As we all know by now, Prop 8 passed in California. This could be considered the one real defeat that liberals suffered on election day. The voters of California, in a direct vote on the issue, by a bare majority amended the California Constitution to eliminate the state constitutional right to same-sex marriage. As Ruchira and Anna discuss in the comments of Andrew’s post, Connecticut refused to amend its constitution in a similar (substantive) fashion after its supreme court issued a similar ruling: that gay people are entitled to equal rights, including the right to marry a person of their choosing.
One important difference, which I don’t think has been discussed in the press (or on the blogs) nearly as much as it should be, is the structural political difference between California and Connecticut. The question on the ballot in Connecticut was, Should we have a constitutional convention to amend the state constitution? The question on the ballot in California was, Should we eliminate the right to same-sex marriage? Arguably, only California offers direct democracy with respect to constitutional issues in any meaningful way. Moreover, it does so by a simple majority–51 percent of the voters can directly take away a constitutional right.
The problem is that voters, as a rule, don’t have sufficient information to accurately express their preferences on the specific legal consequences of the ballot–at most, they have broad ideas of their policy preferences and very general thoughts on the subject-matter of the proposed ballot measure. For example, anecdotal evidence suggests that a fair number of California voters thought that voting No on Prop 8 would have required teaching young schoolchildren about gay marriage. I actually don’t even know if this is true–I don’t know what would have been taught in the schools, although I certainly don’t recall learning about family organizational structures when I was little–but I think it’s safe to say that if I don’t know, neither did a fair number of these voters, who largely rely on information shortcuts to establish voting preferences (which work much worse in direct democracy than representative democracy). Similarly, the exact extent of associated civil rights removed beyond the label "marriage" was surely unclear to a significant number of voters.
Maybe instead of just talking about what this means with respect to social attitudes about LGBT issues, people should start talking about what it means with respect to California’s broken political system.
Accidental Blogger 
2 responses to “Direct Democracy and Prop 8 (Joe)”
I think I agree. On a basic level, one of the purposes of a constitution is to protect the liberties and entitlements of minorities, in the face of majoritarian rule. I don’t understand the rationale for allowing a simple majority of citizens (not even elected representatives, who are at least a bit more likely to engage in some kind of meaningful deliberative process, however flawed or tainted) to add or remove constitutional liberties or entitlements. I have not made up my mind about the ballot initiative process in general, but at the least, I have yet to grasp a good reason to use it to allow a simple majority of the electorate (much of which as you point out is laboring under basic informational deficits) to determine the contents of the constitution.
LikeLike
I am a Californian, campaigned and voted against Prop 8, and am no fan of the ballot initiative process. That said, I continue to think of Prop 13 , not Prop 8, as its most illustratively pernicious result.
For one thing, it’s not clear that a simple majority of voters can “amend” the state constitution to eliminate a fundamental right. That such an elimination is in fact a “revision,” requiring approval by a 2/3 majority in both houses of our bicameral state legislature before submission to a vote or convention, is the contention that underlies the lawsuits filed on November 5, 2008. Here’s the relevant section of the state constitution. The best source for the constitutional argument in opposition to Prop 8 is the memo of points and authorities, starting at p. 21 of 64 in this document, in support of the writ filed by the folks working on that suit.
Opponents, of course, unsuccessfully challenged Prop 13, as well. The difference is the interests that the propositions, having passed, create. If the underlying motivation for Prop 8 is, as Joe suggests, ignorance, and if it’s upheld by the courts, a ballot initiative not too far down the line, following further education and further cultural inroads, will restore the rights that it has taken away. As disappointed as I am, I hold out significant hope for that result.
Prop 13, and similar financial measures, on the other hand, create incredibly invested constituencies that make it nearly impossible to reverse the damage done through the legislative process. The problem there is not that the mechanism allows ignorance, but rather a tragedy of the commons.
That said, I’m as guilty as anyone else when it comes to abusing the populism of the initiative process. While hesitating because of my dislike, for complicated policy reasons (decentralized and disorganized financing and administration of services, among them), of the initiative process, I supported Prop 63 in 2003, which levied a 1% tax on people with incomes over a million dollars to add much needed funds for community mental health services.
Like Bismarck said, laws and sausages, etc.
LikeLike