Legislating at the Ballot Box

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Of the ten propositions on November’s general election ballot, nine were referred by the state legislature (two of which seek to repeal past voter-approved measures). Join us as we examine how Arizona’s initiative and referendum processes are being used by voters and lawmakers, and whether or not they’re being used appropriately. Arizona Republic editorial columnist Bob Robb and ASU law professor Paul Bender share their insights and expertise.

Ted Simons: The 10 propositions November ballot, only one is a voter initiative. The others were referred by state lawmakers. Tonight we'll take a look at the process for placing a measure on the ballot and whether or not it's being used as originally intended.a brief look at initiative and referendum powers.

David Majure: In Arizona, legislators aren't the only ones who can pass laws. The state constitution gives lawmaking ability to the people, through the power of initiative and referendum. Signatures from 10% of qualified voters are enough to send a initiative to the ballot. It takes 15% for a constitutional amendment and 5% of voters can refer most new laws to the ballot before they go into effect. At the end of a legislative section, voters have 90 days to exercise this power of referendum. In the past, the legislature could easily change or repeal any voter-approved laws. That changed in 1998 with the passage of prop 105, known as the voter protection act. Now lawmakers cannot appeal voter-approved measures. They can amend them but only if the amendment furthers the purpose of the measure and only if three-fourths of legislature votes to do so.

Ted Simons: Is the initiative and referendum process being misused? Here to share their views are ASU law professor Paul Bender and Bob Robb, an editorial columnist for the "The Arizona Republic." Thanks for joining us.

Bob Robb: Good to be here.

Ted Simons: All but one prop referred by the legislature, is that unusual?

Paul Bender: I think it's unusual. Bob would know better than I do whether this has happened before. But it's very unusual and it really strikes you as not what the constitution had in mind. Let me read you the provision that's involved. It says that the legislative authority of the state shall be vested in the legislature consisting of the senate and House of Representatives but the people reserve the power to propose laws and amendments to the constitution and enact or reject such laws at the polls independently of the legislature. And also reserve for their own option, the power to approve or oppose -- apart -- what you have is something meant to be used by the people, primarily and when you look at the ballot and see nine tenth is on there because the legislature put it on there, I don't think that's the way it was intended.

Ted Simons: What do you think? The provisions he just read off -- Do you think those are --

Bob Robb: There's another provision of the legislative authority in the constitution that says nothing in the section shall be construed to limit the power of the legislature to refer any measure. So certainly, the legislature was intended to have the referendum authority. This is unusual. In 2008, there were six citizen measures on the ballot. Only one from the legislature. You go back to 2006 when we had the mother of all ballot propositions ballots, there were 10 citizen initiated measures, eight from the legislature. The problem is that to amend the Arizona constitution and many of these are constitutional amendments, require a vote of the people. So if the legislature decided it believes the constitution needs to be amended for any particular reason, that's their only option. Then the voter protection act which was referenced in the package, has taken ordinary statutes and given them that same status as a constitutional process vision. Because as a practical matter, they cannot be amended by the legislature without approval of the voters. So there's nothing that is on the ballot that the legislature would have had the authority to enact on its own initiative. This is the only way they can be accomplished.

Paul Bender: The constitutional amendments, what is it -- six or seven on the ballot.

Bob Robb: There's seven.

Paul Bender: And two referendums and one initiative, the legislature could have enacted those as statutes. The constitutional amendments, they don't have to put them on the ballot as constitutional amendments. Let's take the healthcare one, for example. The legislature could have made that an statute and enacted it.

Bob Robb: But the purpose of the people who want that proposition, is to preclude -- they wanted to give the right to purchase your own healthcare and not to be mandated by the government to do anything, in the declaration of rights in the constitution precisely so future legislatures or the people by statutory initiative couldn't change it. One could argue whether any of these things -- hunting and fishing, I'm not sure deserves constitutional protection, but those proposing it want it precisely to give it a protection against legislative or statutory initiatives.

Paul Bender: And it's interesting, because when the legislature does that and lets the people decide whether to have the hunting and fishing things, they're stopping themselves from changing it whereas, they've been complaining that the people passed a initiative and it stops us from changing it and here they put seven things on the ballot that stop themselves. Why are they doing it? That strikes me as not doing their job correctly.

Bob Robb: This is one of the things that's different from this -- about this set of propositions, most of these have well-organized and well-financed interest groups behind them. And in other years would have gone to the streets and qualified these measures by initiative. That -- that's true of the healthcare referendum which at one point in time was on the ballot in the previous years.

Paul Bender: And lost, right?

Bob Robb: Yes. And racial preferences, the hunting and fishing one is backed by the NRA. Plenty of money and the union ballot.

Paul Bender: Why did they do it?

Bob Robb: If the legislature agrees with the interest group, the interest groups saves $250,000, by not having to pay petition circulators.

Ted Simons: Are you see -- are we seeing more of this though. Obviously, this is something unusual. Where almost everything seems like it's going to be up or down as far as the constitutional amendment with constitutional protections involved?

Bob Robb: I think that's been a trend for some time. Both sides -- except with the voter protection act you don't have to amend the constitution to get the protection of being a constitutional amendment.

