Two Ballot-Question Cases to be Decided Today

Because the section of Rhode Island general election ballots containing referenda is supposed to be sent to the printer today, two ballot related court cases are expected to be decided today. The first case, argued in Federal court, centers on whether the no-bid, favor-one-company provision of this year’s version of a Rhode Island casino amendment violates the Federal Constitution. Jim Baron summarizes the central legal issue in today’s Pawtucket Times

As John Killoy, lawyer for the tribe, explained, if the tribe is considered a racial or ethnic group, the proposed amendment would be subject to the “strict scrutiny” standard of its constitutionality, a very high bar to clear. If the tribe is deemed a political entity, then the matter will be decided on a “rational basis” standard – did the state have a rational basis for framing the proposed amendment as it did?
If the tribe is ruled to be a political entity, and not a racial or ethnic group, I hope the court tells people where they can go to make their application to join.
The other case, argued before the state Supreme Court, concerns the issue of the Governor’s power to place non-binding questions on the statewide ballot. The legislature tried to strip that power away from the Governor this session. Governor Carcieri sued to prevent the law from being applied retroactively, i.e. from being applied to questions that had been submitted before the legislature acted. In a decision that surprised everyone, Superior Court Judge Stephen Fortunato ruled that the Governor of Rhode Island has an inherent power to place non-binding questions on the statewide ballot, even in the absence of any specific authorizing legislation. Here’s the counter-argument from the General Assembly’s lawyer, as quoted by Elizabeth Gudrais in the Projo?
“Rhode Island operates by representative democracy, not participatory democracy,” John A. “Terry” MacFadyen wrote in the House and Senate brief.
MacFadyen quoted James Madison, saying that when Rhode Island residents approved the state Constitution they chose a republican form of government “premised upon the fact that the people cannot speak in mass, and the right to choose a representative is every citizens’ portion of sovereign power.”
In other words, if the government doesn’t give its express permission for something and lay down a procedure, then that something is forbidden! I don’t think Mr. MacFadyen gets the principle of limited government. Or maybe his clients just pay him to eviscerate it. Leave it to a lawyer for the General Assembly to make Judge Fortunato’s unusually expansive view of inherent powers seem reasonable by comparison.

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