Mark Levison, The Levison Group
As president of my home room class in 8th grade, I led the effort resulting in JFK’s victory in my school’s straw poll. I was happy with the results, even though the majority of the junior high school’s students voted for Richard Nixon.
Kennedy and Nixon were very different people with different images. Still, it was a rigorous campaign with emphasis on issues, rather than personal attacks. Things have changed in significant ways. Negativism and nastiness now dominate presidential politics, and most other political races are the same.
In the Kennedy/Nixon years, and for a long time thereafter, voters went to the polls to vote for individuals who would then make and administer our laws until the next election, when others could be elected or re-elected to continue or reverse the course. That was the modus operandi for participatory democracy and the making and execution of laws. It’s not that simple anymore. Today, election ballots are crowded with many issues besides the candidates. Ballots usually include constitutional amendments, referendums, and initiatives. The referendum/initiative process is part of the American democratic system, and it allows the citizens’ voice to be heard in a more direct fashion than indirectly through its elected officials. The theory behind such measures is that they are useful tools to be relied upon when officials are not properly reflecting the beliefs of those who elected them. Additionally, today legislatures often pass ballot measures, effectively handing over political hot potatoes from themselves to us.
More and more, the traditional process seems to have been turned on its head, and these citizen procedures are now most often used by special interests groups to advance their agendas. At first blush that might not seem like a bad idea, since we ought to be sensitive to oppression of minority interests by the majority. Nevertheless, it may not be working out so well. The problem is, many ballot initiatives are championed by very well-funded groups, which are willing to use negative and deceptive advertising, and are more concerned with advancing their agendas than accurately informing the citizenry about the legal issues.
Among the various ballot measures in California are topics like sex slaves, abolishment of the death penalty, mandatory labeling of genetically engineered food, tax increases, tax decreases and on and on. In Alabama, proposed amendments to its Constitution, numbering about a dozen, include removing references to the segregation of schools and making payments to the “Forever Wild Land Trust”. I don’t know what the “Forever Wild Land Trust” is, but my guess is liberals are going to be for it, and conservatives are going to be against it. But then sometimes ballot measures have names that are intentionally deceptive.
In Missouri, changes to its Non-Partisan Court Plan were on the ballot. The Missouri Plan, which has been adopted in various forms by 37 states, avoids the direct election of certain judges and replaces those elections with a form of merit selection. Panels of lawyers, judges and lay persons interview candidates for judicial openings and pass three names on to the governor for final determination. The Plan was adopted in 1940 as a reaction to Boss Pendergast’s machine, which was controlling the judiciary.
Of late, Missouri’s Plan, possibly because it is a symbol for alternatives to direct election of judges, has been under attack by wealthy individuals and interest groups that want to go back to the days of direct election of judges. The current group endorsing these changes is known as Missourians for Better Courts. It sounds like the group is interested in justice, and perhaps they can make that argument, although others would conclude the argument is disingenuous, and that the efforts are being championed by individuals who have lots of money and believe introducing less merit, more money and more politics into the system will give them a better chance of controlling the judiciary. Sometimes ballot measures, masquerading as populous movements, are not what they claim to be.
Some of the bigger issues and more well publicized ballot measures this time around, include gay marriage, legalization of marijuana, voter ID issues and abortion/women’s rights. Some of the less publicized measures include things like prohibiting the use of eminent domain to transfer property to a private use. That’s pretty controversial. In two states, Wyoming and Kentucky, the citizens get to vote to establish the right to hunt and fish. I would have thought they already had that right. Didn’t Davy Crockett live in Kentucky when he used to wrestle bears? In Maryland, constitutional amendments are proposed to require county judges in certain areas to be admitted to practice law in the state. That seems like a decent idea. In Massachusetts an initiative statute would give terminally ill patients the rights to lethal injections. A recent poll showed that measure had two to one support. The late Dr. Kevorkian would have been happy.
Maybe I’m wrong, but it seems like the West Coast: California, Washington and Oregon, have grown cottage industries for citizen votes on policy issues. As examples, in Oregon alone, citizens are voting to legalize state licensed stores to sell marijuana, to authorize privately-owned casinos, to eliminate estate and inheritance taxes, and to ban gill nets in inland waters. I don’t know what gill nets are, but I’m willing to bet that some of the fishermen buying marijuana at the local state outlet end up getting tangled up in them.
It just could be that some of these important issues, like gill nets, ought to be put to statewide votes. On the other hand, I miss the simpler days when I was campaigning for JFK, and the American people looked to their elected legislators to pass the laws.
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Under Analysis is a nationally syndicated column. Mark Levison is a member of the law firm Lashly & Baer. You can reach the Levison Group in care of this paper or by e-mail at comments@levisongroup.com.
© 2012 Under Analysis L.L.C.
