Saturday, October 24, 2009

Issues 8 and 9: Why Vote on Voting?

I understand why the supporters of Issue 8 don't want City Council to create a regional water district. In fact, I think I'm in their camp, if only because Council would lose control of water rates. And I think there's a strong argument that the creation of a water district should require a charter amendment (and thus a referendum). Water Works is, after all, referenced in the charter (the power to appoint the agency's chief is one of the powers vested in the city manager).

And I understand why the supporters of Issue 9 think building a streetcar is a bad idea.* (I'm generally lukewarm on the streetcar and believe regardless of the passage or failure of Issue 9, the private investment dollars needed to build the streetcar--and forecast by its most ardent proponents--are unlikely to materialize.) I disagree that the decision should be embedded within the City Charter. In a republic, budget appropriations are a matter left to the discretion of the elected legislature. The anti-streetcar sentiment is understandable, even if I don't feel it myself.

But I don't understand why Issues 8 and 9 are written as they are. Why doesn't Issue 8 simply ban the creation of a regional water district or the sale of the water works to a private corporation? (Issue 8 as written, by the way, would not prevent the privatization of Cincinnati's water works, though I've heard no serious person propose such a thing, anyhow.) Why doesn't Issue 9 simply ban the expenditure of funds for a streetcar? Why do the drafters of these ballot issues leave open the possibility that they'll win this time, but lose a referendum in a subsequent election?

After all, the drafters of Issues 8 and 9 certainly know how to write a straightforward, no-loopholes charter amendment. When the NAACP and COAST teamed up to write the anti-red-light amendment a few years ago, it was just that. It didn't call for a separate vote on the cameras; instead, it simply banned their use to impose civil or criminal penalties.

As I was thinking about Issues 8 or 9, it occurred to me that their structure must be relatively unique. Apart from the method to amend a charter or constitution, I cannot think of federal, state, or local constitutional or charter provisions calling for a referendum before a legislature takes a certain action. (With respect to budget appropriations like that implicated in Issue 9, by the way, I believe a state-wide referendum would, in fact, be unconstitutional under state law, as the state constitution explicitly excludes those from the referendum process.) But after a little research, I realized that Issues 8 and 9 do, indeed, have a precedent: Article XI of the City Charter.

What's that? You say you don't know what Article XI is? It's been on the books for over a half-century. It says:
Any ordinance enacted by the Council of the City of Cincinnati which provides for the fluoridation of water processed and distributed by the Cincinnati Water Works must first be approved by a majority of the electors voting on the question at a special or general election before said ordinance shall become effective, and any ordinance to fluoridate the water distributed by the Cincinnati Water Works that may have been enacted before this amendment is adopted shall cease to be effective until approved by a majority of the electors voting on the question at a special or general election.
That's right: back in the 1950's, Cincinnatians vehemently opposed efforts to add fluoride to their drinking water. After the charter was amended to include Article XI, three separate referenda to fluoridate the water failed. It took the intervention of the Ohio EPA--with assistance from the Ohio Supreme Court--to improve Cincinnatians' dental health. (And proving the stubborness of Queen City residents, one report seems to suggest that in the wake of fluoridation, bottled water sales increased dramatically.)

So there you have it. Historical precedent for the two strange (from a structural standpoint) issues on this year's ballot: fluoride-alarmists!

Charter amendments ought to be straightforward and do what they intend. If selling water works to a regional water authority is a bad idea, let's just preclude it. If a streetcar is a bad idea and the only way to prevent one is a charter amendment, let's do that. But let's not waste time voting on whether to vote.

*Yes, I realize Issue 9 is about more than the streetcar. I suspect the bulk of its city-resident supporters, though, are concerned only with the streetcar, and not more minimal outlays for things like the Zoo train or the 3C rail line.

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