Wednesday, September 07, 2005
In a post at The Right Coast, Mike Rappaport has argued that the California Legislature's actions in passing a same-sex marriage bill are "anti-democratic." He writes:
It is amazing how anti-democratic the movement for same sex marriage is. In various states, including Massachusetts, the measure only had a chance of being implemented by the courts, against the will of the legislature. Now, in California, the legislature has finally passed a same sex marriage bill, which the Governor has not yet decided whether to sign. But this apparently democratic decision violates a ballot measure that Californians voted for "overwhelmingly in 2000 that defined marriage as between a man and a woman." Clearly, same sex marriage is a measure that is supported by elites, but not by the common person. Over time, though, one would expect that the views of the elites to spread.
A few points. First of all, five years have passed since Californians voted on Proposition 22, with 61% of voters approving the measure during a primary election in March. There is nothing anti-democratic about a society changing its mind after five years of thinking about a subject. Indeed, one of democracy's great virtues is that we get to change our minds as often as we like (within constitutional parameters, of course). More, since the measure made its way through both houses, Rappaport might concede that a form of supermajoritarianism has been achieved through the legislature (which cannot be said in earnest on behalf of the 61% majority voting in favor of Prop 22 at a primary election (where turnout is lower than November elections)). Second, Prop 22 was exactly 14 words long: "Only marriage between a man and a woman is valid or recognized in California." Notice how the ballot measure is phrased: it sounds like a statement of fact more than a proposal for a new law. Who knows whether people thought they were being tested about the current state of the law or whether people understood the nature of their vote. In any case, the democratic process in California allows legislatures to override measures of direct democracy: the "people" could have constitutionalized their decision and in failing to do so facilitated a legislative change. There's nothing "anti-democratic" about that unless you believe that mechanisms of direct democracy are flawless and can function without other branches of government providing checks and balances.
Final point: California's Constitution (Art II, Section 10 (c)) contemplates that the legislature can "amend or repeal referendum statutes . . . by another statute that becomes effective only when approved by the electors."
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“Notice how the ballot measure is phrased: it sounds like a statement of fact more than a proposal for a new law. Who knows whether people thought they were being tested about the current state of the law or whether people understood the nature of their vote.”
Exactly. And people who voted for Bush just thought they were being tested about the name of the then-current president. That’s because California propositions routinely test people on math, medieval history, and baseball statistics.
Posted by: Kate Litvak | Sep 7, 2005 5:16:23 PM
Kate: You are so sweet sometimes. And naive. Decades of empirical evidence have shown that voters in referenda and initiatives routinely cannot figure out what they are voting on or how to translate their preferences (if they have one) into an effective vote. I know it seems unlikely, but people aren't all as clever you are.
In any case, there were many legs to my argument; even if one falls, the argument is far from toppled.
Posted by: Ethan Leib | Sep 7, 2005 5:52:17 PM
Totally agree. Not only do people believe that popular referenda exist to test their knowledge of current law, but Kaplan now has a prep course for those who want to increase their referenda scores. The clientele is predominantly Republican.
Posted by: Kate Litvak | Sep 7, 2005 6:28:55 PM
Umm, I'll take another leg. Is the California statute a ballot proposal (a "statute that becomes effective only when approved by the electors") or just a run-of-the-mill statute? I had thought it was the latter.
As I understand the conlaw listserv discussion, which I am relying on for most of my information here, the defenders of the statute are arguing not that it is a permissible ballot initiative but that proposition 22 applied only to out-of-state marriages.
So, then the other legs other topple. If Prop 22 bans gay marriage, and if this statute fails to be of the constitutional form required to repeal prop 22, then the new measure is invalid because it is not by the same "we" who enacted the first one, i.e. the people rather than the state.
So far as the point about the "primary election in March", I seem to have missed the autumnal provision of the California constitution that suggests that the validity of a democratically-enacted measure is affected by the month it was enacted.
Posted by: Will Baude | Sep 7, 2005 9:47:17 PM
I'm not sure what "the Legislature" or the members of the Con Law listserv are thinking--but the Legislature can send the law for elector approval if AS signs it to have it repeal or amend Prop 22. As the Constitution is drawn, the Legislature need not specify whether it is sending a law out for approval: it is merely a precondition for making the law effective. If the Legislature chooses not to send it for elector approval and offers a reason for not doing so, we can evaluate then whether that reason is "anti-democratic."
