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.”
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