Allen (D-Ward 6) agreed with the crowd that Initiative 77 is bad policy. But the idea of overturning the will of the voters gives him pause.
“I don’t rush headlong into saying, ‘Voters just voted, now let’s overturn it,’ ” Allen said at the gathering this month. “I want to respect the fact that there was a ballot initiative. There was an outcome.”
A majority of the D.C. Council — seven of 13 members — shows no such hesitation and has backed a bill to nullify Initiative 77. A public hearing has been scheduled for Sept. 17.
If the voters’ decision is reversed, the D.C. Council would join a growing number of legislative bodies nationwide that have moved to overrule their constituents’ decisions at the ballot box.
In 26 states and the District, the public can bypass elected officials and create laws on their own simply by voting on a single question. Proponents say the process is democracy at its purest and best; skeptics say ballot measures are often sloppily written and can have unintended consequences.
In any case, they are growing more common; 2016 saw just over 1,000 initiatives filed and 76 placed on ballots around the country, decade-high numbers. Some of the same measures have popped up in different states — minimum-wage increases and marijuana legalization, for example, said Josh Altic, the ballot-measures project director at Ballotpedia, a nonpartisan online political database.
“They’re more important to the political landscape in a lot of states than they have been in a while,” Altic said.
'It's a power grab'
But as more voter initiatives appear on ballots, legislatures from Maine to Arizona have responded by undercutting the laws voters pass.
In the past two years, lawmakers filed more than 100 bills to overturn voter initiatives in 24 states, according to Chris Melody Fields Figueredo, executive director of the Ballot Initiative Strategy Center, a progressive group.
In Maine, for example, voters approved four measures on the ballot in 2016, but in the next legislative session, lawmakers introduced bills to amend or repeal each of them. The four initiatives were either delayed, partly repealed or annulled.
“It’s a power grab,” Fields Figueredo said. “It’s an attempt to take that power away from the people. It is counter to why we have democracy in the first place.”
There has long been tension between lawmakers and the initiative process, but the latest backlash is fierce, said Elena Nunez, director of state operations and ballot measure strategies at Common Cause, a nonprofit watchdog group.
The rollback effort is a two-pronged offensive, she said. First, legislatures undo the laws passed through ballot initiatives and then make it more difficult for voters to pass future initiatives.
“Legislatures have become much more brazen in trying to undo what the constituents put in place,” Nunez said. “It has become a more heightened attack. That’s a troubling trend.”
Some on the left say Republicans, after taking control of statehouses across the country in 2010, stepped up the attack on initiatives, which became the last way for progressives to pass laws in those states. Recently, conservative legislatures have challenged criminal-justice reforms and health-care expansions.
But if Democrats were in office, they would also try to block initiatives they oppose, Altic said.
The ballot-initiative process itself is not intrinsically partisan — it is a tool both parties wield.
And it has been used since the Progressive Era of the 1890s to the 1920s, when the modern citizen-driven ballot initiative took root. Populists and progressives of the time advocated for direct democracy as a check on lawmakers they felt were too beholden to special interests, such as the railroad industry in California, that flourished during the Gilded Age.
“Ballot measures are a way for voters to take action when their elected leaders won’t,” Nunez said.
A pattern of nullifications
In the District, where ballot measures date to the late 1970s, the D.C. Council has overruled at least four, in ways that cut across the political spectrum.
When voters approved Initiative 17 in 1984, they guaranteed the city’s homeless a right to shelter. Six years later, the D.C. Council repealed the measure and replaced it with a bill that limited the time families and individuals could stay in shelters.
In 1994, the council partly repealed a 12-year-old measure that imposed mandatory minimum jail sentences, eliminating mandatory minimums for those convicted of nonviolent drug offenses and ending a practice widely seen as a catalyst of mass incarceration.
Two years later, the council overruled a 1992 initiative that established strict campaign contribution limits for local elections. And, in 2001, D.C. lawmakers repealed term limits for themselves, the mayor and the State Board of Education.
The tug of war over Initiative 77 has spurred debate about whether lawmakers should invalidate the results of a ballot measure.
The District and 11 states have no restrictions on legislative alteration (which ballot-measure proponents call “legislative tampering”). But in California and Arizona, any changes to or repeals of initiatives must first go back to the voters.
“If somebody wants that, they should put it in place here,” said Jack Evans (D-Ward 2), one of the sponsors leading the repeal of Initiative 77. “That’s not the way our system is set up. Our job on this council is, if a law goes into place and this council decides to change that, that’s our perspective and our right to do.”
Evans and other opponents, including the city’s burgeoning restaurant industry, have argued that Initiative 77 will raise labor costs and force some restaurants to cut jobs or close.
Advocates decided to go the route of the ballot initiative after the D.C. Council approved a 2016 minimum-wage hike but did not eliminate the tipped wage, which allows employers to pay some workers $3.89 per hour as long as tips make up the difference between that and the city’s current $13.25 minimum wage. Initiative 77 will gradually increase the hourly pay for tipped workers to $15 by 2025 so that there is one standard wage for all workers.
Some questioned the legitimacy of Initiative 77 because it passed by 56 percent to 44 percent but in a primary election with the lowest turnout in decades.
Yet council members overturned term limits, which 6 in 10 voters supported in a general election where turnout surpassed 50 percent.
Council members say overturning initiatives happens on a case-by-case basis and is about the particular law, not the ballot-measure process.
Initiative 77 is just a bad law, said Evans, and Council Chairman Phil Mendelson (D) and council members Brandon T. Todd (D-Ward 4) and Anita Bonds (D-At Large), three other backers of repeal.
The bill’s other co-sponsors, Kenyan R. McDuffie (D-Ward 5), Vincent C. Gray (D-Ward 7) and Trayon White Sr. (D-Ward 8), did not respond to requests for comment.
Mendelson said it is the council’s job to stop bad policy — regardless of whether it comes from voters or lawmakers.
“The source of the law doesn’t make the law any better,” Mendelson said.
Paul Jacob, president of the nonpartisan organization Citizens in Charge, does not think Initiative 77 is a good law. But most voters supported it, and the council should respect that, he said.
“Voters are the boss; the legislators are not. It’s as plain as the nose on your face,” Jacob said. “There has to be some level of respect for the people the legislators purport to be serving, and if there’s no respect, then we don’t have representative government.”
Supporters of Initiative 77 say that if it is overturned, they will appeal to voters.
“We’ll keep going,” said Saru Jayaraman, president of Restaurant Opportunities Centers United, which sponsored Initiative 77 and others like it around the country. “If we need to get it on the ballot again, we’ll get it on the ballot again.”