As independent voters, we’re all about ensuring that power resides with “the people,” but what does that mean?  Can “the people” have too much power in a representative, constitutional democracy?

Recent developments in Maine and Utah this week (discussed below) have me thinking about this.

I’m also asking this question because here in New Hampshire, as in many other states, voters don’t have the right to adopt or repeal laws by initiative or referendum.  When it comes to enacting the types of good government and electoral reforms that independent voters would like to see, we’re at the complete mercy of the legislature, and legislators are often resistant to changes that have any chance of disturbing their power.

Those opposed to giving “the people” the power of initiative and referendum argue that the legislature already represents “the people.” They assert that the ideal government, as established by the Founders, is a representative democracy rather than a direct democracy.

Thus, the people-at-large are not supposed to make the laws; they’re only supposed to vote for representatives, and then those representatives make the laws.

Though not exactly on point, related conflicts are currently playing out in Utah and Maine.

In Utah, the legislature is scheduled to hold a veto override session on Wednesday, April 18, in a “turf war” with the governor over proper separation of powers. They want lawmakers to be able to intervene in court to defend the laws they pass, something that has traditionally been reserved for the attorney general’s office, potentially setting up the state to be represented by two separate, conflicted counsel at the same time.

The vetoed bill budgets $700K to hire three attorneys and staff for the legislature to defend laws in court (even though this is the job of the attorney general’s office and the legislature already has legislative counsel to help with drafting laws). Is it appropriate for the legislature to cross over into the executive realm when they don’t like the way the executive branch is doing its job?

In Maine, the legislature is also fighting for more power. After “the people” passed a citizen initiated referendum in November 2016 in favor of ranked choice voting, the Maine Senate insisted on obtaining a Supreme Court advisory opinion before the law had even been implemented.

When the court indicated that only a portion of the law conflicted with the Maine Constitution and that the other portion could go forward, giving the legislature time to amend the Constitution so that all of it could proceed, the legislature instead worked to delay and effectively repeal the law.

“The people” of Maine answered back again by securing enough signatures to allow RCV to go forward for the June 2018 primaries, and to place the question before the voters again (revised to decidedly not conflict with the Maine Constitution) to secure implementation of RCV in the 2018 general election.

When the Maine secretary of state seemed to waver on going forward with the June primaries, the Committee for Ranked Choice Voting immediately sought a temporary restraining order – which was granted earlier this month by the Superior Court – requiring the Maine secretary of state to continue implementing ranked choice voting for the upcoming June primary.

Nonetheless, even though the secretary of state is able to implement RCV in time for the June 12 primaries without any additional funds or new legislative action, the Maine Senate has demanded complete control.

The Senate brought a whole new set of legal challenges, claiming the secretary of state lacks the power to “fill in the gaps” so-to-speak, without further legislative action, to implement what the people have passed.

It should be noted that on this point, the secretary of state disagrees with the Senate, claiming broad discretion in the implementation of election laws.  Thankfully, the Maine Supreme Court just ruled to affirm the Superior Court, requiring the secretary of state to proceed with the June primaries, using ranked choice voting.

Let me first make clear that I agree that government generally works best as a representative democracy, and I find direct democracy to be impracticable in most circumstances.

I also believe that the concept of “separation of powers” provides for the kinds of checks and balances we need on each branch’s respective power, and I’m generally opposed to one branch overreaching into another branch’s realm.

Even so, while I believe that the problem in Maine is different than the problem in Utah, in both cases, the legislature is out of line.

In Maine, the legislature is effectively working to shut out the voice of “the people,” and is not representing “the people” at all.  In Utah, the legislature is engaged in a “power grab,” and isn’t respecting the separation of powers.

The initiative and referendum process is designed to be used rarely, as a last resort when the legislature fails to represent “the people.” When used as such, it’s a good check on whether the legislature is suitably representing “the people.”

In Maine, “the people” do have the power of initiative and referendum, and when “the people” appropriately exercise it, the legislature is out of line to try to thwart it or not allow for its implementation.

In Utah, it would be more palatable if the legislature had made a provision for particular, rare instances when it might be appropriate for them to be able to intervene; but the bill they’re attempting to pass via override doesn’t limit the legislature, but rather gives it carte blanche power to intervene.

As most active independent voters know, the biggest problem here is that our elections themselves fail to give “the people” full power in electing their representatives. When the voice of the people isn’t effectively reflected in our elections, then it’s likely the people won’t be fairly represented by the legislature.

If people are worried that measures such as initiatives and referendums are giving the people-at-large powers that should primarily be reserved for the legislature, then those same people should demonstrate their commitment to allowing “the people” to exercise their full power in electing their representatives.

What does it mean for power to reside with “the people”? It means we have completely fair and open elections. The best way to give power to the people is by having open primaries, not controlled by the parties; by using election methods – such as ranked choice voting – that better allow the will of the people to be reflected; by doing away with the problem of parties controlling redistricting and gerrymandering districts; and by changing the way campaigns are financed so that the big donors don’t exert such lopsided control over our elections and the representatives elected.

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