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Or does it? A worrying new logic contends that if your local government has been preempted on an issue—like minimum wage—then you (a local citizen) cannot even vote on a related local ballot initiative. (Photo: file)

Preempting Democracy: What's Not Being Voted on This November Is Sinister

From minimum wage increases to anti-fracking measures, the right of local citizens to vote on key issues is now in the crosshairs

Simon Davis-Cohen

State preemption has reached an infamous status. People are outraged by state legislatures’ claim of unilateral authority to prohibit local governments from raising the minimum wage, curbing fossil fuel extraction or otherwise increasing state protections for workers, the environment and even tenants. It’s an accelerating issue; state preemption bills are broadening. For example, in Michigan and elsewhere the preemption of local minimum wage hikes is being expanded to include all law making that regulates employer-employee relations. And now, in the past few months, local citizens’ very right to vote on the issues has been caught in the crosshairs.

Those spearheading this wave of state preemption—often linked to the equally infamous American Legislative Exchange Council (ALEC)—are escalating their tactics. August and September 2015 court cases in Ohio and Missouri respectively, have seen (successful and unsuccessful) arguments to expand the reach of preemption. The new logic contends that if your local government has been preempted on an issue—like minimum wage—then you (a local citizen) cannot even vote on a related local ballot initiative. Meaning, if local citizens gather signatures to qualify a minimum wage ballot initiative, but their state legislature preempts localities from raising the minimum wage, then the ballot measure should not be allowed a vote.

In September, the Missouri legislature overrode Governor Jay Nixon’s veto of a minimum wage preemption bill. Minimum wage preemption was put into immediate effect. At the time, Kansas City was scheduled to vote on a citizens’ initiative to raise its minimum wage to $15/hour, this November. But after the veto override, the city attorney appealed the county circuit court to remove the qualified initiative from the ballot. On September 22, Jackson County presiding judge Justine Del Muro agreed to remove the citizens’ initiative from the ballot. The stated reason: state preemption.

In Ohio, after receiving an August appeal to remove three qualified county fracking ban initiatives from this November’s ballot, Secretary of State Jon Husted claimed, “unfettered authority” in a decision to delete the initiatives from their respective ballots. His stated justification: the state’s preemption of local fracking laws.

Petitioners behind the Medina, Fulton and Athens county initiatives appealed. And in September the Ohio Supreme Court softened Husted’s language—preventing the preemption-based precedent from being established—but nonetheless decided to keep the local initiatives off the ballot, due to an unrelated technicality. Though local activists dodged a bullet, Husted’s argument, which mirrors the Kansas City decision, is cause for concern.

We should not take this emerging logic lightly.

For one, we should be weary of any logic that removes voting from the democratic decision-making process and which contends that there are certain (preempted) issues that local citizens are not allowed to vote on. The precedent is dangerous.

The denial of the vote also has tactical significance.

Being able to defy state preemption by way of local votes is indispensable for the movements working to overturn unjust forms of preemption. Gathering signatures, mobilizing voters, and voting—even if the local laws are doomed to be overturned by the courts—are critical organizing tools. Local law making that asserts democratic rights to raise the minimum wage or protect ecosystems inserts thousands of people into the conversation. And when or if the laws are overturned, thousands of people are then enraged.

Challenging state preemption in this way makes the conflict between local citizens and the state explicit, and illuminates the workings of our legal system. The votes clarify and escalate the fight.

The removal of Kansas City’s minimum wage hike and the three Ohio county fracking bans from this November’s ballot has had a silencing effect.

This is troubling, of course. But it may present an opportunity.

As state preemption spreads and matures, movements to increase workers’ rights and environmental protections find themselves challenging the same structures of law that allow state governments to, at a whim, remove basic self-governing powers and tools of resistance from localities. Fighting against this preemption and defending the right to vote on these critical issues could be the concrete political tactic to unify these complimentary—local—movements.


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Simon Davis-Cohen is a writer and filmmaker focusing on political rights, municipal activism and mass incarceration. He works on research and communications for the Community Environmental Legal Defense Fund and edits the Ear to the Ground newsletter. Follow him on Twitter: @SimonDavisCohen

Simon Davis-Cohen

 Simon Davis-Cohen is a writer and filmmaker focusing on political rights, municipal activism and mass incarceration. He works on research and communications for the Community Environmental Legal Defense Fund and edits the Ear to the Ground newsletter. Follow him on Twitter: @SimonDavisCohen

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