Category Archives: Ballot Referendas and Initiatives

Taking Public Policy out of the Cathedral and into the Bazaar

In a previous post, I said we need to Innovate as well as Advocate.  How?  Here is one idea.

Cathedral and Bazaar by Carmelita Levin 

For the non-engineers reading this, a quick explanation: Once upon a time, software was created by coding wizards in ivory towers, who would carefully prepare major software releases, having only trained testers examine them, before with some small fanfare allowing users to purchase the results. As you might imagine, software releases tended to suffer from unexpected bugs when running in the real world with real users pounding on them.

The Open Source movement changed all that in the software world, and the classic essay on the subject is called The Cathedral and the Bazaar, by Eric Raymond. The essay was inspired by the success of the Linux operating system, the development of which “seemed to resemble a great babbling bazaar of differing agendas and approaches…out of which a coherent and stable system could seemingly emerge only by a succession of miracles” - and yet which became the most widely used server platform on the Internet.

Why can’t we do the same with Public Policy?  And what would that look like?

Policies and laws are documents. Unlike software, we can pretty much all read and understand them. But we usually do not get to see them until they are in nearly-final state and making their way through the legislative process.  Sometimes this is by design – in the worst cases, one side (need I say which?) will assemble an extremely unpopular set of laws, perhaps a budget that strips money from schools, or one that removes protections from large groups of people, and unveil it only immediately before the vote that makes it law.  This is pretty much the exact opposite of a healthy development cycle.

The process of actually writing laws and policy occurs mainly out of public view.  ALEC, the notorious engine for churning out legislation advancing corporate interests, holds meetings with heavy security and bars journalists from the entire hotel where they are held.  Progressive think tanks like SIX have a much more inclusive and open process, but by being explicitly progressive from the outset, also sometimes turn out laws that have had only one-sided input.

Raymond’s key takeaway, that “Given enough eyes, all bugs are shallow“, that more users having access earlier in the process produces better results, transformed the process of software development. Would exposing policy documents during the process of development have the potential to do the same for public policy?

But the trolls!  How to have a productive discussion and craft a policy while fending off constant attacks from those who hate the fundamental values behind it?

A bazaar is not a free-for-all, though it may seem so to an outsider.  Engineering culture has strong norms, that newcomers are often exposed to in a sort of trial-by-fire.  Fundamentally, these boil down to the respect of others’ time and attention, the understanding that work talks, and that if you don’t like how someone is doing things, you are free to branch off it and create something of your own.  Open source software in particular is ‘copylefted’, meaning that it is free for anyone to copy and change it as long as the result is also free.

Thus, perhaps an Open Public Policy could have a structure, one that expresses the values behind it.  Those who share those values, are invited to help craft the details. Those with different values, should create a different policy entirely, and let the two compete.

New standards in software are usually first expressed in a paper entitled Request for Comments.  So in that spirit, here is

Request for Comments 1: A Structure for Open Public Policy

However, another norm is never to have a solution in search of a problem.  Linus Torvalds, creator of the Linux operating system, famously said,

“Nobody should start to undertake a large project. You start with a small trivial project, and you should never expect it to get large. If you do, you’ll just overdesign and generally think it is more important than it likely is at that stage. Or worse, you might be scared away by the sheer size of the work you envision. So start small, and think about the details. Don’t think about some big picture and fancy design. If it doesn’t solve some fairly immediate need, it’s almost certainly over-designed. And don’t expect people to jump in and help you. That’s not how these things work. You need to get something half-way useful first, and then others will say “hey, that almost works for me”, and they’ll get involved in the project.

And so, while recognizing the big picture lets see if we can apply this technique to a concrete problem.  Since these will be open to comments, even presenting something that might be a dumb idea is not so bad – someone will point out why it is dumb, and how it should be fixed, before it becomes law and hurts anyone.  So I’ll present here some probably dumb ideas for fixing problems, with the expectation that the community will point out the flaws, and either trash the idea entirely or perhaps save it by fixing them.  And in particular, I will request reviews from those my ideas are most likely to offend or upset.

RFC 2: Homeless on Beautiful Streets, an idea for San Francisco

RFC 3: Community Service for Citizenship (TBD)

RFC 4: Responsible Gun Ownership (TBD)

The RFC’s with supporting essays will be published in this new Open Public Policy channel.  Readers are welcome to submit, whether your own ideas, policy that is from a well-known organization or existing model law.

Arizona Supreme Court sides with GOP voter suppression of citizens initiatives

While you were distracted by the long Thanksgiving Day holiday weekend, the Arizona Supreme Court finally issued its opinion in the “Outlaw Dirty Money” initiative case. Arizona Supreme Court ruling supports legal tactic used to keep initiatives off ballot:

The Arizona Supreme Court has upheld the constitutionality of a legal tactic used by those seeking to keep voter-proposed laws off the ballot. [“The only issues we must decide are the constitutionality of §19-118(C) and the propriety of the trial court’s exclusion of the non-appearing subpoenaed circulators’ petition signatures.”]