In any event, even if the Legislature doesn't send the new law out for approval, there is a fair and open question about what effect the new law has: perhaps there is some way, through statutory interpretation, to cabin the application of the new law or the application of Prop 22 to render them both effective. In the event that it turns out that the new law is invalid or that AS vetos it, nothing "anti-democratic" has happened. That, at least, you must concede. Moreover, if California's highest courts declare Prop 22 unconstitutional, the law would become effective since it is not repealing or amending anything.
I believe my argument stands that there is nothing especially "anti-democratic" about the California Legislature's actions . . . yet.
Finally, Will, my point about the March primary is not unlike those who emphasize that Prop 22 "overwhelmingly" met the approval of the voters. It seems relevant even though it has no important legal effect: if 50.001% of the voters passed Prop 22, it would have the same status as if 61% passed it. If you think, however, that it is relevant that Prop 22 managed to get more than a slim majority, it is equally fair to point out that elections that are not on Election Day tend to have a smaller turnout (and an unrepresentative one).
Posted by: Ethan Leib | Sep 8, 2005 12:16:23 AM
Isn't direct democracy more democratic than representative democracy? Here, California voters directly voted to deny gay people the right to marry. That seems a more accurate statement about what the participants in a democratic system believe than what their legislature says. After all, people vote for their representative even when not agreeing with everything the rep. does. E.g., I might not like my local representative's views on morals-based legislation (there should be no such thing), but if he votes the right way on issues I care about (re: taxes), then I will continue to vote for him.
But with direct democracy, the voters impose their will issue-by-issue. That seems more democratic than a system where the voter has to choose a representatives. After all, how many fiscal conservatives said, "I hate to vote for Bush, who increased federal spending more than any present since Johnson, but Kerry would be worse."
Thus, it does seem anti-democratice for representatives to overrule legislation enacted directly by the voters.
Posted by: Mike | Sep 8, 2005 12:36:59 AM
Mike: decades of empirical evidence show that California voters didn’t actually mean to deny gay people the right to marry. People who voted “yes” on Prop 22 thought they were taking a DMV driving test.
Posted by: Kate Litvak | Sep 8, 2005 2:02:19 AM
"Who knows whether people thought they were being tested about the current state of the law or whether people understood the nature of their vote."
If I had all day to come up with a parody of the elitist point of few that people who don't agree with the "correct" point of few likely don't do so because they are just too dumb to understand the issue: I couldn't top Ethan's fantastically condescending explanation.
I mean Ethan is really on to something there. Judging by the fact that they reached the "wrong" conclusion, can we be sure that CA voters can even read? Maybe they thought they were in a movie and not actually voting on a ballot referendum. The possibilities are endless.
Posted by: MJ | Sep 8, 2005 1:03:17 PM
MJ: Please read my book and then let me know whether you think I am an elitist. It is--I assure you--a completely absurd charge. I am highighlighting for you facts that academics have shown with great robustness. As you will see when you read beyond my blog to more careful articulation of my views, direct democracy is close to my heart--and I do see potential within it to achieve real popular sovereignty. Alas, we don't live in that possible world yet.
Posted by: Ethan Leib | Sep 8, 2005 1:33:00 PM
1. I'm not calling you an elitist, I'm saying your statement is an elitist statement, or at least one impugned with elitist sentiment..
2. Because there is evidence that voters have been confused by ballots and or ballot issues does not mean that CA voters were confused by this ballot issue. Any evidence that they were?
3. Thought they were being tested on the current state of the law? Utterly absurd. You either said something silly or you honestly believe that the people of CA are idiots.
I'm not attacking your career's work. I'm saying that statement was either ridiculous or indicates that you think the voters of CA are booger-eating morons. At best, it's the former.
Posted by: MJ | Sep 8, 2005 3:27:59 PM
There does seem to be a serious question about what Prop 22 really means and how it might or might not be rendered consistent with the new law. Still, I'll be happy to acknowledge that the idea that California voters thought they were being tested rather than expressing their preferences is unlikely. But do try to remember that most of us don't want rule by Gallup Poll--and that is not because we think people are idiots or booger-eating morons but because we don't especially trust the procedures used to garner "public opinion." If we want popular sovereignty--and I think we agree that we do--we need to find a good way to test the views of the population. Direct democracy is not that way yet.
