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Mike Jacobs: Names, issues change – not politics

This is Election Day, and while each of us may anticipate different results, we'll likely agree about the best feature of the day: silence. The silence at the end of a campaign is always welcome, of course, and perhaps the more so after a noisy and divisive campaign.

This year's silence is especially precious because it is likely to be brief. Just as we Americans now live in a continuous news cycle, we also live in a continuous campaign, and this is true not only at the national level.

However great the temptation, therefore, this writer will forego discussing today's election, other than to predict that issues on the North Dakota ballot likely will be issues again whether or not initiated measures are passed to establish an ethics commission and to make marijuana legal.

The first is the subject of Measure One, which would embed an ethics commission in the state constitution. Measure Three would legalize recreational marijuana use and clear marijuana related convictions from criminal records.

Their simultaneous appearance on the ballot is not the only thing these measures have in common. Both face a phalanx of opposition from the state's political and legal establishment. Still there is a sense of inevitability about both of the ideas, if not of these specific measures. The establishment of a century ago fought the reforms that made these measures possible, amendments that added the power of initiative and referendum to the state constitution. Initially constitutional amendments proposed by petitions required approval by the Legislature before voters could act on them.

Direct election of senators was one of the reforms that progressives demanded, and they ran into a hurdle entrenched in the U.S. Constitution, which at the time stipulated that state legislatures would choose senators. North Dakotans found an ingenious way around the hurdle, an amendment to the state constitution that required lawmakers to choose the winner of a primary election. The law was challenged, of course, but not before voters rejected a sitting senator who had won three terms when legislators did the choosing. By adopting the so-called "Oregon plan," North Dakotans were among the first Americans to vote for U.S. senators.

The political establishment was friendlier toward relaxing Prohibition laws, so much friendlier that good government organizations regularly accused lawmakers of being in cahoots with the "saloon gang." The charge stuck, at least to a degree. A coalition of reformers and prohibitionists succeeded in passing election reforms while also keeping liquor illegal. North Dakota entered the Union as a dry state, and so it was until Congress repealed the federal Prohibition laws. After that milestone North Dakota's liquor laws remained among the most restrictive in the country; food and liquor could not be served in the same room, patrons could not carry their drinks from the bar to their own table, bar windows were painted to a certain level so that children passing on the street could not see in.

Hear the echoes of all this in the campaign against legal marijuana: Legalization should be left to the federal government, some say (ignoring their own ideology that decisions are best made closest to the people). Defeat the measure and let the Legislature work this out, others suggest. Some advance specific proposals addressing one of the central concerns of sponsors of the measure, the impact of marijuana convictions on job prospects, even suggesting that those found guilty should apply for expungement of their records. A plethora of suggested regulations would govern how much marijuana might be grown, possessed or used and how potent it could legally be.

North Dakota has already had a whiff of this, in lawmakers' reaction to the medical marijuana measure that was passed two years ago. The early weeks of the 2017 legislative session were spent in judgmental handwringing before members accepted the inevitable and created a framework that will make medical marijuana available, in a few places for some conditions.

Like laws prohibiting marijuana use, laws prohibiting alcohol were widely ignored and arbitrarily enforced, a little like existing regulations governing behavior of lobbyists and legislators. The result in both cases has been the same, a citizen-based movement to change the laws.

North Dakota legislators haven't welcomed any of this. Instead, they're studying ways to make initiating laws more difficult — precisely the reaction of legislators a century ago.

We like to think that history doesn't repeat itself, but we're wrong about that. Legislators like their privileges. People want their rights.

Politics is the interplay between them. While the names and issues change, this remains pretty much the same.

Mike Jacobs is a former editor and publisher of the Herald.