No Statewide Referendum

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Except for school taxes, Delawareans rarely get a direct voice in new legislation

In the November elections, New Jersey voters approved an amendment to the state constitution legalizing recreational marijuana for those 21 and older. In Florida, the electorate passed a gradual minimum-wage increase from the current $8.56-an-hour to $15 by 2026.

Many political observers agree that both of these initiatives would be popular with Delaware voters. But if recreational weed is to become legal in the First State, and if the minimum wage is to increase above the current $9.25, it will be the General Assembly, not the voters, who will make those changes.

That’s because, in the words of the Initiative and Referendum Institute: “Delaware allows less popular participation in lawmaking than any other state. Delaware . . . is the only state in the nation that does not require popular approval of constitutional amendments.”

Changing the State Constitution, which was amended in 1897, to allow for statewide referendums is an arduous process. Explains Dr. Samuel L. Hoff, professor emeritus of history and political science at Delaware State University: “Our amendment process requires the vote of two-thirds of both chambers in two successive sessions of the legislature, without any popular participation in the procedure.”

Over the past 60 years, at least two state legislators have led attempts to introduce initiative and referendum reform, but both failed. In the 1960s and ‘70s, House Majority Leader John P. Ferguson, D-Churchmans Road,  sponsored Initiative and Referendum (I&A) bills in nearly every session. He finally got it to a vote, and it was approved on the first ballot by the House and Senate. But in the required second session, the House voted it down, 22 to 6, on March 29, 1979.

Sen. David McBride, D-Hawks Nest, then took up the cause. McBride, who spent 40 years in the General Assembly, was defeated in last year’s primary by newcomer Marie Pinkney. Beginning in 1997, and for many years thereafter, McBride proposed legislation to amend the state constitution to allow for I&A.

“It didn’t even have a hearing,” says John Flaherty, long-time Delaware political observer. “It was sent to Executive Committee, and it died there. It never came to a vote.”

Finally, McBride says, “I gave up; I didn’t want to waste any more trees.” (Appropriately, he turned his attention to environmental legislation.)

The reason his proposals failed, says McBride, is because “the Legislature didn’t want to give up their right to do things.”

Flaherty is more candid: “These guys don’t like to be second-guessed. They like to control public policy in Delaware. They want you to go to them. If something is going to be done, they want to be the ones to introduce it and get credit for it.”

As McBride points out, however, Delaware does hold referendums on school taxes. And these special elections have become more numerous as school districts search for much-needed funding.

The Christina School District, for instance, took four referendums to voters from 2015 to 2019. Two were rejected in 2015, which led to laying off 78 teachers and 14 aides. A third referendum passed in 2016, which restored the cuts. A 2019 proposal that would have resulted in an average per-household tax increase of $220 per year was defeated.

Even this power is in danger of being taken out of voters’ hands. Some legislators believe the right to raise taxes should be with school boards. In 2017, a bill that would have allowed districts to increase taxes every two years was introduced, but it never made it to a vote.

There have been other efforts to put initiatives on the ballot. In 1980 the police and firefighters unions collected enough signatures to put an initiative on the ballot in Wilmington, only to be told that there was no longer an initiative procedure. The legislature had quietly passed a municipal charter law in 1965 that contained no I&R provision, and this law, state courts ruled, superseded the law that had given I&R to Wilmington in 1907.

Referendums can backfire, say some politicians.

Rep. John Kowalko, D-Newark, says that, as a populist, he believes “the voice of the people should be amplified.” But, he adds, implementing statewide referendums “would require a very serious dialogue on how they would be implemented and what effect they would have.”

He cites California, a state that regularly asks its residents to vote on a variety of laws, resulting in what Kowalko characterizes as “some pretty crappy decisions.”

In 2008, for instance, Proposition 8 repealed the state’s same-sex marriage law, years before the Supreme Court made such marriages constitutional on a national level. And in 2003, California’s first-ever gubernatorial recall election was held, and Gray Davis became the second governor in U.S. history to be recalled (the first was North Dakota’s Lynn Frazier, in 1921).

Cassandra Marshall, chair of the Wilmington Democratic City Committee, also offers a cautionary note. While there is some value in what she calls “direct democracy,” she says: “I would be leery of [Delaware] basically becoming California, which has become the wild west.”

Referendums, she says, often serve as an opportunity for “special interests to spend a ton of money to get their issues passed.”

“These are not issues that voters are going to get themselves educated about,” she says. “[For instance], in California, somewhere in the last two election cycles, there were referenda about how certain types of medical facilities are run.” Those proposals passed, she says, “and these special interests have gotten permission to do things that maybe the legislature wouldn’t let them do [before the referendum passed].”

She says she would be open to “direct democracy,” but adds: “The way to do it is focus on the voters, and it has to be developed with some high bars, so it’s not easy for special interests to spend a ton of money on it. Then leave it to the legislature to make it work.”

Sen. Laura Sturgeon, D-Pike Creek, Hockessin, Greenville, also has reservations regarding ballot initiatives, and points out that voters already have a strong voice in what legislation is implemented in Delaware.

“Our representative democracy was set up so that every two, four, or six years we cast our votes for people we trust to use their judgment and expertise to make decisions for the common good,” Sturgeon says. “If these people fail us, we can vote for new representation. Ballot initiatives circumvent that process.”

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