South Dakota put abortion bans on the ballot several times, and each time the initiative was soundly rejected by voters:
In 2006, lawmakers passed a bill banning almost all abortions, which Gov. Mike Rounds signed. It set off a brutal campaign that became the dominant issue in a busy election year that featured a governor’s race and 10 other ballot issues. Voters rejected the ban by 56% to 44%.
Abortion opponents decided to make another run in 2008, collecting enough signatures to return abortion to the ballot. The key difference between the two measures was that the 2008 effort included exceptions for rape and the mother’s health. Opponents figured the lack of exceptions in 2006 had doomed their efforts.
They were wrong. The 2008 vote was nearly identical to 2006, with 55% rejecting the measure.
Despite these votes, the South Dakota government went ahead and made abortion illegal.
Does this sound familiar? Perhaps you recall the following:
South Dakota has voted to legalize marijuana use for adults.
Constitutional Amendment A, which passed with 53.4% of the vote, “legalizes the possession, transportation, use, and distribution of marijuana and marijuana paraphernalia by people who are 21 or older.”
The legalization was to take effect in 2021, but it never happened. The amendment was rejected by the South Dakota Supreme Court on a minor technicality. You might think that’s no big problem. They can vote again on a cleaner initiative in 2022. But the anti-democratic elements in South Dakota are unwilling to give up so easily:
South Dakota voters will decide later this year whether to become the 20th state in the nation to legalize marijuana for recreational use, after supporters filed thousands of signatures with state elections officials earlier this month.
But five months before Election Day, it’s not clear exactly what share of the vote supporters must rally in order to win approval.That’s because those same voters head to the polls next week in a primary election that could rewrite the rules just ahead of November’s vote. On Tuesday, voters will decide whether to approve Amendment C, a proposed change to the state’s constitution that would require most ballot measures to win 60 percent of the vote in order to pass, rather than a simple majority.
Fortunately, Amendment C was defeated by a margin of more than 2 to 1. It will be interesting to see what tricks the South Dakota government tries next after the pot referendum once again passes this November.
The cynical side of me suspects that neither the left nor the right favors democracy. The left tries to thwart the will of the people by having unelected bureaucrats and judges make the rules. The right tries to make it harder to vote, contests elections results, and gerrymanders districts so that 45% of Americans can rule over the other 55%.
People care more about getting their preferred result than having a democratic process.
PS. Think about the fact that South Dakota is one of the most conservative states in the union, and yet even there voters reject bans on pot and abortion. Just imagine a nationwide vote on these issues. (BTW, I’m not suggesting we have national referenda, just commenting on how out of line our politics is from public opinion.)
READER COMMENTS
John Hall
Jun 27 2022 at 1:58pm
“People care more about getting their preferred result than having a democratic process.”
Just plaster that everywhere
Brett
Jun 27 2022 at 2:02pm
Can they get a referendum on there overturning the ban again without legislative approval? That seems like the way to go.
Kevin
Jun 27 2022 at 2:47pm
What’s the government’s justification for outlawing cannabis, or any other drug for that matter? Is it the commerce clause?
Scott Sumner
Jun 27 2022 at 4:43pm
I suspect it’s the federal government’s rationale, which is quite far-fetched. But don’t look for the “originalists” on the Supreme Court to fix the problem. And I think we all know why.
Kevin
Jun 27 2022 at 5:47pm
No question. I’m not expecting consistency either.
robc
Jun 27 2022 at 7:58pm
Thomas tried to with Raich.
Kevin
Jun 27 2022 at 8:13pm
Great point.
John Hawkins
Jun 28 2022 at 11:55am
It wasn’t just Thomas, as well! He was joined by two other “conservative” justices while the others sided with the federal government – I think the justices are actually more consistent than they are given credit for
Chris
Jun 27 2022 at 6:20pm
Commerce Clause, but not solely interstate. Also bringing the U.S. in line with treaty obligations or some such…
Ted Durant
Jun 27 2022 at 6:31pm
By “the commerce clause” I assume you’re referring to the enumerated powers in the US Constitution. That’s a limit on the federal government, not on state governments. In general, state governments are free to regulate whatever they wish, subject to their own constitutions.
Kevin
Jun 27 2022 at 6:35pm
Right, I was just thinking generally, since the federal government has several schedules of banned chemical compounds.
