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Commission On Initiated Measures Is Unconstitutional

Commission On Initiated Measures Is Unconstitutional By Its Very Existence

If the commission wants to follow the constitution, here are three suggestions.

This legislative session, a bill was passed that is designed to “fix” the initiated measures process in North Dakota. While there are some things that can be done to that end, the overwhelming sense is that nothing good can come of this commission given the legislature’s track-record of attempting to clamp down on the initiated measure process.

During the session, the North Dakota Watchdog Network strongly opposed this bill and the commission it has created.

Article III Section 1 of the state constitution explicitly states:

While the legislative power of this state shall be vested in a legislative assembly consisting of a senate and a house of representatives, the people reserve the power to propose and enact laws by the initiative, including the call for a constitutional convention; to approve or reject legislative Acts, or parts thereof, by the referendum; to propose and adopt constitutional amendments by the initiative; and to recall certain elected officials. This article is self-executing and all of its provisions are mandatory. Laws may be enacted to facilitate and safeguard, but not to hamper, restrict, or impair these powers.

Every law and constitutional amendment that the legislature has passed has only worked to restrict the process for citizens. So, it is only reasonable that a legislative commission on the issue would go the same direction.

Article III of the constitution is entitled “Powers Reserved To The People” – it does not say “unless the legislature objects”.

The existence of this commission is unconstitutional, and if it fulfills its mission to propose legislature in the next session that does anything but “facilitate and safeguard” the process, that will be a direct attack on the constitution.

What Can The Commission Do That Is Constitutional?

This commission should consider a few options that would truly “facilitate and safeguard” the initiated measure process:

  1. Require that all changes to Article III and the initiated measure process originate via petition of the public rather than from the legislature.

    Here is how such language would look: “All constitutional, statutory, and administrative revisions to the initiated measure, recall, and referendum process shall originate within the petitioning power of people. The legislative assembly shall not be vested with the power to place any constitutional measures on any ballot altering the provisions of Article III of this constitution. All statutory regulations and administrative rules related to the initiated measure, recall, and referendum process must conform to the literal and plain reading of Article III of this constitution.”

    By requiring that changes to the I&R (Initiative and Referendum) original with a petition, this allows legislators as citizens exercise their rights to change the process rather than exerting top-down power over the process.

  2. Allow initiative committees to access Legislative Council staff resources directly, without using a legislator as a middle man.

    Once a petition effort gets their 25 sponsoring committee members, they should have direct access to legislative council help to draft and format their petition. This will allow efforts to be at least as good as the first draft efforts of legislators themselves.

  3. Allow citizen-originate advisory votes with a lower threshold to help guide legislators in their law making efforts.

    Too often we hear from legislators “why didn’t the citizens come to the legislature first” with an issue (as if citizens need permission).

    Currently, it takes 4% of the population to place a constitutional measure on the ballot, and 2% of the population to place a statutory law proposal on the ballot.

    This commission could consider creating a 3rd level of petition – a Citizen’s Advisory Vote – which does not carry the weight of law, but only takes, say, 5,000 signatures to place on the ballot.

    Things like the Sunday Blue Laws, Pharmacy Ownership, Medical Marijuana, or a host of other issues could be placed on the ballot to help legislators realize where the public is on these issues.

    If legislatures want to have more control of the laws, this will allow them to know better where the public wants them to go.

    These are only three ideas that have floated on how to follow the constitution.

    Any suggestions by this commission to “hamper, restrict, or impair” the process will be an attack on the state constitution and on the people themselves.

    This commission would be wise to avoid that.

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