Instituting Police Department Reform: Municipal Governance and Minneapolis Question 2
On November 2, residents of Minneapolis will vote on Question 2 – a proposition to amend the city charter to transform the Police Department into a Department of Public Safety that employs a “comprehensive public health approach to the delivery of functions” related to public safety. While the proposition defers specifics of implementation to subsequent negotiations between the mayor and the city council, the Question contains two explicit changes from the status quo. First, it eliminates exclusive mayoral authority over the Department of Public Safety. Second, it eliminates a provision in the current charter that requires staffing and funding a minimum-sized police department.
Reasonable folks could differ over the merits of the Question, which is one of the more striking legal interventions in the debate over defunding or reforming police departments in the wake of the murder of George Floyd. Representative Ilhan Omar and state Attorney General Keith Ellison support the change. Senator Amy Klobuchar and Governor Tim Walz oppose it. A district court judge invalidated the ballot question on the grounds of insufficient clarity which would “mislead voters and make it unjust.” The Minnesota Supreme Court reversed that decision in a brief order, concluding that courts have limited authority to review ballot language.
But I am less focused on the merits of the Question. Instead, my initial reaction was skepticism about the desirability of designing a city’s governance structure though the ballot process. Ballotpedia reports that in 2020 there were 20 local police-related ballot measures, with another 10 proposed in 2021. Most of these would have made marginal changes to oversight, training, or practices of police departments. The Minneapolis question goes further; it replaces one standing department in the city charter with a new entity that, while responsible for traditional policing functions, would perform many of them in tandem with professionals that proponents of the question suggest could include mental health professionals, violence interrupters, social workers, housing experts, and substance abuse experts.
There are a couple of concerns that one might have about designing municipal government through a plebiscite. First, the municipal governance structure is complicated by its interconnected character – what Lon Fuller referred to as the problem of polycentricity. Think of the budgeting process. Setting the Parks Department budget without taking into account the Sanitation Department budget may fail to recognize that funding necessary to maintain parks could depend on how much funding is available to other departments that also operate in or around the parks. It is perhaps for this reason that many statutes exclude budgets from the list of subjects appropriate for the initiative. The same could be said for the allocation of municipal functions among departments. Ballot questions that focus on one city department in isolation can’t consider the interconnected nature of overall municipal activities. Polycentricity requires decision making by a centralized entity (the city council) rather than a piecemeal process in which voters allocate responsibilities or funding to one department without considering the implications for others.
But on that score, the ambiguity and imprecision of Question 2 may be a feature rather than the bug that the district court saw. Question 2 mandates a process, not an outcome. That is, it obligates the mayor and the council to consider the ways in which the city should deploy and pay for the various personnel that form the interconnected web of public safety that cities provide. It does require that the allocations and tradeoffs among those personnel be made largely within a single department. But maybe that is better than trying to achieve the same objective among multiple departments – say, the Police Department, Health Department, and Fire Department. If the Question simply addressed the Police Department – dictating personnel, budget, or assignments – it would run headlong into the polycentricity problem. But by requiring elected officials to design a Department of Public Safety that embodies a fuller range of public safety professionals, Question 2 cultivates rather than interferes with the interconnected nature of municipal functions.
The second potential issue in designing municipal governance by ballot is more complicated. Initiatives are frequently criticized as the product of interest group politics because they tend to deal with relatively narrow issues that have significant effects on a small number of voters whose interests may deviate from those of the electorate as a whole. Groups with a hefty checkbook and an idiosyncratic agenda may be able to organize their supporters, while the general public, with low interest in the outcome, arguably fails to vote or just follows the advertising dollars. Regardless of whether one thinks that initiatives are often the tools of well-funded, self-interested groups, Question 2 seems less susceptible to that criticism. Certainly, a ton of money has been thrown into the battle, but neither side seems to dramatically dominate the spending race. The primary proponent of the Question has raised $2.97 million, while the major opponent has raised about $1.59 million. Neither side seems unable to publicize its arguments. But more to the point, it would be difficult to contend that overhaul of the Police Department is of interest only to a narrow group of voters. Instead, a quick look at the website of the city’s major newspaper suggests that Question 2 has dominated the news cycle. Maybe matters of such broad interest are ideal candidates for the popular input that the ballot provides. Indeed, if there is interest group dominance in the policing policy of the city, it appears in the form of the existing requirement that the city fund a police force of at least 0.0017 employees per resident, a provision inserted at the behest of the police federation 60 years ago and that Question 2 would eliminate.
So my skepticism has dissipated. There may be reasons to oppose (or favor) Question 2 – if you like strong mayor systems, you won’t like the elimination of executive control over the new Department of Public Safety. But the attempt to design governance institutions by ballot is not among them, at least not to the extent that I initially feared.