Looking at 2020 Initiative Results: A Pretty Good Day for Liberty

The presidential contest may not be officially decided for days yet, but lower down on the ballot, it looks like a very good election for libertarians and other supporters of limited government.

The War on Drugs took a major hit. In fact, every initiative to legalize drugs passed, including proposals to legalize medical marijuana in Mississippi, recreational marijuana in Arizona, Montana, New Jersey, and South Dakota, to decriminalize hallucinogenic plants in Washington, DC, as well as a far‐​reaching measure to decriminalize all drugs – including cocaine, heroin, and LSD – in Oregon.

Voters also preferred lower income tax rates, with Coloradans voting to decrease the state income tax, and even Illinois voters rejected a graduated income tax.

There were victories on several civil liberties fronts as well. Michigan voters approved Proposal 2, amending the state constitution to protect electronic data and communications in the same way the law protects our homes and papers from unreasonable search and seizure. In Alabama, voters removed racist language from their state constitution, while in Mississippi, voters approved a new state flag without Confederate symbolism, and Nevada voters removed a ban on same‐​sex marriage. These later changes were largely symbolic, of course, but symbols matter.

And, to top it off, the first Libertarian was elected to a state legislature in a generation, with Marshall Burt in Wyoming.

As usual, California had several high profile ballot measures. Cato’s Project on Poverty and Inequality in California was watching several of them closely.

Possibly the biggest question put to California voters, Prop. 15, would have changed property tax rules for commercial properties, resulting in an overall tax increase of $7.5–12 billion. At the time of writing, the outcome of Prop. 15 is probably too close to call, in keeping with tight polling ahead of the election.

Ahead of the election, we were looking closely at Prop. 22, which would make significant changes to 2019’s Assembly Bill 5. AB 5 would have required employers in many industries to classify workers as employees, rather than independent contractors, making them subject to additional requirements including mandated benefits and minimum wages. It would be an oversimplification to reduce AB 5 to a battle over app‐​based rideshare companies like Uber and Lyft – the law affects workers in numerous other industries, from yoga teachers to newspaper deliverers – but the rideshare industry played a significant part in the AB 5 debate from the beginning. Prop. 22 looks set to pass by a relatively wide margin, and will exempt rideshare companies from AB 5’s mandates. There are two main takeaways from this: first, voters have shown that they like the new services that tech companies are providing, and don’t want new regulations to prevent them from accessing those services. Admittedly, there’s some level of ambiguity here – California’s Prop. 24 looks set to institute new data regulations on tech companies – but the calculus on Prop 22 was simple: if it passed, rideshare companies would dramatically pull back, if not leave entirely, from California. Second, now that numerous industries have received carve‐​outs from AB 5, whether at the ballot box (as rideshare did) or in the legislature (like musicians did) or in the original bill (like lawyers did), California’s legislators should go back to the drawing board. Retroactively installing loopholes in a law encourages the worst excesses of crony capitalism, even if the original law was a bad one. There’s a path forward on rules for independent contractors, but it requires legislators to admit that they got it wrong – and got on the wrong side of voters – the first time around.

Two other initiatives we were watching failed by quite large margins. Prop. 20 and Prop. 21 were both repeats of earlier ballot initiatives: Prop. 20 would have rolled back the criminal justice reforms enacted by 2014’s Prop. 47 and 2016’s Prop. 57. Props. 47 and 57 were major reforms to the criminal justice system, and contributed to a significant enough reduction in the number of incarcerated people that California is in a position to close two state prisons in the near future. Prop. 21 is a slightly‐​modified version of 2018’s failed Prop. 10, and would have allowed local governments much more authority to enact rent control policies. So far, it looks like Prop. 21 will fail by a narrower margin than Prop. 10 did, which could mean that voters are either more concerned about rent increases now, or that they were receptive to some of the changes in the initiative’s drafting. Either way, California voters have held the door firmly shut to new local rent control policies, just a year after the legislature enacted a statewide cap on rent increases.

One last proposition is worth discussing as well: Prop. 25 was a referendum on SB 10, which would have eliminated cash bail and replaced it with a risk assessment system. It looks like Prop. 25 – that is to say, SB 10 – has failed, and California’s bail system will remain as‐​is for now. It’s worth noting that criminal justice reformers were split on the changes. Some argued that the new risk‐​assessment system may have some of the same problems as the existing system. The law wasn’t very specific about how to determine who is released or held in jail before a trial, and some reformers were concerned that those determinations would reflect racial biases. Given that SB 10 managed to pass in the first place, it’s clear that there’s desire for reform, but legislators should take this as a time to start over, and perhaps more clearly and intentionally design a new system that takes into account lessons learned from other states, instead of punting hard questions to the executive or judicial branches.

The major upshot of Tuesday’s results in California is that the legislature may return to several major issues next year, including AB 5 and cash bail reform. The defeat of rent control shows what voters don’t want, but housing is still clearly a pressing issue for the state. It’s also clear that our work on Cato’s California Project is cut out for us: as legislators and local officials continue to wrestle with these important issues, they will need a diverse set of well‐​considered perspectives, Cato’s California Project will contribute to that conversation.