- - Wednesday, December 9, 2020

Editor’s note: This is the latest in a series “To the Republic: Rediscovering the Constitution.” Click HERE to read the series.

As we head toward the Electoral College’s vote on Dec. 14, it would be useful to think about the risks posed by direct democracy.

Alexis de Tocqueville, the French political philosopher who traveled through the U.S. in 1831 and 1832, warned that the tyranny of the majority was the most significant threat that the young nation faced.

Opposite to today’s mainstream media opinion, de Tocqueville contended, “The main evil of the present democratic institutions of the United States does not arise from their weakness, but from their overpowering strength.”

Today, this tyranny of the majority manifests itself most purely in the election ballot measure system used by 26 states, including California. These ballot questions generally allow a simple majority of votes — which may only reflect a temporary condition — to change the law or even state constitutions, abrogating the rights of a minority for the long-term.

While some states, such as Florida, require a 60% threshold for passage, the pathology and the risk remain the same.

For example, in the 2020 election, 52% of Colorado voters chose to transfer their state’s electoral college votes for president to the national popular vote winner. In Arizona, 52% of voters decided to raise taxes by 78% on residents earning at least $250,000 a year. Needless to say, fewer than 52% of Arizonans earn $250,000 annually.

These end-runs around the deliberate, consensus-building legislative process are what de Tocqueville and the American founders feared.

Even ballot measure victories that confirm or preserve liberty likely will be only temporary. On Election Day this year, California voters narrowly defeated Proposition 15, which would have dramatically raised taxes on businesses, including small ones, at the worst possible time. The win, however, will likely amount to little more than a stay of execution. Tax-increase proponents will almost certainly be back with another referendum in 2022 to try their luck again.

If that fails, they will be back again and again.

Given how close the results were this year, it seems like only a matter of time before they succeed.

“Majority rules,” cloaked in popular appeals for democracy, is a core tenet of the left’s governing philosophy. But should a simple majority be enough to tax away the property of a minority of the population?

Pure democracy in action is little more than two hungry sharks and a surfer deciding what to do in the water (ask the Arizonans). At what point are individual rights to property and liberty more important than the will of the majority?

Many of the most authoritarian regimes in history, including the Nazis, were democratically elected. Like de Tocqueville, the American founders recognized the potential that pure democracy would foster populist passions and violate inalienable rights.

As a result, they created a republic. They made changing the Constitution exceedingly challenging, requiring a two-thirds majority in both Houses of Congress or the support of three-quarters of state legislatures.

Yet in states such as California, the state constitution can change with just 50% plus one of the votes.

Even the “majority rules” justification for ballot measures fails because the winning side on ballot measures rarely constitutes a majority of a state’s voters. California’s Proposition 15 received about 8.2 million “Yes” votes and 8.9 million “No” votes. Even if it received the bare majority of votes needed to pass, that number would still represent only 35% — just over one-third — of the state’s 25.1 million eligible voters.

Majority rule in theory is almost always minority rule in practice.

This minority rule is especially problematic when you consider that – at least in California — a small number of government union bosses are initiating and funding many of these ballot efforts that infringe on liberties. Two union giants, the California Teachers Association and the Service Employees International Union, spent a combined $30 million to try to pass Proposition 15.

In other places, democracy is eroded by the very rich. In California this cycle, Mark Zuckerberg chipped in $12 million to pass Proposition 15.

Changing the ballot measure threshold to successfully pass tax hikes to a two-thirds majority or even 50% of all eligible voters seem like basic protections from the tyranny of the well-funded or otherwise energized minority.

Such reforms sound like great ideas for future ballot measures.

To pass, they would need the votes of only about one-third of eligible voters.

⦁ Jordan Bruneau is with the California Policy Center.

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