering with ballot measures passed by citizens.

There are five measures under consideration now; all of them have passed the state house and gone on to the state senate. Three of them would alter the 1998 “Voter Protection Act.” One would repeal the act altogether. The second would say that if voters overturned a law passed by the legislature, lawmakers could simply pass the law again, which is currently prohibited. Since they alter an existing constitutional amendment, both of these measures would have to be approved by voters in a ballot initiative to become law.

Another bill would require that the initiative language and any related pamphlets state that if passed, a proposition would be subject to the Voter Protection Act and difficult to overturn. The governor could sign this into law.

Other proposals would make it harder to get initiatives onto the ballot. One would change the formula for the number of signatures required for placement. Current law sets a minimum based on the total voter population, but the bill would set minimums in each legislative district. This would require voter approval, but another, which would prevent campaigners from paying workers to gather signatures, could become law with the governor’s signature.

Representative Michelle Ugenti-Rita, a Scottsdale Republican, is behind the first three proposals. She told me that while Proposition 206, the minimum-wage increase, is the hot issue at the moment, she has been trying to reform the process for years.

“This is not taking away the initiative process,” she said. “Half the states don’t have this process. They don’t even give this as an option. We are different in that regard, and we’re proud of that. That’s been something that’s been important to us.”

But Ugenti-Rita thinks that the Voter Protection Act takes an important safety valve and expands it into a massive breach. The 1998 amendment was passed in response to what she concedes was legislative overreach in reaction to a medical-marijuana initiative passed by voters, but said the unintended consequences have become a problem—as with initiatives overall.

“It’s been very difficult to manage our state priorities, budget priorities, when a decent amount of our statutes and our budget are voter-protected, or how I like to call it, legislatively restricted,” she said. “I don’t think that provides for good public policy, and [it] really hurts the voter.”

She said she just wants to bring Arizona’s ballot-initiative process closer more in line with those in most other states, which give legislators a little more leeway.

In Oklahoma, however, voters might be wishing they had some measure of voter protection.The state house passed a bill gutting the voter-approved criminal-justice reform in mid-March, and it’s been sent to the senate. Representative Scott Biggs, the bill’s sponsor, did not respond to a request for comment. (A separate tough-on-crime senate bill was withdrawn in February, and its sponsor has now been forced to resign after being charged with child prostitution.)

Steele said he was cautiously optimistic that the reforms would survive, and said he was sure that if they did, they’d soon come to feel like the new normal. They would also stand as a symbol of unity in a fractious age.

“I love the issue because it does transcend partisan politics,” Steele said. “It seems to be an issue that unites and gives us a chance to remember who we are at our best. When we work together we can solve problems.”

That may be true, but the debates in Oklahoma, Maine, and Arizona are a reminder that Democrat vs. Republican is not the only battle line in politics. Sometimes it’s voters vs. legislators.