Portland, hard drugs and other experiments in direct democracy

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Less than four years after Oregon voters decided to decriminalize small amounts of hard drugs in the state, legislators have had enough.

A surge in fentanyl overdoses in the state drove state lawmakers to pass a bill aimed at rolling back the experiment, which was meant to signal an end to the decadeslong war on drugs.

Oregon has suffered a spike in overdoses, but there is disagreement among researchers over whether the decriminalization effort or the rise of fentanyl is to blame. The decriminalization effort came quickly, and its goal of pouring money into treatment instead of prosecuting drug crimes barely had time to take hold.

Certainly, the image of people openly using drugs in Oregon’s cities has been jarring, as CNN’s Josh Campbell and Michelle Krupa found. They traveled to Portland after the city’s Democratic mayor and the state’s Democratic governor declared a state of emergency over the fentanyl crisis.

“Essentially what has happened is drugs in Oregon are the same as a traffic ticket,” Portland police Officer David Baer told them. And the fine can be waived if a user calls a hotline and agrees to a medical screening.

Campbell and Krupa talked to people on every side of the complicated issue. Read their full report.

If the newly passed bill is signed into law by Oregon Gov. Tina Kotek – she has not yet said what she will do – possession of small amounts of hard drugs would be punishable by up to six months in jail, although there would be alternatives to the penalty in the form of required treatment.

Enacting the law to undo the voter initiative will, according to Oregon Public Broadcasting, apparently end efforts by at least one group to go further than the re-criminalization bill and could have put the issue back to voters this year.

One way to view Oregon’s retreat from its idealistic effort to decriminalize drug use is that it’s in line with other liberal areas.

Washington state, for example, struggled to pass new drug policy after a state court declared its felony drug possession law unconstitutional in 2021. San Francisco voters last year recalled the city’s liberal district attorney, Chesa Boudin, an advocate for criminal justice reform. The recall was a referendum on rising crime rates and open drug use in the city.

Similarly, Democratic mayors in cities like New York and Chicago are now rethinking well-meaning sanctuary policies after thousands of asylum-seeking migrants were bused to them, without coordination, by Republican Texas Gov. Greg Abbott in an ongoing bit of protest.

But it is also worth looking at the Oregon drug use experiment from the perspective of direct democracy.

Elected representatives, for a variety of reasons, frequently work to undermine ballot initiatives. Perhaps in Oregon, if voters were given the option of rolling back the decriminalization experiment they OK’d in 2020, they would have done so.

That’s what Missouri voters did with regard to the drawing of congressional maps. In 2018, voters there passed a slate of good-government proposals to take some of the politics out of the redistricting process. Two years later, before those proposals fully took effect, Missouri voters undid them with a different initiative that reinserted politics in the process.

In Florida, voters voted overwhelmingly in 2018 to re-enfranchise felons who served out their sentences. Florida’s Republican-controlled state government undermined that sentiment by placing conditions on restoring the right to vote.

In Ohio, Republican lawmakers feared an initiative to enshrine abortion rights in the state’s constitution last November, so they called a special election for August on a separate amendment meant to make it more difficult to amend the state’s constitution. The idea was that a low-turnout, special election would help the anti-abortion rights effort. Voters said, “no thanks” and then went on to protect abortion rights in November.

There are efforts underway in states across the country to make it more difficult to get initiatives placed on ballots, according to the Brennan Center for Justice at the New York University School of Law. The center notes that some strategies include raising the number of signatures required to get an initiative in front of voters or requiring signatures to come from all over the state, although these frequently run into problems in court.

About half the states allow for statewide initiatives, but restrictions put in place by legislators mean the process is really only usable in 17, according to Dane Waters, who has worked on direct democracy efforts both in the US and abroad and is founder of the Initiative & Referendum Institute at the University of Southern California.

“People like representative government most of the time,” Waters told me. “Like 99.9% of the time.”

But there are issues, frequently the ones where legislatures refuse to act or are slow, where voters get out of whack with their representatives.

“Lawmakers try to avoid these issues that may be politically unpalatable for them,” he said.

In red states, that might mean voters end up trying to raise the minimum wage or expand access to Medicaid through the initiative process. In blue states, it could be that voters take on tax issues.

Waters worked on initiatives regarding term limits in the 1990s, and those efforts, which sought to limit how long legislators could serve, led lawmakers to try to limit the initiative process.

Voters may ultimately want to change their minds. In California, Proposition 8 was a referendum that passed in 2008 that banned same-sex marriage with an amendment to the state constitution. That language was superseded when the US Supreme Court ultimately created a nationwide right to marriage. Still, California voters will get the opportunity to remove the language from their constitution with a referendum on Election Day in November.