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Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Weekly Comment

The Risks of Wedge Citizen Initiatives

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July 11, 2006

I wrote earlier on this site about the growing use of "wedge" citizen initiatives by political parties in the United States. Political parties are attempting to put on state ballots initiatives that energize their voting base. The strategy is most effect in non-presidential race years.

I also noted that the strategy is risky. Here is the story of one that backfired.

In Ohio a conservative candidate for the governor's office and the current Secretary of State, Kenneth Blackwell, ran against a moderate and the current State Attorney General, Jim Petro. Blackwell, as part of his campaign, organized a citizen initiative for constitutional limits on state and local government taxing and spending. It is known as the Tax and Expenditure Limitation (or TEL for short).

On the eve of the primary, which Blackwell won by 14 percent of the vote, Blackwell supporters presented formally the initiative to the Secretary of State, Blackwell, with enough signatures to put the proposition on the ballet. The Secretary of State's office implemented the administrative procedures necessary to certify the number of signatures and put the language on the ballot for the next election.

After the primary victory, opposition to TEL formed immediately from numerous interest groups across the state. State universities to local firefighters argued that TEL would have an undue and unintended burden on their operations. Democrats argued that TEL was poorly drafted and would lock-up the state's finances. They were right.

Drafters of the TEL amendment, a very complex package of rules, had overlooked a basic ambiguity in the description of the voting majority needed to limit taxing and spending limits. Was a "majority of electors" a majority of those registered (entitled?) to vote or a majority of those actually voting? The former standard would require vote totals of one-hundred percent of those voting if only fifty percent of registered voter went to the polls. The drafters were also careless and over-inclusive in the definition of government units that would fall under the limits.

Both drafting problems could be easily fixed by language changes but, and this is the risk, the language of the initiative was locked in cement once the signatures were gathered. Amendments were not possible; the errors could not be fixed.

The Republicans now had a real problem on their hands. Blackwell had to support TEL in the governor's race against a popular Democratic candidate and TEL was galvanizing the opposition. Universities and firefighters are respected in this state.

Republicans, in control of both house of the state legislature, crafted a clever retreat. The legislature would pass a watered down version of TEL, correcting its errors, and the proponents of the citizen initiatives would withdraw TEL. Blackwell would claim credit for the new legislation.

There is one problem. The proponents, who had submitted their petitions to the Secretary of State, had no express power to withdraw the initiative. The legislature's solution was an amendment to the statute implementing the constitutional initiative right. The legislature passed language that enables a majority of the members of a committee nominated to represent the signatories of an initiative petition to withdraw a petition anytime before the Secretary of State "certifies" the language to local election boards, sixty days before the date of election.

At issue is whether the new statute, particularly as applied retroactively to a pending initiative petition, is constitutional. What are the constitutional rights of signatories who signed the petition with the understanding that, once presented to the Secretary of State with the requisite number of valid signatures, the initiative language would appear on the ballot? Does the legislative act unduly infringe on the constitutional initiative procedure? Were I on the bench, I would hold that it does.

There is also the political opening for the Democrats. Blackwell had argued the need for a constitutional amendment, binding the legislature, and yet now appeared content with a statute that the legislature could itself repeal later. Was his victory a disguised retreat?

In any event, TEL demonstrates the risks of using the wedge initiative. A political candidate drafts the initiative language when a primary victory is sought and with enthusiasm for appealing to the extreme elements of the party and then must run on the initiative in the general election when he/she must appeal to moderates for an election victory.

The initiative language is inflexible and a candidate cannot "soften the message" for the general election.