A lawyer in California has proposed that being gay be a capital crime and that citizens be allowed to kill gay people if the state does not put them to death. The lawyer, Matt McLaughlin of Huntington Beach, will likely soon be allowed to start gathering signatures to put his proposal on the ballot.
The proposal, called the "Sodomite Suppression Act," won't become law. It's hard to imagine the idea would the garner the required signatures to make it onto the ballot. Even if it did, voters wouldn't approve it, and they wouldn't have a chance to if the state Supreme Court found that it contradicted California's constitution. And since the law violates the federal Constitution as well, any federal court would be obliged to strike it down.
McLaughlin is likely very mistaken if he thinks he can get the more than 365,000 signatures of registered voters necessary to get the initiative on the ballot. All the same, his proposal has once again raised a question as old as the initiative process itself: To what extent should state officials be permitted to veto or modify initiatives that are frivolous, offensive or obviously harmful?
Twenty-four states currently allow voter initiatives of some form, allowing citizens to vote directly on laws and constitutional amendments as a check on their elected representatives in the state legislature. The process is most commonly used out West, especially in California and Oregon. Oregon voters have considered the most initiatives in recent years, including a record 18 on a single ballot in 2000, according to a database maintained by the National Conference of State Legislatures.
In the century or so since the process first became available to voters, they've been asked to vote on all kinds of proposals, both serious and trivial, sensible and downright crazy.
In 1920, voters in Massachusetts approved their first initiative, redefining beer and cider as "nonintoxicating" in order to exempt those beverages from Prohibition, because everyone knows you can't get really drunk off beer.
That was still in the early years of the ballot initiative. Since then, citizens have used it to establish or repeal laws on everything from bear-baiting to casino gambling. Voters in various states have declared English an official language, set rules for campaign finance and banned the teaching of evolution. On several occasions, Alaskans have considered moving their capital west from Juneau.
In retrospect, some of these initiatives have been undeniably misguided.
Rules making it harder for legislatures to raise revenue, like California's infamous Proposition 13, keep lawmakers from enacting sensible reforms to a state's tax code. In Oregon, voters have initiated mandatory minimum sentences, which most Americans now agree take discretion away from judges and lock up offenders for far too long. Voters in Mississippi approved a voter-identification initiative, which like similar laws in other states, could actually increase the chances that fraudulent ballots decide an election by discouraging legitimate voters from coming to the polls.
Seventy-five years ago, California voters were asked to decide on a measure declaring the existence of an international Communist movement and requiring that teachers be investigated for Communist sympathies. The initiative failed, but not without winning 40 percent of the vote.
Even that proposal couldn't compare to the disturbing violence of McLaughlin's proposal, which hasn't made it to the ballot yet. It seems likely there have been others equally as extreme that never came before voters and are now forgotten.
Proposals like these are part of the reason that in 2000, The Washington Post's David S. Broder warned that ballot initiatives put sound government at risk. His book "Democracy Derailed" argued that special interests and moneyed political operatives used their cash to pervert direct democracy, manipulating voters into passing laws that served their selfish ends.
On the other hand, there are plenty of examples of decent laws that have been passed by initiative, and that legislators likely never would enacted on their own. A century ago, the initiative was used to establish women's suffrage in the states and to establish primary elections, among other important reforms. Legal marijuana has gone well for Washington and Colorado. California's independent redistricting commission, a sign of progress against gerrymandering, was the product of a voter initiative that could soon be overturned by the Supreme Court.
Polls show that Californians are fond of their initiative process, "They value the ability to weigh in on public policy issues, partly because they don't trust the state government," he said Mark Baldassare, president of the Public Policy Institute of California.
At the same time, he added, "The public has consistently said that they feel that changes are needed in the system."
Gov. Jerry Brown signed a bill last year designed to address some criticisms of the state's initiative process. Legislators will hold public hearings and have a chance to suggest changes to measures before they go before voters. And anyone who is funding an initiative will have to abide by stricter rules on disclosing their involvement.
Correction: An earlier version of this post incorrectly stated that California held the record for the most initiatives on any one ballot. The record is held by Oregon, with 18 in 2000. Our apologies.