SOME TRAUMATIZED LIBERALS are in denial over the death of the Democratic majorities in Congress last week. Others, to judge from their foaming reaction to the words "Speaker Newt Gingrich," have moved on to the next psychological stage, anger.
They may be in shock, but they're not idle. Though liberals cannot keep the victorious Republican candidates they opposed from taking office, they are doing their mightiest to keep the victorious ballot issues they opposed from taking effect. Everywhere, liberals on the losing side of ballot initiatives are marching into court to make sure the people's will is not obeyed.
- No sooner did Californians decisively pass Proposition 187, the measure denying government services to illegal immigrants, than activists filed suit to thwart it. One day after the election, federal and state judges issued injunctions blocking the new law from being enforced.
- On Nov. 8, voters in six more states adopted term limits. Whether their wishes are ultimately carried out or trampled under rides on the whim of unelected judges. Arkansas's term limits initiative is now before the US Supreme Court. For all anyone knows, the justices could end up trashing the election results in all 22 states that have adopted term limits at the polls so far.
- In Massachusetts, voters approved Question 5, repealing the state's Sunday-closing blue laws. Within 24 hours labor union activist John Laughlin, a leader of the failed anti-5 campaign, began talking about suing to keep the blue laws in force. "We'd argue," he said, "that voters did not have . . . the information that they needed to make an informed decision."
The definition of "informed decision," of course, being: a decision John Laughlin agrees with.
This didn't start in 1994. Proposition 13, California's landmark tax-slashing initiative, was attacked in court as soon as it was embraced by voters in 1978.
In 1992, Colorado voters passed Amendment 2, a ban on giving preferential legal status to homosexuals. Gay activists and the American Civil Liberties Union urged a state judge to void the measure. He did.
The same year, opponents filed suit when Nebraskans approved term limits in a 68-32 landslide. A year and a half later, a judge ruled that supporters of the measure should technically have collected more signatures in order to prove they had sufficient public support to qualify for the ballot. Talk about a moot point! Yet, mindlessly, the judge threw out the election.
The left routinely shows its disdain for the judgment of ordinary people. But there is something breathtakingly contemptuous about getting courts to nullify elections whenever liberals don't like the results.
Not all judges play the antidemocracy game. When bitter government employees asked Massachusetts Judge William Young to undo Proposition 2-1/2, the 1980 ballot initiative that rolled back property taxes, he refused. "Whether Proposition 2-1/2 is wise or witless, farsighted or foolish," he wrote in his order dismissing the lawsuit, "is no business of the courts."
But many judges are only too glad to second-guess the voters, and their imperiousness has had a corrosive effect. In his 1985 book "The Politics of Direct Democracy," Patrick McGuigan, a historian of ballot initiatives, warned: "As the courts move increasingly to thwart popular decision-making, it is difficult to see how popular cynicism and discontent can be contained." Nine years on, would anyone dispute that cynicism and discontent have reached epidemic levels?
Parties and politicians don't like direct democracy -- ballot questions -- because it diminishes their control over government policy. Lobbyists and special interests don't like it because it diminishes their control over politicians.
Like it or not, however, the tide of direct democracy is coming in.
Once upon a time it may have been taken for granted that elected representatives were better equipped than Jane Q. Voter to set the government's agenda and make important decisions. Today, Jane Q. Voter is more likely to be educated, more likely to have firm opinions on key issues, more likely to be middle class (and thus to feel she has an economic stake in public policy). She no longer assumes politicians must be wiser than she is. And she is growing steadily more impatient with the notion that her only role as a citizen in a democratic republic is to pull the lever on a voting machine every two years.
Making policy at the polls may threaten hacks and elitists, but it is no threat to thoughtful democracy.
After all, to get an initiative approved by the voters takes an enormous degree of grit, commitment and persuasion. Thousands of signatures have to be gathered, often under severe deadline pressure. The purpose and language of the initiative have to pass constitutional muster. Money has to be raised, a campaign waged, arguments honed. The public's interest has to be kindled, and its support earned.
It is not easy. In 1992, 302 citizen initiatives were attempted in the United States. Only 33 succeeded. This year, 519 were filed; 34 prevailed. To overcome the hurdles that derail most ballot questions is a profound civic achievement. To walk into court on the day after the election and expect a judge to cancel that achievement is a profound civic insult.
(Jeff Jacoby is a columnist for The Boston Globe.)