- The Washington Times - Monday, October 28, 2002

South Dakotans who go to the polls next week will vote on whether jaywalkers, drug offenders, pickpockets and other lawbreakers even those who admit guilt should be given the chance to avoid conviction by claiming they were charged under an unfair law.
"It's a form of jury nullification. You're caught with drugs, but the jury could find you innocent if your attorney convinces them that the law under which you were arrested is unjust," said M. Dane Waters, president of the Initiative and Referendum Institute (IRI), a nonpartisan research group that monitors ballot questions.
The measure, known as Constitutional Amendment A on the South Dakota ballot, is a far cry from the tough "three strikes, you're out" policy that was popular with voters in the previous decade. During the 1990s, some 25 states passed laws requiring violent offenders convicted of a third felony to be imprisoned 25 years to life without the possibility of parole.
However, the South Dakota ballot question is very much in sync with some other high-profile criminal justice measures that will be on state ballots next week. They include:
A measure on the Nevada ballot that would decriminalize marijuana possession in that state if the person who has the drug is 18 years of age or older and the amount of marijuana is 3 ounces or less. Currently, possession of more than an ounce of the drug is punishable by up to four years in prison; possession of less than an ounce can mean a $650 fine.
The Nevada initiative, however, cannot become law unless it is passed this year and in 2004. Opponents and advocates both say the measure, in theory, could lead to the opening of state-owned marijuana stores.
Issue 1 on the Ohio ballot would provide supervised treatment, not incarceration, for first- and second-time violators of drug-possession laws found with a small amount of illegal narcotics. Those involved in drug trafficking would not qualify. In fact, the measure would stiffen penalties for drug kingpins.
Voters in the District will decide whether to bar imprisonment for first- or second-time convictions for possession or use of any Schedule I drugs, such as marijuana, cocaine and PCP.
A ballot measure in Arizona would create a medical-marijuana user-registry card system; set up a state-run distribution system for cardholders; and establish a maximum fine of $250 for possession of 2 ounces of pot or less. However, it would stiffen penalties of those who commit violent crimes while on drugs.
"This is all part of the new front of the drug policy reform movement," Mr. Waters said.
Both he and Kristina K. Wilfore, executive director of the liberal Ballot Initiative Strategy Center, said the federal Drug Enforcement Administration is trying to block these reform initiatives, which it claims are in conflict with federal drug laws.
DEA Director Asa Hutchinson has traveled to states set to weaken drug-enforcement laws and has spoken out against the drug reform ballot initiatives. A DEA spokeswoman said Mr. Hutchinson was recently in Ohio, where he criticized Issue I.
Ohio Gov. Bob Taft and his wife, Hope, are also actively opposing Issue I. Edward Orlett, who heads the pro-Issue 1 campaign, said, "It's now a tossup" how the measure will do on Election Day. He said some voters could be frightened off by ballot language that says the proposal's cost will be $247 million. He said that figure represents spending over six years plus $19 million in start-up costs.
John P. Walters, director of the Office of National Drug Control Policy, went to Arizona earlier this month and criticized its ballot initiative that would also make possession of small amounts of marijuana punishable by a civil fine and would make it harder for people to be jailed for using any illegal drug. Mr. Walters called the initiative "despicable" and "shameful," according to the Tucson Citizen.
Not long ago, conservatives seemed to dominate ballot initiatives. They focused on issues such as tax cuts, term limits, bans on partial-birth abortion, school vouchers, restrictions on homosexual rights and tough criminal justice laws.
But that's not the case this year.
"There are 30 percent fewer initiatives on the ballot in this election cycle than in 2000. There are no partial-birth abortion questions, no school-choice questions, and fewer tax-cut measures than in the past," Mr. Waters said.
In fact, what many see as the main ballot question issue this year that is supported by conservatives would eliminate bilingual education in schools in Massachusetts and Colorado. The initiatives in those states would require children to be taught by using the English language in the classroom. The new anti-bilingual education initiatives in these states follow victories on the same issue in California and Arizona.