The Court’s opinion is narrowly tailored. “As our decision does not turn on whether the Committee strictly complied with § 19-118(C), we need not determine the constitutionality of the strict compliance requirement of § 19-102.01(A).” The “strict compliance” constitutional challenge is left to another day.

In a unanimous ruling Wednesday, the justices reaffirmed the right of people to craft initiatives and seek to have them approved.

“And we are reluctant to impede such civic efforts,” they said.

But Justice John Lopez, writing for the court, said there is nothing unduly burdensome about requiring paid circulators to register and provide an address where they can be subpoenaed. Lopez said throwing out the signatures collected by those who don’t show up in court does not impair the constitutional rights of people to propose their own laws.

This is fundamentally anti-democratic, and wrongly decided. The valid signatures of voters who legally signed the petition in good faith are disenfranchised if the circulator cannot be located or fails to appear in court, for any reason. This legal tactic invalidates the otherwise valid signatures of voters given in good faith through no fault of their own.

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If you want to put a citizens initiative on the 2020 ballot, you had better file it by early 2019

Voting rights and electoral issues were on the ballot in 13 states, and voters overwhelmingly supported expanding access to the ballot box. Voting Rights Were The Biggest Winner In The Elections:

One clear winner emerged from last week’s elections: voting.

Voting rights and electoral issues were on the ballot in 13 states, and in almost all of them, voters overwhelmingly supported initiatives that expand access to the ballot box and make the right to vote easier to exercise.

In Colorado, Michigan, and Missouri, ballot initiatives aimed at replacing gerrymandering — the redrawing of legislative districts by political incumbents to strengthen their party’s electoral representation — with nonpartisan methods of redistricting all received more than 60% of the vote. Colorado’s proposal to allow independent commissions to handle redistricting garnered over 70%.

Marylanders turned out in favor of same-day voter registration. Nevadans ushered in “motor voter” automatic registration for those who visit the Department of Motor Vehicles. Floridians, meanwhile, restored the right to vote for 1.4 million released felons(excluding those convicted of murder or sex crimes).

Perhaps the most significant victory for voting rights came in Michigan, where two-thirds of voters adopted Proposal 3. Among other provisions, the new law guarantees same-day voter registration, automatic registration at the DMV, and no-excuse absentee voting. Voting has never been easier in one America’s most important swing states.

This bodes well for the millions of Americans who have expressed a newfound interest in democratic participation in recent years.

In Arizona, the “dark money” forces of the Arizona Chamber of Commerce and Industry and the “Kochtopus” network blocked voters from even considering the Outlaw Dirty Money initiative. Anti-‘dirty money’ initiative knocked off ballot in Arizona, Supreme Court rules.

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What the Arizona GOP fears most: becoming California

Republican California governor Pete Wilson in 1994 pushed hard for California Proposition 187 which prohibited illegal immigrants from using non-emergency health care, public education, and other services in the State of California.

Three days after Proposition 187 was approved by voters, on November 11, federal district court judge Matthew Byrne issued a temporary injunction against the state of California, forbidding the enforcement of Prop 187. Federal judge Marianna Pfaelzer then issued a permanent injunction, which California did not appeal and it remains in effect.

This was the defining moment when California began to shift from the state that gave us Richard Nixon and Ronald Reagan into a Democratic stronghold. Proposition 187 Turned California Blue.

Twenty-four years later, the death of the California GOP is near complete. POLITICO reports, RIP, California GOP: Republicans lash out after midterm election debacle:

In the wake of a near-political annihilation in California that has left even longtime conservative stronghold Orange County bereft of a single Republican in the House of Representatives, a growing chorus of GOP loyalists here say there’s only one hope for reviving the flatlining party: Blow it up and start again from scratch.

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A reform agenda for voting rights

Despite all the horror stories about “red state” voter suppression efforts in this election, there was also some good news for voting rights in the states as well. The New York Times reports, Before the Fights Over Recounts: An Election Day Vote on Voting:

In Tuesday’s elections [there was] a wave of actions aimed at making voting easier and fairer that is an often-overlooked strain in the nation’s voting wars.

Floridians extended voting rights to 1.4 million convicted felons. Maryland, Nevada and Michigan were among states that made it easier to register and vote.

From the Brennan Center for Justice:

Automatic Voter Registration (AVR) is gaining momentum across the country. Currently fifteen states and D.C. have approved the policy, meaning that over a third of Americans live in a jurisdiction that has either passed or implemented AVR. A brief history of AVR’s legislative victories and each state’s AVR implementation date can be found here. This year alone, twenty states have introduced legislation to implement or expand automatic registration, and an additional eight states had bills carry over from the 2017 legislative session. A full breakdown of these bills, as well as those introduced in 2015, 2016, and 2017, is available here.

Where AVR Has Passed 11-8-18

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