Let’s Face It: Marsy’s Law Is a Mess, and Initiated Measures Are Dumb


Earlier this week I wrote about law enforcement authorities in South Dakota deciding that they can no longer report the locations of crimes because of amendments to their state constitution from Marsy’s Law.

That state’s voters cast their ballots for that law the same as North Dakota’s voters.

A further complication is that, apparently, the law is also complicating access to traffic crash reports. “I work for a large regional insurance company,” a SAB reader from the more southerly Dakota wrote me earlier this week. “We handle dozens of auto claims on a daily basis. Late last week, when attempting to get a police report on an auto accident, the attached notice was given.”

This is what he sent me:


These complications are beginning to manifest themselves in North Dakota as well. As Patrick Springer reports today, law enforcement in the Fargo area may also crack down on what information on crime is available to the public.

“We are having discussions internally with the city attorney to try to figure out what that means,” Joe Anderson, the Deputy Chief of the Fargo Police Department, told Springer. “I would interpret it much like South Dakota has.”

I reached out to the North Dakota Department of Transportation about crash reports and they said they’re reviewing the law as well. “At this time we are reviewing the law and how it will affect the Department of Transportation,” DOT spokeswoman Jamie Olson told me. “Nothing has changed in our crash report process at this time.”

If North Dakota ends up interpreting Marsy’s Law the same way South Dakota has, this is going to be a mess.

I was an opponent of the Marsy’s Law measure – I did and still do think it’s very poor public policy – but these difficulties in implementing the very complicated constitutional amendment make a larger point.

How utterly stupid it is to legislate at the ballot box.

Marsy’s Law is hardly the only 2016 ballot measure giving state officials fits when it comes to implementation. The medicinal marijuana measure is also causing major headaches¬†for those tasked with implementing the policy.

Sure, the voters cast their ballots for these things, but they probably didn’t consider the real-world implications for how the law would be administered and enforced, particularly in light of other laws.

There should be checks and balances in all forms of lawmaking. When our elected leaders want to make policy they must pass a law through committees and floor votes in two legislative chambers, and then it must survive veto scrutiny by the governor. That process also has built into it a requirement for public testimony, and plentiful opportunity for amendment.

But the initiated measure process is an all-or-nothing crap shoot. Deep-pocketed interests can buy their way onto the ballot, bamboozle the public with a slick marketing campaign, and get their issue into state law.

Over the next year or so, as state officials try to make sense of the travesty that is Marsy’s Law, North Dakotans are going to get a lesson in why initiated measures are a bad way to make policy.