Paul Bender: And the high point -- or low point, if you like -- of things going into the constitution that in no on the other hand world would be. We have -- ordinary world, we have a sales tax, they put it on the ballot, there's a couple of fundamental problems here. I think, and the main one is that it's too easy to amend the Arizona constitution and that's why we have a constitution that's so long and complicated and fairly often we put things on there without thinking about them. Bob and I have a complete difference of opinion with regard to the lieutenant governor, one of the petitions. When you do that through constitutional amendment, it's not as flexible or intelligent as when you do it by legislation. Legislation, you can amend on the floor and debate. When you put a constitutional amendment or initiative on the ballot, no one can amend it and we have, for example, we have a disagreement about something, in the legislature, it could be cleared up.

Ted Simons: Is that a failure of the legislature in terms of doing its job?

Bob Robb: I don't think so. Because again, nothing which is on the ballot that was referred by the legislature could the legislature have done on its own initiative. If you're going to provide constitutional protection to some of these rights, regardless of whether one thinks it's good or bad idea, that's the way do it. The legislature couldn't redirect funding from the land conservation fund or first things first on its own initiative because they're voter-protected.

Paul Bender: But the legislature could do it as a statute. Not a constitutional amendment and what I'm suggesting is we ought to, if we're going to revise these provisions, and they probably need some provision because they really don't work very well, the voter protection act is too wooden and the tax things. It stops the legislature from do dealing with a crisis, it ought to be compared with the federal constitution, in order to amend the federal constitution, you have to get both houses of legislature and more than a simple majority and then three-quarters of the state legislatures to do it and as a result, we have 27 amendments and we have a federal constitution that's remained stable and is a source of fundamental things. Our constitution has a lot of things that nobody would think is fundamental. And I would suggest -- and this is a serious suggestion -- there ought to be two ways to get a constitutional amendment passed. If you need to do it right away without discussion or debate, you ought to need some supermajority. Two-thirds, 60%, more than a simple majority. So if you put in on the ballet and it gets, say it gets two-thirds, then it becomes -- if you don't do that, it should be passed twice. Take hunting and fishing, do we need to do that right away? I don't think so.

Ted Simons: What do you think of those ideas?

Bob Robb: I agree with Paul that our state constitution is a junkyard. However, it's been a junkyard.

Paul Bender: I didn't use those words. [Laughter]

Bob Robb: You can blame me for that. The constitutional law professor did not call the constitution a junkyard. But the founders didn't trust the executive or legislative branch authority so you would be in essence starting from scratch to pare that down to true declarations of fundamental rights and fundamental methodology of what government is to do.

Paul Bender: I don't think you can pare it down like that. You have to do it amendment by amendment. But since this seems to be snowballing, some brakes ought to be put on this. The lieutenant governor thing, for example, there are a lot of ins and outs and pluses and minuses. We lived with no lieutenant governor for 100 years. We can do it for another two years. Put it on the ballot and see if a majority of people like it. If they do, put it on the ballot two years from now and in between, talk about it and think about whether it's a good idea and maybe you want to change it to make it better. Now you've made it something that everybody agrees with, it will pass by two-thirds vote and go into effect right away.

Ted Simons: A couple of hurdles, not a bad thing?

Bob Robb: You're freezing what I think is a junkyard of a constitution in place. Because virtually nothing gets two-thirds approval by the electorate. If you were to say, does the sun rise in the east and set in the west, depending on who made that assertion, my guess is 40% of the electorate would disagree.

Paul Bender: Suppose I made it 60%? [Laughter] My point, you can do it if you do it twice. 60% of 6 to do is right away. It ought to take a couple of years so that people can discuss what's going on in our fundamental documents.

Ted Simons: Can changes be made? What do you think?

Bob Robb: I agree with Paul's assessment that the state constitution is -- covers a lot of things that should not be in the constitution and I agree there's an increasing tendency to seek constitutional status for things better left in statute. There are some states that you have to pass the constitutional amendment twice. I just think given what a direct democracy laboratory and pioneer Arizonans think themselves of, that amendment, which would have to be an amendment to the state constitution - wouldn't pass once, much less twice.

Paul Bender: That would be passed by a simple majority, ironically. I think the concept of this at the beginning was real direct democracy. And it's written in there, the language I read. But we've outgrown that in a way. I would like to retain that, but do it in a way that's more responsible and do the people understand them, they pass them and say, oh, my god, what did we do? When Evan was elected governor by a minority, they immediately passed a constitutional amendment that said you can't do that anymore you got to by majority -- was it the next gubernatorial election, it was a tie between Goddard and Symington and we had to have a run adjust election. You react too quickly. Take your time and if they're fundamental enough to be in the constitution, think about them for a while.

Ted Simons: Last word on this. If not changing, do you see what's happening right now, an abuse of the process?

Bob Robb: I believe there's one item on the ballot, the secret elections for unionization, that is an abuse of the ballot process, because it's a meaningless gesture. Federal law will preempt it. Ordinarily not but it's true that over the course of time what was intended to be a reserve power for the people have become a tool of the legislature and organized interest groups and doesn't serve the purpose it was intended and if we wanted to serve that purpose, we need to look at reforms.

Ted Simons: Great discussion, thanks for joining us, we appreciate it.

Bob Robb:Arizona Republic;Paul Bender:ASU Law Professor;

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