Op-Ed: Voter Referendums – Good or Bad?

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In Maryland, both as a whole and in our more local sense, this year could rightly be referred to as the year of the referendum.

At the state level we’ve already seen a successful drive to put the MD DREAM Act on the ballot and there are already plans to put the same-sex marriage bill there too, while people in Baltimore County are working to put a recently passed transgender civil rights bill up to a vote as well.

Meanwhile, at the local level activists in Queen Anne’s County have successfully put the big box retail zoning amendment on the ballot and have met the first threshold necessary to do the same with the APFO revision.

All of this is certainly impressive, particularly the ways groups have leveraged modern technology to do what used to be impossible even with paid signature gatherers. But the question remains, is it good?

There’s two components to answering that question:

  1. Are they good in and of themselves?
  2. Can they be relied upon to deliver good outcomes?

The first part is easy for me to answer – no.

Voter referendums are an example of direct democracy and democracy – like any form of government – is morally degenerate if made an end in and of itself.

In the end, all that democracy boils down to is the brutish insistence that might makes right and if a majority feels a certain way than that’s how things should be. As someone far cleverer than I once said, “Democracy is two wolves and a sheep voting on what to have for dinner.”

Now, just to make clear, I’m not saying this is how democracy works in practice (although it certainly has at times), but it is what it means to make democracy the end in itself. The legitimacy of a political system doesn’t lie in how it makes decisions, it lies in how well it protects the rights and freedoms of the people.

The second part is a bit more complex an answer, but ultimately I would argue that the answer here is also no.

In some cases, voter referenda could end up achieving good ends, but I don’t think the chances of optimal outcomes are very high.

Some of that is a structural problem. As I understand the situation in Maryland, referenda are limited to overturning legislation; we don’t have the ability to place issues on the ballot.

This means all referenda can do, at best, is maintain the status quo. Add in that most of the government actions that would mean bigger, more intrusive government (tax increases, regulations written and administered by regulatory agencies, etc.) are exempt from referendum the scope of what a referendum can achieve is limited indeed.

Unfortunately, most of what is available to be put to referendum falls into the category of positive, pro-liberty developments. Same-sex marriage, marijuana legalization, civil rights protections, these are all laws that if passed could and likely would be put to a referendum and quite likely voted down as they upset the status quo enjoyed by the majority, or at least a strong plurality, of likely voters (note, likely voters, not all people).

And even in cases where referendums may defeat bad laws there is cause for concern. In the case of the MD DREAM Act, a poor piece of legislation in my opinion as it leads to subsidized higher ed costs but doesn’t offer any pathway to legal presence, I worry the referendum is doing more harm than good.

If you look at the rhetoric, people who are rightly concerned with cost components of the measure have ended up making cause with, and thereby legitimizing, much more unsavory people whose opposition is rooted in xenophobia and anti-immigrant bigotry. And all of the supporters have fallen into the trap of rhetorically supporting the referendum in terms of democracy for its own sake rather than as a means to achieving the end they want.

But set that all aside a moment, and I’d like to offer one last reason to be skeptical of the good that referenda can be relied on to achieve. Rational ignorance.

As George Mason University economist Bryan Caplan explains in his book The Myth of the Rational Voter people have pretty strong incentives not to be well informed when it comes to politics or questions of policy. Each individual’s vote is statistically meaningless, so the return on educating themselves on the issues is nearly zero. Logically therefore, people aren’t particularly well-informed when it comes to politics.

However there’s more to it than that. If that’s all there was, random variation would make the impact of voting from ignorance negligible. People don’t vote randomly though, they rely on certain systemic biases held by the vast majority of people, biases that are often at odds with actual reality.

In the case of economics, Caplan identifies four incorrect biases held by the general voting public.

  1. Make-Work Bias: The tendency to equate economic growth with job creation and ignore how productivity gains can increase unemployment while making the economy stronger
  2. Anti-Foreign Bias: The tendency to underestimate the economic gains from interacting with foreigners via trade
  3. Pessimistic Bias: The tendency to overestimate the severity of economic problems and not see the real performance of the economy; the public generally always sees things as declining economically when the reverse is generally true
  4. Anti-Market Bias: The tendency to underestimate the benefits of the market system and the trend towards people seeing themselves as victims of markets rather than beneficiaries

I don’t have room to fully flesh out Caplan’s argument beyond this general outline, but his explanations of the false biases that largely govern voting patterns is a compelling challenge to the idea that voters ought to have a veto on policies via direct democracy.

