Alex Blaze

DC Board of Elections rejects marriage ballot initiative... a model for America?

Filed By Alex Blaze | November 18, 2009 2:00 PM | comments

Filed in: Marriage Equality, Politics
Tags: ballot initiatives, bisexual, human rights abuses, hyde amendment, illegal immigrants, lesbian, LGBT, pro-choice, pro-life, referendum, rights, transgender, undocumented, Washington, Washington D.C.

HRC's blog reports that there won't be a ballot initiative on marriage in DC:

Today, the D.C. Board of Elections and Ethics announced their ruling [pdf] that for a second time that a proposed ballot measure that would undermine marriage equality in the District is not a proper subject for a referendum or initiative. The Board's decision to prevent a measure like California's Prop 8 or Maine's Question 1 from possibly reaching the ballot is strongly supported by D.C. law, which wisely prohibits any initiative that authorizes discrimination or has the effect of authorizing discrimination under D.C.'s Human Rights Act.

Marriage equality opponents tried for another bite of the apple after losing before the Elections Board and in court this past May. Then, opponents - led by Bishop Harry Jackson Jr. and the National Organization for Marriage (NOM) - sought a referendum that would have undone the D.C. Council's decision to recognize marriages performed in other jurisdictions. The Board, which is charged by law with determining whether a referendum or initiative is eligible for the ballot, unanimously determined that a vote on whether the District should recognize same-sex marriages would improperly authorize discrimination under the Human Rights Act, one of the prescribed subject matter limitations.

It seems like a good safeguard. While there are many issues that people in general are better at deciding because they have fewer conflicts of interest than legislators who are bought and paid for by various industries do, there are some times when it just doesn't make sense to leave certain choices up to majority rule.

Contrary to what some prominent LGBT writers and activists have been saying, we're not the only group of people to have been targeted by a ballot initiative.

California's famous Prop 187 went after undocumented immigrants:

Proposition 187 was introduced by Republican assemblyman Dick Mountjoy of Monrovia as the "Save Our State" initiative.[1] In the general election of November 8, 1994, California voters approved the proposition by a 58.93% margin.[2] It was signed into law by Governor Pete Wilson, a prominent supporter of the proposition, the following day. A number of legal challenges led to the law being eventually overturned in federal court.[3]

Key elements of Proposition 187

Proposition 187 included the following key elements[1]:

  1. All law enforcement agents who suspect that a person who has been arrested is in violation of immigration laws must investigate the detainee's immigration status, and if they find evidence of illegality they must report it to the attorney general of California, and to the federal Immigration and Naturalization Service (INS).

  2. Local governments are prohibited from doing anything to impair the fulfillment of this requirement.

  3. The attorney general must keep records on all such cases and make them available to any other government entity that wishes to inspect them.

  4. No one may receive public benefits until they have proven their legal right to reside in the country.

  5. If government agents suspected anyone applying for benefits of being illegal immigrants, the agents must report their suspicions in writing to the appropriate enforcement authorities.

  6. Emergency medical care is exempted, as required by federal law, but all other medical benefits have the requirements stated above.

  7. Primary and secondary education is explicitly included.

Unconstitutional initiatives that would expressly ban abortion have usually failed, but measures to chip away at women's reproductive freedom, especially poor women's, have passed. Colorado's Amendment 3 was a state-level Hyde Amendment:

Colorado Amendment 3, also known as the Ban on Public Funding of Abortion Act, appeared on the 1984 general election ballot in Colorado, where it passed with 50.4% of the vote. It was the first such measure to appear on a state ballot.

The wording on the ballot said, "Shall there be an amendment to Article V of the Colorado Constitution prohibiting use of public funds by the State of Colorado or any of its agencies or political subdivisions to pay or reimburse, directly or indirectly, any person, agency, or facility for any induced abortion, but permitting the General Assembly, by specific bill, to authorize and appropriate funds for medical services necessary to prevent the death of a pregnant woman or her unborn child if every reasonable effort is made to preserve the life of each?"

Equal opportunity programs have been winning, usually on technicalities, but California's Prop 209 passed:

Proposition 209 (also known as the California Civil Rights Initiative) is a California ballot proposition which, upon approval in November 1996, amended the state constitution to prohibit public institutions from considering race, sex, or ethnicity. It had been supported and funded by the California Civil Rights Initiative Campaign, led by University of California Regent Ward Connerly, and opposed by affirmative action advocates and supporters. Proposition 209 was voted into law on 5 November 1996, with 54 percent of the vote. In the November 2006 election in Michigan, a similar amendment was passed, entitled the Michigan Civil Rights Initiative.

Sure, there are lots of ballot initiatives that help people out, especially ones related to health care and labor. And people seem to be great at rejecting ballot initiatives meant to give tax breaks to the wealthy or hurt public schools.

If there is going to be a ballot initiative process, then there should be safeguards to prevent it from turning into mob rule. There are reasons for groups to take their cases directly to the people, usually when politicians become too corrupt to regulate business or too spineless to raise funds for certain public projects.

But LGBTQ civil rights? The rights of undocumented immigrants to access the limited public services they do now? The right of women to control their own bodies? And programs that provide equal opportunity to minorities by giving them a specific hand-up that the majority might not be entitled to (even though they usually have plenty of hands lifting them up that they can never account for)?

Those are the issues where ballot initiatives are failing. DC's law looks like it strikes a decent balance between competing interests.

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It's a shame that california Attorney General Jerry Brown did not come to the same conclusion and keep Prop 8 from getting off the ground. Had he done this, any court decision would have been after election day, and same-sex marriage would have had at least 2 more years in California to demonstrate to Californians that it was not the end of the world.

Jens Palsgaard | November 18, 2009 2:36 PM

This is very good news indeed.

The exception proves the rule - Democrat and Republican bigots and those who cater to bigots make most of the policies regarding same sex marriage.

If they support same sex marriage in the real world they risk losing the bigot vote. Thus "gawd's in the mix."

Beginning with Obama and including Biden, the Clintons and most of Congress.

I'm of two minds on this. I think I want to see how the conversation unfolds below before I chime in...

Jeremy Hooper at Good As You has also pointed out that women's suffrage was put to state-wide votes, and lost in Maine, before the 19th Amendment passed.

Maine.September, 1917

Bose, that's true but I know that women's suffrage also had some victories at the statewide ballot box as well. I think Utah and Colorado were 2 of the states.

Overall, I think the ballot initiative process is a necessary evil, I simply thing the standards should be higher for getting some things on the ballot for citizens to vote on.

California's system is ridiculous and has wrought all sorts of havoc in that state (not just SSM, of course). I actually do like Iowa's process.

Also, to amend a state constitution, the bar should be very, very high, like, say, 2/3 of a state house, state Senate, and 2/3 of "the people."