Direct Democracy (Update)

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The 1990s witnessed no abatement in the trend for American voters to employ the direct ballot increasingly in their politics, and vital constitutional questions have continued to surface in the federal courts centering on the legitimacy of various initiative and referendum measures. Indeed, the term "government by initiative" has become a commonplace in political commentary. Most of the initiatives and referenda in the states have been designed to achieve legislative reforms. However, many of the most controversial, both as to their policy effects and as to their constitutionality, have been framed not as ordinary legislation but rather as amendments to the state constitutions. Especially notable in recent years have been direct-ballot measures that may be termed "rights-reducing," that is to say, intended to reduce the rights that may be claimed under state law by individuals and groups. The constitutionality of the plebiscitary process itself, in its several variants, has also been the subject of attention in these debates and in several cases before the Supreme Court.

The Court has sought on the one hand to define the standards by which the constitutionality of specific procedures for the direct ballot can be tested, and, on the other, it has applied equal protection analysis and other criteria to decide on the constitutional validity of the legislative results of plebiscites in the states. As noted by the late julian n. eule and other notable commentators, the Court's record has been marked by significant ambiguities, lacunae, and apparent inconsistencies. The impression of inconsistencies in the jurisprudence of direct-ballot constitutionality has left open the door to widely varying results in the lower courts. This uncertainty is evident, for example, in the litigative history of Proposition 209, a California constitutional amendment passed by the state's voters in 1996 with the result of ending state affirmative action programs that employed gender or race classifications. The federal district court issued an injunction against enforcement, on the ground that in order to reverse this measure, the minorities and women affected adversely could not use ordinary political and legislative process but instead carried the special burdens of action exclusively through constitutional amendment—a more costly and difficult procedure. In this respect, the district court applied the standard regarding "special barriers" to obtaining redress through regular political processes, as formulated in hunter v. erickson (1969) and later opinions. The district court also cited several Supreme Court decisions requiring strict scrutiny of measures that could disadvantage racial minorities, and contended that in light of predictable adverse effects on minorities and women the Proposition 209 amendment was invalid as a violation of equal protection. Shortly afterward, however, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit overturned the district court's decision, declaring that because women and minorities actually comprised in total a majority of the citizenry of California, no equal protection issue or procedural flaw stood in the way of its validation. Tellingly, however, the Ninth Circuit judges also complained that they found themselves "caught in the cross-fire of seemingly irreconcilable Supreme Court precedent." In the last analysis, they declared, it was properly "the general rule of our constitutional democracy" that the judgment of federal courts should not be exercised to "trump self-government." The Supreme Court declined to hear arguments in an appeal of the Ninth Circuit decision.

The Ninth Circuit decision reflected a strong strain of historic deference to state direct-ballot measures that had been articulated in the Supreme Court by, for example, Justice hugo l. black, who believed that, absent a compelling state interest or clear indication of discriminatory animus and effects, plebiscitary measures should be regarded as admirable examples of "devotion to democracy, not to bias, discrimination, or prejudice." An example of where such deference can lead, especially in a taxation case, was the decision of the Supreme Court in Nordlinger v. Hahn (1992). The Court upheld the constitutionality of a 1978 California ballot measure, Proposition 13, which set up a two-tier tax system that gave vast advantages to existing property owners over those who would acquire property after the amendment went into effect; the majority upheld the measure even though explicitly declaring that it was manifestly unjust in its operation.

The same Justices who let stand the Proposition 209 decision when appealed from the Ninth Circuit had decided differently in an earlier direct-ballot case, romer v. evans (1996), which also concerned minority rights and special barriers in political process. Over protests by the dissenters that the Court was involving itself in "cultural debate[s]" that ought not concern the judiciary, the majority ruled unconstitutional a Colorado state constitutional amendment, adopted by initiative, that would have invalidated all local ordinances barring discrimination based on sexual orientation. Declaring that this amendment violated the equal protection clause of the fourteenth amendment "[by making] a class of persons a stranger to its laws," Justice anthony m. kennedy wrote for the majority that homosexuals would thereby be denied the "safeguards that others enjoy" and would be rendered "unequal to everyone else." The Court also referred to the extra political barrier placed on homosexual citizens to obtain redress: They would need to resort to state-level constitutional amendment as the only procedure available if the amendment were to be applied.

