Time to Look at Anti-Law Lawmaking?

As the Orange County Register observed, Californians have a lot of decisions to make on Election Day. In addition to picking “public servants,” voters will confront 17 ballot measures, weighing in on everything from marijuana to the death penalty, cigarette taxes to pornography.

Direct democracy has fans and critics. And the debate is a very old one — James Madison thought that “the public voice, pronounced by the representatives of the people, will be more consonant to the public good than if pronounced by the people themselves.”

In New Mexico, it’s often said, ballot initiatives aren’t allowed. While the Land of Enchantment has referendum, whereby voters adopt or nix measures put before them by the legislature, citizens are not permitted to gather signatures to enact legislation and/or add provisions to the state’s constitution.

That’s true. But often forgotten is one tiny exception, exercised just twice, in 1950 and 1964. As Governing New Mexico explains, voters have a “limited ability to disapprove legislation enacted by the legislature.” The process, “a compromise concession to progressives in the 1910 constitutional convention,” allows the repeal of laws “enacted at the last preceding session of the legislature.” Unfortunately, the limitations are broad and deep. Petition signatures for anti-lawmaking must top 10 percent of all votes cast in the last general election, and be gathered in three-fourths of the state’s counties. Appropriations are exempt, as are “laws providing for the preservation of the public peace, health or safety,” “the maintenance of the public schools or state institutions,” and “local or special laws.” Even if a huge majority of votes are cast in favor of repeal, unless those votes total at least 40 percent of all votes cast in the election, the overturn is invalid.

“Power to the people”? In New Mexico, not so much.

Still, as poor public-policy choices continue to emanate from Santa Fe, it’s something for New Mexico’s pro-capitalism, limited-government community to explore. Repeals of regulatory laws, it would appear, are legitimate ways to use the constitutionally enabled power to “disapprove, suspend and annul.” Who’s for giving it a shot?