Other ballot initiatives touted by conservatives include one in Nevada that would ban homosexual "marriage" and another in Massachusetts that would eliminate the state's income tax. The Nevada measure that would not recognize homosexual "marriages" was passed by voters in that state in 2000. But state law requires that it be voted on twice before becoming law. "It's assumed it will pass overwhelmingly," Mrs. Wilfore said.
This year, said Mr. Waters, it's predominantly "progressives," or liberals, who are pushing the high-profile issues on state ballots. Besides the kinder, gentler treatment being sought for drug users and other offenders in the District, Nevada, Ohio, Arizona and South Dakota, there are proposals to allow:
Election Day voter registration in two states, California and Colorado.
To make the March 31 the birthday of the late union activist, Cesar Chavez, a paid holiday for state government employees in Colorado and New Mexico.
To provide universal health insurance in Oregon and to require the labeling of genetically manufactured foods in that state.
To raise the minimum wage in Oregon to $6.90 an hour next year and adjust it for inflation in future years.
Among other hot issues to be watched in this election cycle, says Mrs. Wilfore, are education reform, labor reform, election reform, the environment and animal rights.
Three states have animal-welfare initiatives on their ballot. A proposal to ban cockfighting is on the ballot in Oklahoma, one of only three states where it remains legal. Voters in Florida will consider making the state the first to outlaw the confining of pregnant pigs in small metal cages. And Arkansas will vote on whether to become the 38th state with felony penalties for extreme acts of animal cruelty.
Mrs. Wilfore says she believes her organization, the Ballot Initiative Strategy Center (BISC), founded in 1998, has had a role in helping liberals "see the initiative process as another tool to pass progressive measures."
Mr. Waters says he believes there are several key reasons for the reduction in conservative-driven ballot measures:
He says there are fewer tax-cut and term-limit initiatives this year since such proposals have already appeared on the ballots of most states that allow voter-petitioned initiatives and have already been decided by voters.
The increased regulation of the initiative process has made it much harder to use.
Increased court action that has struck down initiatives on technical grounds and overturned many state laws banning partial-birth abortions, has had a "chilling effect" on some would-be users of the initiative process.
Conservatives are waiting for redistricting and the midterm elections to see what the new makeup of state legislatures and Congress will be. If the composition of these law-making bodies is more receptive to their reforms, they might be able to avoid the initiative process.
Mrs. Wilfore said early information provided by BISC helped block a ballot measure in Washington state that would have placed a cap on state spending. She said "people who funded the signature drive" to get that proposal on the ballot stopped their campaign after BISC disclosed that the tobacco giant Philip Morris was a major contributor and would have benefited by paying lower taxes.
Likewise, Mrs. Wilfore said, BISC prevented an "anti-gay initiative" from getting on the Massachusetts ballot by making the public aware of "fraudulent signature-gathering."
"People were being told the petition they were signing was to prevent human consumption of horse meat," she said.
One of the most contentious issues is on the Florida ballot. It is a constitutional amendment to reduce class size that carries a hefty price tag.
The class-size initiative, opposed by Gov. Jeb Bush, would change Florida's state constitution by requiring that there be no more than 18 students per teacher in kindergarten through third grade, 22 students per teacher through eighth grade and 25 students per teacher in high school.
The state would have until 2010 to meet those goals. But the governor's press office says the amendment would cost nearly $2.2 billion for new teachers and classrooms in the first year alone and that total costs would be about $27 billion. But others, including a state economist, have put the maximum price tag at $12 billion over eight years.
Florida school officials say their classes now average 23 students in kindergarten through fifth grade. They say the largest high school classes average about 28 students per teacher, adding that those figures exceed the national average.
A recent independent Mason-Dixon poll found that nearly two-thirds of Florida voters support the amendment.
Another education measure on the Florida ballot this one supported by the governor would require that a "high quality pre-kindergarten learning opportunity" be available for every 4-year-old in the state.

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