Now, to be clear, given that these are the same voters who choose and remove politicians, this is hardly meant to be an endorsement of giving further decision making power to elected officials either as they serve at the pleasure of their constituents.

What it is though, is an endorsement of the insight I think lies at the heart of the experiment that is America – that there are certain rights and liberties that are so important that no one, whether it be a single person or the majority of the country, has a right to interfere in the personal exercise and enjoyment of.

But to get back to the original question, if referenda, as a form of direct democracy cannot be seen as good in and of themselves and cannot be relied upon to achieve good outcomes due to structural flaws and voter ignorance & irrationality, then it seems clear that there is no reason to view referenda as good or desirable.

Letters to Editor

  1. Keith Thompson says:

    One factor to keep in mind is that if passing a referendum has the effect of violating the constitutional rights of the minority, the courts still have the ability to rule a referendum unconstitutional. That’s part of the checks and balances that exists in our government and one of the most clever things worked out in that great compromise that our Founding Fathers devised.

  2. Michael Troup says:

    I believe slots were a “for” referendum (twice), but if I recall, the GA sent it there. The cases you cite are examples of people demanding the right to a referendum on things which have passed. So I look at it as the mirror image of overriding a veto.

  3. Gren Whitman says:

    @ Keith Thompson: Yes! Courts will defend minorities’ rights protected by the Constitution; they cannot be taken away by any majority vote, be it in a legislature or a referendum.
    If they’re smart, opponents of Maryland’s same-sex marriage law will have second thoughts about petitioning the new law to referendum, knowing clearly in advance that if they succeed, their efforts will be nullified quickly.
    Slightly off the subject because it didn’t involve anyone’s constitutional rights, how many Spy readers remember that, in a successful referendum, a clear majority of Marylanders voted NOT to build the second Bay Bridge? That vote was in 1996, and Gov. Spiro Agnew then figured out how to nullify 289,418 votes against the second bridge (248,942 for).

  4. Gren Whitman says:

    Referendum on Bay Bridge was in 1966, not 1996 … ooops!

  5. John Vail says:

    I was always taught to believe that we live in a representative democracy: a system in which we elect legislators to carry out the collective will, not a direct democracy, like that in ancient Athens, where a small number of citizens (excluding, of course, women and slaves) were able to vote directly on issues which affected them.

    In a representative democracy, I learned, our legislators’ role is a two-sided balancing act: advocating for the views of constituents while, at the same time, considering the welfare of the larger body-politic. When this system works best, that balance operates in a fashion which strongly considers the views of the majority while recognizing the rights of minorities. It is able to do that because political alliances are not permanently cast and legislators must consider whether today’s opponant will be the needed ally tomorrow.

    Direct democracy–read “referenda”–dangerously cast this balancing act aside. It appeals to the lowest common denominator and openly pits the will of the majority against minorities, whose rights, in the process, may be trampled.

    Let our representatives do their difficult jobs; if we don’t like the results, let’s throw the rascals out. But let’s not take the difficult job of legislating into our own hands.

  6. Keith Thompson says:

    I tend to agree with John Vail and for one simple reason…legislators are required to take an oath to uphold the Constitution; voters are not.

  7. Steve Payne says:

    California tried direct democracy and it almost put them under.

  8. Gren Whitman says:

    Keith Thompson says that “legislators are required to take an oath to uphold the Constitution; voters are not.”
    True, Mr. T., but as citizens, voters are expected to uphold the Constitution all day, every day … dawn-to-dusk … can-to-can’t … week-in-week-out … grade-school-civics-class-to-grave. No ifs, ands, or buts.

  9. Keith Thompson says:

    Gren, citizens may be EXPECTED to uphold the Constitution but in reality, they often don’t. The difference is that you can vote out legislators but you can’t vote out citizens (however, courts can overrule them).

  10. Gren Whitman says:

    Keith Thompson writes: “Citizens may be EXPECTED to uphold the Constitution but in reality, they often don’t.”
    Yes, and let me add that when one group of citizens ignores the Constitution, it’s the responsibility of others to call them on it and to remind them about the role of federal courts.
    Indeed, this was precisely the situation in Rock Hall last year when popular sentiment wanted recitations of the Lord’s Prayer at Town Council meetings. It was only the threat of a legal complaint against the town that led to a new policy on public prayer.

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