November 4, 2006

Eminent Domain Reform on the Ballot in Eleven States

Carroll Andrew Morse

Today’s OpinionJournal notes that next Tuesday’s elections are likely to be a big step forward in the national movement to reform eminent domain laws

No fewer than 11 states (see nearby table) have ballot measures designed to limit government's ability to pilfer private property for someone else's private economic development. Eight initiatives would enshrine those restrictions in state constitutions, and polls show that most are headed for victories.

Alabama was the first to move after Kelo, passing a statute in 2005 that still gave government the leeway to pursue private property that could be defined as urban "blight." This turned out to be a major loophole, which city planners have routinely applied to any home or business they wanted to condemn and then transfer to private developers. Alabama's legislature closed that loophole this year, and "blight" is now defined in the better reforms as a property posing a danger to health or public safety.

This issue, where citizens are using voter initiative to pass reforms that lobbyists have often blocked in state legislatures, is an excellent example of how ridiculous it is to assert that the lack of voter initiative is somehow in the average citizen's best interests…
Arizona's legislature also passed a strong anti-Kelo bill, only to watch Democratic Governor Janet Napolitano veto it in June. Arizona voters responded by pursuing their own initiative that is even wider in scope. The best model may be Florida, where the legislature passed a Constitutional amendment that goes before the voters next week.

All of this has occurred despite furious lobbying by local municipalities and developers to water down legislation. The lobbying has sometimes worked with state legislatures, but voters in Idaho, North Dakota and California have responded with ballot language for constitutional amendments that go further than their own state statutes. This ballot language tends to be legally clearer, and such constitutional provisions are harder for politicians to evade or weaken later when voters aren't looking.

Finally, the op-ed notes that one region of the country seems to be lagging the others in terms of eminent domain reform…
As is so often the case when it comes to economic freedom, the states absent from this debate are those with liberal legislatures on the East Coast. Politicians in New York, New Jersey and Connecticut (home of Kelo) are so addicted to the tax revenue they get by forcible property transfers to rich developers that they refuse to act on behalf of property rights. This is one more reason for their citizens to keep fleeing these states for more hospitable climes, much as Third World countries that fail to protect property rights watch their human capital flee.
Sadly, Rhode Island is no exception to this trend.