Voters Love Ballot Questions. Why Doesn’t the D.C. Council?
On a chilly Thursday last month, a coalition of labor and social justice groups turned out in front of the Wilson Building for another rally for a higher minimum wage. The crowd was familiar, too—they were many of the same people who unsuccessfully pushed for the Walmart living wage bill and shouted down the D.C. Council’s recent hearing on an across-the-board minimum wage hearing.
This time, though, a few things were different. The activists were more professional—the ghoulish David Catania and Muriel Bowser signs, apparently meant to win those councilmembers over to their side, have been replaced with slickly packaged polling data. The groups have banded together into an umbrella group, D.C. Working Families.
They have a new strategy, too. Instead of lobbying the Council to pass their favored bills, the group is ditching the lawmakers for a ballot initiative. Pending Board of Elections approval, the groups behind Working Families say they can get enough signatures to put a question mandating a $12.50 hourly minimum wage for nontipped employees and $8.75 wage for tipped ones on the ballot for 2014.
D.C. Working Families aren’t the only ones bypassing the usual legislative process this election cycle. DCMJ, the marijuana lobby’s own umbrella group, is negotiating with the Office of the Attorney General and the District’s Board of Elections on language that would enable it to gather petitions for an initiative legalizing pot. With those two potential issues headed to the ballot and polling suggesting voters are in favor of both, along with the passage of five charter amendments since 2010, ballot questions are enjoying a new popularity—but that doesn’t mean they won’t be overturned by the Council.
Consider the fate of making the District’s attorney general an elected position, an idea approved by the Council in legislation and by residents in a 2010 vote. Despite popular support for the bill and a 12-1 Council vote in favor of it in 2010, lawmakers opted to postpone the election from 2014 to 2018 earlier this year, citing a lack of candidates and confusion about what powers would come with the job. (Never mind that the Council could have resolved that second question on its own.)
Of course, ignoring the will of the people in favor of the will of the Council isn’t new. Consider the fate of the 1994 term limits initiative, which would have limited the mayor and councilmembers to two terms of four years. The measure passed with 62 percent of the vote and went into effect in 1995, only to be repealed in a bill proposed by Ward 2 Councilmember (and current mayoral hopeful) Jack Evans in 2001.
What’s remarkable is that, this time around, the same councilmembers who are actively seeking residents’ votes to become mayor say they’re willing to discount them when it comes to ballot questions. At November’s D.C. Bar debate, the three mayoral hopefuls who voted to delay the attorney general election—Evans, Bowser, and Vincent Orange—defended their decision on the grounds that voter-approved questions should amount to little more than a friendly recommendation from the public.
“It’s the Council’s job at the end of the day to do what’s best for the city,” Evans said. “And if a referendum happens to be passed that’s not in the best interests of the city, we have to act.”
Orange adopted a different tack, likening opposition to a four-year election delay to slavery.
“When you look at laws, we’ve changed laws since the beginning of time,” Orange said. “Some of those laws indicated that I was only three-fifths of a man, but that was the law.”
But the District’s ballot initiative process isn’t the Wild West that the mayoral hopefuls would have voters believe. Initiatives can’t violate the Home Rule charter, human rights laws, or budget acts. They also can’t appropriate money from the District’s budget. The restrictions already ensure that a couple of elections won’t turn the District into the East Coast equivalent of ballot initiative–crazed California—the city doesn’t need the Council to step in and toss out election results to protect us from ourselves.
“Now if you’re a popularly elected councilmember, you’ve got to think that carries a lot of weight with you,” says Gary Thompson, the lawyer who’s representing attorney general candidate Paul Zukerberg in the legal fight to keep the race in 2014.
The attorney general vote came as part of a Council-approved amendment to the Home Rule Charter—the District’s version of a constitution. Zukerberg’s attorney argues that language setting the election in 2014 was part of the amendment, meaning that moving the date would violate the charter, while the city’s Office of the Attorney General claims the date of the first election wasn’t actually set by the vote. Zukerberg’s attempt to keep in the race in 2014 has fared poorly so far, bouncing from court to court and already failing one attempt to get an injunction to keep the race on the ballot.
Despite the increasing evidence that ballot questions only matter as much as the Council wants them to, though, polls suggests that voters still back them. A DCMJ poll in April found 63 percent of respondents would vote to legalize marijuana. A D.C. Working Families October poll on an initiative raising the minimum wage to $12.50 found 74 percent in support, with popularity only dipping to 58 percent as the question become more critical of higher mandated wages.
Like other initiative organizers in the past, D.C. Working Families Executive Director Delvone Michael is sure that his issue will be the one the Council is too afraid to ignore. He’s got a point—between the support of unions and low-wage workers, the minimum wage has a more natural constituency than, say, ethics reforms. (And a trio of charter amendments on ethics passed easily last year, each receiving 78 percent of the vote or more.)
“I think that if they overturned something like that, they would do so at their own peril,” Michael says.
Of course, not everyone on the Council voted to delay the attorney general election. Mayoral hopeful Tommy Wells tried to keep it in 2014, as did Catania, who’s mulling an independent bid for mayor (and was rumored, at one point, to be a potential AG candidate). So did Council Chairman Phil Mendelson, who tried to avert a delay only to lose 7-6 on the final vote (Mendelson says he was convinced his side had the votes to win).
Wells’ opposition to the delay worked in his favor at the first mayoral debate, at least with the high-information voters that make up early forum crowds. He’s joined by the race’s two would-be outsider candidates, restaurateur Andy Shallal and former State Department official Reta Lewis. A franchise-crazed Shallal goes even further, pushing for the voting age to be lowered to 17.
Meanwhile, Mayor Vince Gray didn’t veto the Council’s attorney general move, but he didn’t publicly support it until he signed it into law, either.
So what’s a ballot question backer to do? At best, they can hope that their issue—unlike term limits or the attorney general election—is the rare one that people will keep following after casting a ballot for it. Michael, the executive director of D.C. Working Families, doubts that an increased minimum wage could be disappeared as quietly as the attorney general’s race.
“Taking money off of people’s tables is a lot different from not letting them elect some rich white dude to enforce the law,” he says.
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Photo by Darrow Montgomery