I&R Legal Issues

The Courts and the Initiative Process
By Kenneth P. Miller

A great irony of initiative lawmaking is that judges have become the system’s most important players. The citizen’s initiative process was designed to establish “pure democracy.” Instead, it is controlled and often thwarted by undemocratic and countermajoritarian courts.

A prominent example of the conflict between initiative voters and the courts comes from the term limits movement. Between 1990 and 1994, voters in over 20 states used the initiative process to impose term limits on Members of Congress and state elected officials. This blitz was a powerful, coast-to-coast exercise of direct democracy. In 1995, however, the U.S. Supreme Court dealt the movement a decisive setback. In U.S. Term Limits, Inc. v. Thornton the court overturned the will of millions of voters by declaring Congressional term limits unconstitutional. Several state courts meanwhile struck down term limits on state officials.

The term limits saga demonstrates that citizen lawmakers can bypass legislatures and other institutions of representative government to enact “the will of the people,” but they cannot bypass the courts. Courts are the one institutional check on the people’s initiative power.

Judicial invalidation of voter-approved initiatives is remarkable, but it is not rare. Courts have struck down (in whole or in part) many landmark measures, including initiatives to regulate campaign finance, establish a “blanket” primary system, restrict the rights of illegal immigrants, and impose tough criminal penalties, just to name a few. Indeed, a recent study of four high-use initiative states over the past four decades confirms that voter-approved initiatives are challenged in court more often than not – and courts invalidate roughly half of all challenged initiatives in part or in their entirety. Clearly, courts exercise a powerful institutional check on the initiative process.

Why are so many initiatives invalidated?

There are at least three important reasons why so many initiatives have trouble in the courts: (1) the subject matter of many initiatives; (2) the polarized process of initiative lawmaking; and (3) the growing hostility of some courts toward the initiative process.

First, the subject matter of many initiatives invites legal challenge. Initiatives often tackle issues involving constitutional rights and other norms – the very things American courts seek to protect. A survey of voter-approved initiatives indicates that some (e.g., those related to environmental protection, taxation, and economic regulation) address areas where courts generally defer to policymakers. Such initiatives are rarely challenged on substantive grounds, and rarely invalidated. However, a larger percentage of initiatives touch on areas courts closely guard, such as the rights of criminal defendants or racial or other protected minorities, political rights (e.g., campaign contributions or expenditures), and the institutions of representative government. These types of initiatives are challenged and invalidated at high rates.

Second, the process of initiative lawmaking encourages litigation. Kelly Clark, a former Oregon state legislator and supporter of the initiative process, observes: “As a legislator over a decade ago, I was constantly amazed at how any piece of legislation with ‘sharp edges’ – that is to say legislation that really rocked the status quo – ran into a quick death in the legislative process. What would come out would be some ‘moderate’ version of the previously radical or conservative legislation. The initiative process offers no such softening. It offers extremes of both the Left and the Right. It is supposed to do that.”

While this may be so, one effect of a polarized process is that it increases the likelihood of litigation. If an initiative’s opponents have no opportunities to “soften” the proposal, their only remaining options are to defeat the measure at the polls or try to kill it in court.

Third, evidence suggests that judges in a number of states have grown increasingly hostile toward the initiative process. Over a decade ago, former California Supreme Court Justice Stanley Mosk wrote: “The initiative process is out of control in California.” Increasing numbers of judges in other states have expressed similar sentiments. How is judicial hostility toward the initiative process manifested? One way is through strict enforcement of technical rules for initiative lawmaking, such as the rule that an initiative may contain only one subject. As UCLA Law Professor Daniel H. Lowenstein has argued, “single subject” rules are “infinitely malleable” – if a court chooses to strictly enforce such a rule, it can strike down almost any ballot measure. In 1998, the Oregon State Supreme Court issued a landmark decision in Armatta v. Kitzhaber , which established a strict new interpretation of the state constitution’s rule that each amendment to the constitution requires a separate vote. This landmark Oregon case, and other tough “one amendment” or “single subject” decisions in states such as Florida, Montana, Colorado, Washington, and California, have created new opportunities for those challenging initiatives in court.

How much deference should courts give to initiatives and the initiative process?

Although the U.S. Supreme Court has held that judges should apply the same level of review to ballot initiatives as they do to any other law , a lively debate continues over how courts should treat initiatives. Some believe courts should defer more to initiatives than to “ordinary legislation” because initiatives more closely reflect the “pure” will of the people. Others, such as the late Professor Julian Eule, have argued just the opposite, namely that courts should give less deference to initiatives than to ordinary legislation, because unlike a legislature, the initiative process lacks checks and balances; since courts are the only institutional check in the process, judges need to be extra-vigilant in reviewing initiatives.

Over the past century, with some exceptions, courts have given both the initiative process and individual initiatives a large measure of deference. Importantly, courts have expressly rejected invitations to declare the initiative process itself in violation of Art. IV, Section 4 of the U.S. Constitution, which guarantees each state a “Republican Form of Government.” And in other decisions, courts have declared their strong desire to uphold individual ballot measures. For example the California Supreme Court, upheld the state’s landmark Proposition 13 tax-cutting initiative against a multi-pronged legal challenge, arguing: “It is our solemn duty to jealously guard the initiative power, it being one of the most precious rights of our democratic process.”

Recent signs of judicial hostility in Oregon and elsewhere, however, suggest that a growing number of judges are adopting a less deferential approach.

Potential for voter backlash against the courts

Aggressive invalidation of initiatives creates risks for courts. If judges continue to strike down voter-approved initiatives at high rates, there is a good possibility that initiative activists will seek revenge. The filing of initiatives across the country designed to alter and change the way the judiciary operates, as well as the undertaking of recall campaigns for judges who strike down initiatives, has emphasized this point. These efforts will further politicize the judiciary and many people believe threaten its independence. The courts are a powerful check on initiative lawmaking, but also a vulnerable one.