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Referendums undemocratically impose the will of a few on the many
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Joseph R. Reisert Kennebec Journal & Morning Sentinel 10/30/2009

On Tuesday, Maine voters will decide seven ballot questions, on diverse issues such as marriage, taxing, spending and borrowing, school district consolidation, and the distribution of marijuana for medical purposes.

What we will not be voting on, but should reconsider, is our attachment to the referendum process itself.

The citizen initiative and referendum process certainly seems very democratic. Democracy means rule by the people, and the referendum certainly puts the people -- private citizens, not legislators -- in charge of the process. It is the people who circulate petitions to place questions on the ballot, and it is the people who decide the questions in the voting booth.

All that is true, but "the people" who drive the referendum process do not necessarily speak for the people of the whole state.

Consider first, that only a relatively small minority of voters needs to sign petitions to get a question on the ballot. (The requirement is 10 percent of the total number of votes cast in the previous election for governor, or about 55,000).

The overwhelming majority of voters may prefer to let the Legislature's decisions stand, but if a strongly motivated minority opposes a measure, its preferences will prevail, and the question will appear on the ballot.

Next, we must ask: who votes on ballot questions?

Virtually everyone 18 years and older is eligible to vote, but even in presidential election years, fewer than three-quarters of potential voters come to the polls (and Maine is one of the highest turnout states in the nation).

Fewer still vote in years with only congressional and legislative elections; even fewer than that vote in off years (such as this year); the fewest of all vote in special elections held in June.

A little math shows that a majority on a given Election Day need not represent anything like a majority in the electorate.

For example, in last November's referendum on the Oxford county casino, nearly 723,000 people voted. In 2007, an off year, the votes cast in the Washington county racino referendum totaled less than 273,000. In that election, it would have been possible to carry the referendum with less than one-quarter of the total number of votes cast in the preceding gubernatorial election.

Is it any surprise that there are more ballot questions in off years than in presidential years?

The great appeal of the referendum process is that it enables groups and individuals who feel disaffected and alienated from the government in Augusta to appeal beyond the Legislature, directly to the people. Indeed, all five of the substantive questions on next week's ballot arise out of frustration with the Legislature in Augusta.

But its appeal to the politically alienated is precisely what is so dangerous about the referendum. Because it is easier to organize a one-time referendum campaign than to assemble a state-wide political coalition to win legislative seats and to govern, the angriest and most motivated voters tend to respond to legislative defeats in Augusta by seeking a referendum on their issue.

Campaigns for the passage of people's veto and citizen's initiatives inevitably stress the disjunction between Augusta and the voters -- it is in their interest to make us feel that the Legislature doesn't represent us.

When referendums fail, their supporters naturally feel disappointment. But even when they succeed, can they bring real or lasting change if the same people remain in power in Augusta? Even when an initiative rebuking the Legislature passes, the Legislature can (and probably will) find a way to work around it, or it can re-enact a measure defeated in a people's veto.

Lasting change requires more than single-issue, single-event political campaigns. It requires the slow, hard work of assembling a political coalition that will continue to support one's agenda over a period of time in the Legislature. All the money and energy now being devoted to referendums would accomplish far more if it were devoted to candidate recruiting and political party-building.

The Progressives, who introduced referendums, envisioned them as an extraordinary tool, to be used only when the ordinary channels of political change were broken, and there were only seven initiatives on the ballot in the first 60 years of its existence, which seems about right.

Of course you should vote on Tuesday, but if you really care about the issues we're deciding then, you should wake up on Wednesday and put your energy into the elections that really matter -- for Legislature and governor.

Joseph R. Reisert is associate professor of American Constitutional Law and chairman of the Department of Government at Colby College in Waterville.

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