Mark Z
Jun 27 2022 at 3:02pm
Presumably, state legislators care about winning elections and governors and are behaving accordingly. So, are the voters who vote in referenda a significantly different set from those who vote in elections for state officials? Getting legislatures/governors that are constantly at odds with referenda results might suggest so.
Scott Sumner
Jun 27 2022 at 4:45pm
No, that’s not the problem. These referenda occur during the November elections, when the politicians are elected.
BS
Jun 28 2022 at 11:43am
Or, “we agree with this party most of the time, but not on these couple of things”.
BC
Jun 27 2022 at 3:10pm
“The left tries to thwart the will of the people by having… judges make the rules”
Given recent days, I’m not so sure that’s true. The current Court is suspected of harboring pro-life views, probably most of all by the left. If a pro-life Court made the rules on abortion, presumably they might find that the “penumbra” of unenumerated rights included the right to life of the unborn and ban abortion nationwide. So, I’m not sure who the left now thinks should make the rules on abortion. They seem to think that purportedly pro-life judges should make pro-choice rules. That would be like pro-lifers threatening to pack the Court in the 1970s unless pro-choice judges made pro-life decisions. Instead, pro-lifers demanded merely that the Court defer to states to make their own laws, whether through legislatures or direct referenda. Now that the Court is purportedly pro-life, pro-lifers have not switched to demanding that those judges make the rules on abortion and ban it, and those judges have indeed deferred to states. So, there seems to be some sort of asymmetry in the hypocrisy and how those hypocrisies are perceived. A purportedly pro-life Court deferring to states, including pro-choice states, is viewed as a win for pro-lifers and a loss for pro-choicers.
Scott Sumner
Jun 27 2022 at 4:48pm
It seems like recent events support my claim. The left supported the 1972 Roe decision. I didn’t say that judges always do what the left favors.
Ted Durant
Jun 27 2022 at 6:37pm
Exactly! The current furor is essentially the left yelling at the Supreme Court because it turned against them after decades of making decisions they sought as a means of bypassing the legislative process.
John Hawkins
Jun 27 2022 at 4:23pm
I actually think the “what % approval should be required” question is completely under-studied – I understand it was likely employed cynically here, but there is clear value to be captured. I think about the votes to join the EU and leave the EU in Britain – wouldn’t the country have gone through far less tumult had they held a higher bar to joining in the first place (and so never joined and then left)? More generally, if we imagine referenda on a topic being held daily, a whimsical median voter or randomly-inspired-to-vote partisan voter will cause policy to swing from one day to the next. Some combination of the granularity/lumpiness of the policy options, frequency with which policy options are up for vote, and margin of victory required, all contribute to the degree of procedural conservatism, but we don’t seem to intuitively lump all of these things together. The only treatment I’ve seen of this is in the calculus of consent, and that relates more to how representative voting structures can be nominally democratic but de facto minority rule (if 50% + 1 electors vote for something, who were elected by popular vote on margins of 50% + 1, was this a democratic outcome, or are 25%+1 of the voters controlling the outcome for 75%-1 of the rest of the population?).
Richard W Fulmer
Jun 27 2022 at 5:22pm
So, democracy is our highest good? If a majority of South Dakotans voted to enslave economists, you’d be okay with that?
Scott Sumner
Jun 27 2022 at 7:54pm
Do you want me to answer that question?
Ted Durant
Jun 27 2022 at 6:43pm
Are you saying that “the left” (the Democratic Party) don’t contest election results or gerrymander districts?!?!
Or, for that matter, make it harder to vote? Like, slashing the tires of vans that the Republican Party planned to use to help people get to polls? (Yes, Democrats did that in Wisconsin.)
Scott Sumner
Jun 27 2022 at 7:56pm
“Are you saying . . . ”
I don’t know. Did I say that?
Michael Sandifer
Jun 27 2022 at 8:53pm
Do you want to compare anecdotes to nation-wide policies?
Ted Durant
Jun 28 2022 at 5:21pm
Sure! Feel free to give supported examples of nation-wide policies. Simply asserting “this is party X’s nation-wide policy” won’t cut it.
MIchael Sandifer
Jul 4 2022 at 6:36pm
The fact that you even cite anecdotes like slashing tires, which have nothing to do with coming anywhere close to influencing the outcome of an election to gerrymandering, or making it more difficult to vote says quite a bit.
Unfortunately, I admit that Democrats rig voting in states like California to maintain a one party monopoly, and it should be illegal. I favor competition in every state.
