THE BLOG

Recent Presidential Elections: Better Juries, Harder Ballot Initiatives

02/21/2013 07:56 am 07:56:52 | Updated Apr 23, 2013

The election and reelection of President Barack Obama probably have even more significance than you realize. I generally take the longer view and think Supreme Court nominations are the most significant actions U.S. presidents take, but I'm not referring to anything Obama has already done or will do in the future. I mean the election itself; it made democracy better--maybe.

Trial by jury is among the most important features of the U.S. legal system. The Sixth Amendment to the U.S. Constitution reads, in part, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . ." We also have a guaranteed right to trial by jury in many civil cases. In addition to having the right of a jury trial, citizens also have the right to engage in what has been called a "central mechanism for direct democracy in America." Initiative, when citizens put constitutional provisions or statutes on the ballot, and referendum, which lets the public vote on laws already passed, are both features that allow for the public to exercise democratic power, rather than elect others to represent their interests.

The federal courts draw juries, in large part, from voter registrations. The elections of President Obama drew the largest electorate ever (per capita). Racial minorities turned out in record numbers, notably changing the shape of political views on immigration reform.

Combine high minority turnout and jury selection, and you get more minority venirepeople (people who are called for jury duty but not necessarily on a jury.) Voters are restricted to casting votes in their districts, so drawing more minorities makes a more representative cross-section of a district. This is a good thing: more representative juries are more likely to be broadly impartial, as the Constitution requires. And if not, at least the juries are more representative of their districts, and the whole point of trial by jury is to be judged by one's peers.

But the consequences of voter turnout don't stop there. Increasing voter turnout makes it harder for the populace to take advantage of initiative and referendum, because in many jurisdictions the number of signatures cast must be a certain percentage of the voter turnout in a prior election: in Florida 8% of the turnout for the most recent presidential election. What that 8% equates to has gotten bigger, and in the past the past two elections, a lot bigger. Based on the 2000 election, in Florida, the magic number was 488,722 488,722. After 2008, the number was 668, 108 and after 2012, at least 677,934 (official numbers haven't been released yet). Whether the greater number is a good thing or not is subjective: some want fewer amendments to the constitution, so a larger number is better because amendments are harder to pass. Some want greater ability for citizens to make changes, and many states have far more ballot measures placed by their legislatures, so some people might want less turnout, at least for the purposes of this discussion. And some, like those who are appalled by the provision banning pig gestation crates in the Florida constitution want less ability for such changes. The change might be good, or it might be bad, but it's definitely change.

Consider this example: Governor Rick Scott of Florida took office on January 4, 2011. A little over a month later, he blocked federal funds for high-speed rail in Tampa Bay. A month later, in a Public Policy Polling poll, Governor Scott's approval rating was net -23 and worse than any other sitting governors. There was an outcry for his recall. However, Florida does not have recall, so the first step would be to add it to the Florida Constitution by initiative. For direct initiative, that would require 189,212 signatures more in now than less than a decade ago. It will also take more votes to allow marriage equality, and if it happened a decade later there might not be a "pregnant pigs" provision in the constitution. Having a nonwhite candidate had wider ripples than we may realize.