Thursday, April 12, 2007

Don't Vote To Limit Civil Rights

Flashing lights and Klaxons should go off when the shameless liars say, "Agree with me or you're unAmerican." Of course, that goes for the current White House's big lies on Iraq. Locally, our version has to do with ballot initiatives.

Here, we have been strongly against such abuses of ballot initiatives in this state and elsewhere. Over at his main blog and a column in IN Newsweekly, Ryan Adams called for the long overdue refinement of the amendment machine as well.

We have been bullied, harassed, tricked and robbed of our money and time that should go to worthwhile pursuits by those liars. Those lying in wait for citizens include VoteonMarriage, Ray Flynn, Catholic Citizenship, and even Cardinal O'Malley. They openly say that unless their evil hearted, fraud-ridden amendment to stop same-sex marriage here goes to a general election, voters have lost their democratic rights.

Emergency Brake

That's doo-doo many levels deep, and the core of the argument, as well as the way to solve it lie in our state constitution's Amendment XLVIII.

This amendment sometimes has a mythic quality. You hear that it came from our colonial times, that Massachusetts had this first, that the original authors of our state constitution inserted this, and blah blah. Reality is that shortly after the United States came into existence, a former colony did have a rudimentary form of initiatives, but that was Georgia. Then in the opening of the 20th Century, Oregon instituted a full-fledged version, which we and other states eventually adopted in similar form. Ours came toward the end of the Progressive Era in 1918.

Some confusion comes from the our Article XIX, which includes, "The people have a request of the legislative body, by the way of addresses, petitions, or remonstrances, redress of the wrongs done them, and of the grievances they suffer." That's quite different, but we could argue that it presaged initiatives.

Today 24 states and D.C. have a form of ballot initiative for either bills or constitutional amendments or both. We have both.

Mutant Process

The original idea is pretty sound. Among the thousands of bills a legislature passes, a crazy one will slip into law every so often. The ballot initiative is there as a safety valve. Rather than having to defeat enough legislators in some future election, citizens can petition for the right to overturn the bad law.

Unfortunately, in many states, narrowly focused business or political groups have learned how to game the system. For example, California is famous for unfunded mandates; a group will pass new requirements, but provide no funding. Here, we are more prone to attempting to write religion into civil law.

In the current case here, we had another safeguard failure. Our XLVIII forbids initiatives that seek to overturn court decisions. While a rational person would certainly have agreed that the amendment to stop same-sex marriages here is clearly an effort to reverse the Goodridge decision, our then AG Tom Reilly took a very liberal interpretation on that and then split hairs, agreeing with the amendment proponents that it wasn't completely doing that, rather that would just be a side-effect. Unfortunately too, when the Supreme Judicial Court was asked whether Reilly had the power to do that, those guy-shy justices were still smarting from Goodridge criticism, and they said he could. That was gutless, but this was an unusual case in which both safeguards of the initiative process failed.

Overdue Improvements

Over at Bay Windows, Chris Orchard has a very complete recap of current legislation before the Joint Judiciary Committee that would fix many of the abuses of this process. It wouldn't do anything with the current anti-marriage-equality amendment, but could save a lot of trouble, time and money going forward.

Up for discussion are:
  • Senate Bill 26. This would forbid initiative or ballot petitions on civil rights and matters of equal protection.
  • House Bill 1772. This would flrbid initiative petitions "limiting or abridging civil rights."
  • House Bill 1727. This would require that a simple majority of a Constitutional Convention be required to advance an amendment to the constitution. Presently this takes only one-fourth of the combined members.
The latter, 1727, may be a bit of a harder sell. With the original intent of this process to be a check on the legislature, the idea was that one fourth (at present 50 of 200 members) of the General Court should be able to put a question on the ballot for all voters. Behind that is the concept that if a simple majority of both houses passed a law, it might be difficult or impossible to get them to reverse themselves by letting the public vote directly instead of by representative democracy.

Here, the important distinction for 1727 is that the basic idea may be fine for overturning a law. However, an amendment has more impact and staying power. There is a strong argument that this should require a higher level of support and consideration.

Letting the majority vote to limit other people's civil rights should be right off the table. Apparently the authors of XLVIII thought they had made it strict enough, hard enough, and closely enough defined to prevent such shenanigans. Of course in 1918, they did not anticipate many many women's issues, racial developments, or gay rights.

Who knows yet whether the Senate and House have the courage to refine this process to take out the worst abuses. They are up against the undercurrent of voters who love the idea that they can turn any issue into a town-meeting-style vote.

The dreadful abuses we have seen on both coasts in particular demand improvements. We don't even have to scratch the initiative options. However, we have seen the extent that the basest of our interest groups are willing to misuse our democracy, sometimes for hateful ends. It's long past time to bring this nearly century old process up to date.

Of course, even if we revise XLVIII to forbid voting to limit civil rights, we cannot be positive that some other addle-pated or amoral AG or SJC won't ignore their duties. Yet such simple refinements are a necessary improvement.

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