by Jacob T. Levy

The Democratic enthusiast but non-politics-junkie with whom I watched the returns last night at one point extrapolated bad news for Democrats from a conservative referendum win; I think it was the awful Virginia amendment banning civil unions and domestic partnerships, but it might have been the Michigan Civil Rights Initiative. In any event, it soon becamse clear that voters were capable of voting for a conservative referendum question and still voting for Democratic candidates. This prompted the following thought. The right's embrace of referenda dates at least to the property tax revolts of the late 1970s--when attempts by voters had to go around the elites in both parties to get what they wanted. There are still some referenda like that--the Michigan Civil Rights Initiative, like its California predecessor, came from outside the party structure and was viewed warily at best by Republican elites. Conservative Republicans then played catch-up, trying to harness the energy of the referendum-supporting groups to their own cause, and sometimes moving closer to voters' preferences in order to do it. Somewhere along the way, someone noticed that hot-button referendum questions could mobilize turnout and excite parts of the electorate who might otherwise not much care about a given election. They could also focus the minds of swing voters on some issues rather than others. Culturally conservative and moderate working-class white voters were thought to be swingable in this way--a refeerndum on a cultural question might not only get them to the polls but have an effect on their choices of candidates. And so a lot of referendum questions started coming from closer to the Republican party structure. I think something similar later started to happen on the Democratic side, with environmental and educational questions. But that strategy ought to have limits, and we may have seen some of those limits last night. After all, many states are now immunized against gay marriage cooties with about five layers of legislative and constitutional latex--DOMA, a state legislative mini-DOMA, a constitutional amendment declaring marriage to be between a man and a woman, a constitutional amendment declaring that state judges can't recognize out-of-state gay marriages, a constitutional amendment insisting that gay couples not be able to place stories on the wedding page of the newspaper's society section, and so on. (I exaggerate, if only barely.) At some point, voters ought to start to feel safe from the threat of gay marriage, which frees them up to cast their electoral ballots on other questions. More generally: When some policy domains are constitutionalized or legislated by referendum, a rational voter will discount those policy domains in choosing the representatives who will be making other decisions. Get enough culture-war constitutional amendments passed by referendum, and those Reagan Democrats might feel safe voting Democratic again, knowing that the legisltaure will be hemmed in, e.g. to mainly fiscal questions about which their policy preferences are more-Democratic. There is, after all, no straight-ticket option that includes both electoral contests and referendum questions. Voters can, and know that they can split a ballot between a referendum question vote and a candidate who took the opposite position on that question. If they feel confident that their side will win the question, it might make a lot of sense to split the ballot that way. And that possibility might mean that it doesn't make long-term sense for a party to base its turnout-mobilization strategy on referenda.