Posted by: Ethan Leib | Sep 8, 2005 3:45:57 PM
Ethan, I actually tried to glance at your book the weekend before last... you'll be shocked to learn that it's missing in the Library of Congress, as in their ever-industrious stack gnomes couldn't find it.
But it would take some really robust empirical evidence to convince me that it is even minimally concievable that voters "thought they were being tested about the current state of the law." This is another one of those "oh, c'mon" moments for me. Voting is an act with a specific cultural content to it: decision-making. The act of casting a ballot seems to me to be firmly coded with the intense propaganda about democratic decisionmaking and freedom and "consent of the governed" and all that rot that people in this society are subjected to from elementary school onward, and it strikes me as wildly implausible that all that propaganda, which is so effective at getting people to believe that they have the government they have chosen, is ineffective at making them understand that when they actually take the act upon which all the propaganda is focused, they aren't engaging in an effective speech act designed to create change in the world.
Moreover, it is hard to understand why people would suffer the cost of standing in line, missing work, etc. to vote if they didn't hold the belief that their vote would be effective in the world as more than just a quiz.
Also, those who participate in primaries (as you noted) would seem more likely to know what they're doing by voting, not less so. After all, primaries are less heavily advertised, one has to be more motivated to participate in them, and that motivation presumably comes from and/or generates more learning about the process. (I hope there's empirical evidence on this somewhere -- anyone?)
Finally, ballot measures usually show up in one's mailbox a few weeks before voting time, along with semi-neutral (sometimes) explanations and arguments for and against from anyone who feels like paying to have their argument included. At least, that's what I remember happening from the last state with an initiative process in which I voted (Oregon), and I vaguely recall California being similar.
All those things seem to weigh very heavily the idea that people could think "they were being tested about the current state of the law." I'm not ruling out the possibility of empirical evidence that people could vote without knowing they were voting -- that would be incredibly stupid of me, wouldn't it. But a little preemptive skepticism is certainly in order... so god help me, I agree with Kate and MJ on something...
Bah, is the evidence for voters-not-realizing-they-are-being-asked-to-make-decisions actually cited in your book? If so, I'll actually buy it, this I'm curious about...
Posted by: Paul Gowder | Sep 8, 2005 3:50:28 PM
For what it is worth, I cannot think of why it should be relevant whether an initiative is passed by 50.1% or 99.8% of the electorate.
I am still confused about the mechanics of the initiative process in California, I suppose. If the legislature passes a measure that they assert does not need to be sent out to the voters and it is signed by the governor, what's the procedure for then putting it on the ballot?
Posted by: Will Baude | Sep 8, 2005 4:57:22 PM
It's not elitist to acknowledge that voters (like all people) can make mistakes, including the mistake of misperceiving the meaning and importance of ballot initiatives--even widely publicized ones.
For example, the sponsors of Prop. 209 in California deliberately crafted and titled it so as not to alert voters to its aim. Although the amendment would prohibit the practice of affirmative action in California state institutions, the sponsors were savvy enough not to use the phrase "affirmative action" and to call the amendment the "California Civil Rights Initiative."
Instead, the amendment made it unlawful for the state to "discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." (If you don't believe this sleight of hand was intentional and ultimatley crucial to the success of Prop. 209, read Lydia Chavez's book explaining the strategy.) Now, lawyers familiar with the affirmative action battle will immediately understand the import of those words. But not all voters will. Is it really more elitist to point out that the public has been hoodwinked than to hoodwink the public?
Prop. 209 eventually passed with 54% of the vote. That included about a quarter of the black and Latino vote(!). I don't know if the exit polls explored the issue, but I doubt that all the minority voters supporting this particular "Civil Rights Initiative" wanted to ban affirmative action.
So, to answer Will Baude's point, it *does* matter under what circumstances a ballot initiative was passed. Shouldn't we be sceptical of the democratic legitimacy of a ballot measure that squeaks through with, say, 51% of the vote if it's likely that some significant portion of the electorate would have opposed it if they fully understood its implications?
Posted by: snowball | Sep 8, 2005 11:59:37 PM