Republicans are openly anti-democratic, rigging voting in red states, while often not even defending democracy rhetorically. Democrats certainly play fairer on the national level, while, unfortunately, many blue state due gerrymander.
MIchael Sandifer
Jun 27 2022 at 8:51pm
Unfortunately, your argument seems plausible. The left, of which I’m a member, does seem to increasingly try to expand the scope of federal regulators to cover issues like climate change and social justice. Both are worthy causes, but institutions like the Federal Reserve and the SEC shouldn’t have anything to do such regulation. It’s out of the scope of their legally granted responsibility and they presumably lack the expertise to address those issues well.
And you’re quite right about the right, who really are only interested in getting their way, anyway they can. They don’t even pretend to value democracy anymore.
MarkW
Jun 28 2022 at 11:33am
They don’t even pretend to value democracy anymore.
But the Supreme Court justices appointed by Republicans do seem to value democracy or, more to the point, constitutionality rather than just getting the politically desired result (generally unlike the results-focused judges appointed by Dems).
MIchael Sandifer
Jul 4 2022 at 6:31pm
I’ll give you that Justice Roberts seems to try to rule on his understanding of the law and Constitution, even if I disagree with some of his decisions. But, most legal scholars are acoffing at the decisions by conservatives on the Court, especially those suddenly overturning long-term precedents.
Also, many of the most “liberal” decisions the Court ever made were made by Republican nominees.
It’s telling that so many decisions over the past generation break down along party lines.
Justice Thomas is a joke. He should be impeached.
ee
Jun 27 2022 at 10:13pm
🙋♂️ I’m a fan of >50% threshold for referenda. Signal from those votes is messy and unstable (see yes/no confusion, survey question wording problems, and Brexit). Brexit barely passed (51.89%) and was a hugely expensive outcome that was immediately regretted. A higher threshold (52? 55? 60? 67?) makes it more likely the outcome is understood and stable.
ee
Jun 27 2022 at 10:14pm
I feel the same way about congressional decisions and Supreme Court decisions (don’t reverse lower court ruling unless you have 6/9)
JFA
Jun 28 2022 at 9:10am
“I’m not suggesting we have national referenda, just commenting on how out of line our politics is from public opinion.”
{Joking tone} This reminded me of an economist who keeps saying public opinion doesn’t exist: https://www.econlib.org/the-many-problems-with-public-opinion/
🙂
Scott Sumner
Jun 29 2022 at 11:41am
Public opinion as expressed in polls. This is about public opinion as expressed in elections.
Michael Rulle
Jun 28 2022 at 9:28am
A state with a few hundred thousand people does not represent “politics being out of line with public opinion”. Before Dobson, abortion was allowed up to 20 weeks—-so,I am unsure what you are talking about.
With Dobson, I assume the pro-choice/ pro-life people will make a move to pass a law. Governor is pro-life. Let’s assume that there is a 55-45 view that abortion should be allowed. That means a veto would be unpopular. And if it is important enough they will elect a pro-choice Governor. If they don’t, it means it’s not as important as other issues.
There is nothing odd about that. One possible reason this is not that important is they can cross the border to Iowa.
Michael Rulle
Jun 28 2022 at 9:40am
PS—-see abort73.com and Planned Parenthood re South Dakota.
Niko Davor
Jun 29 2022 at 12:38pm
The writers here are passionate about immigration, and are quite explicit about their moral authority to overrule democratic outcomes. Similarly, for zoning regulations, environmental issues, etc. It’s not just left/right politicians. People who are passionate about any issue, and convinced they are right, are often willing to break the rules, and overrule the votes of others that disagree, and overrule democratic outcomes.
Scott Sumner
Jun 29 2022 at 2:34pm
“The writers here are passionate about immigration, and are quite explicit about their moral authority to overrule democratic outcomes.”
Which writers are you referring to?
Niko Davor
Jun 29 2022 at 7:36pm
Obviously, Caplan recently departed this site, and he is the most fanatic about immigration and overturning the democratic process, and undermining laws… I get the feeling there is not much disagreement on that with Sumner and Henderson and Lemieux.
JoeF
Jun 30 2022 at 7:12am
I guess if you surveyed voters on how many weeks after conception abortions should be legal, you would get a range of answers from 0 to 40 (or more). The variety of opinions on this question is pretty much evident in the range of abortion laws on earth. So, to take a single number and then have a referendum on it would seem to be an exercise in demonstrating the problem with referendums, which is that the “winning” value may not be at all what the majority would have chosen (the Condorcet paradox).
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