A different strain in the Court's jurisprudence on the direct ballot has been intertwined with first amendment doctrine, and to some degree also with federalism considerations, as the Court has assessed state measures designed to address alleged flaws of direct democracy in actual practice. Criticisms have been directed especially at the influence of money, the use of professional signature gatherers and data banks, manipulation of public opinion through distortive ballot language and printed arguments in voter pamphlets, and the like. These ills are often compounded by low rates of participation by eligible voters in elections that institute fundamental changes of policy and law. Because of these features of actual practice, the critics contend, the initiative and referendum have become the very embodiment of special-interest and single-issue politics that undermine the deliberative virtues (and the checks and balance) of ordinary legislative procedure. There is, in this view, an "excess of democracy."

But how far can the states legitimately regulate the direct-ballot process, and still have their legislation survive challenges under the "exacting scrutiny" standard that pertains in First Amendment matters? This issue came before the Court in Buckley v. American Constitutional Law Foundation (1998), commonly referred to as "Buckley II" to differentiate it from the landmark case buckley v. valeo (1976) in which First Amendment protection of speech was invoked to strike down strict federal restrictions on political campaign contributions. In Buckley II, the Court struck down a set of regulations affecting the solicitation of signatures in the petition phase of the direct ballot process in Colorado. The state had required solicitors to wear badges with personal name identification and had prohibited signature gathering by nonresidents and residents who were not registered to vote. No compelling state interest was shown, the majority ruled, because other means were available to control corruption or fraud. But the Justices also reaffirmed a concept of the initiative process—especially the petition phase when measures are qualified for the ballot—as involving "core political speech" protected by the First Amendment. In dissent, however, Chief Justice william h. rehnquist, consistently with the view of state prerogatives that he has expressed in many federalism opinions, declared flatly that "[s]tate ballot initiatives are a matter of state concern"; he found no merit in the majority's application of First Amendment constraints.

The continuing importance of the direct ballot has been manifested in hundreds of measures in recent years, among them votes to restrict the rights of immigrants; reduce state protection of defendants' rights in criminal procedure; enhance "victims' rights"; articulate environmental rights; establish a right of privacy; introduce new economic regulations or, alternatively, immunize private property from some of regulation's economic effects; limit the taxing or spending powers; and reform the structure and powers of state government. In sum, the plebiscitary movement maintains its momentum at the century's close. And it is safe to anticipate a continuing debate over the constitutional dimensions of the great historic question regarding the place of populistic lawmaking process in a republican polity. The core dilemma was expressed by james madison when he argued in federalist No. 49, that "a constitutional road to the decision of the people" must be kept open, as it was the people on which a republic's legitimacy must rest; but that because plebiscitary process carried "the danger of disturbing the public tranquillity by interesting too strongly the public passions," only rarely, and on great issues of public life, should the citizenry want to resort to direct votes. This cautionary view will undoubtedly continue to operate in counterpoint with arguments that the direct ballot is the "most democratic of procedures" (as it was termed in the dissent in Romer), requiring special deference from the judiciary. And it will continue to be an urgent question whether the judicial power should be deployed more vigorously so as to assure that fundamental constitutional values are not overwhelmed by the "public passions" that Madison and his colleagues feared so greatly at the nation's founding.

Harry N. Scheiber


Eule, Julian N. 1990 Judicial Review of Direct Democracy. Yale Law Journal 99:1503.

Michelman, Frank I. 1998 "Protecting the People from Themselves," or How Direct Can Democracy Be? UCLA Law Review 45:1717–1734.

Schacter, Jane S. 1995 The Pursuit of "Popular Intent": Interpretive Dilemmas in Direct Democracy. Yale Law Journal 105:107–176.

Scheiber, Harry N. 1997 The Direct Ballot and State Constitutionalism. Rutgers Law Journal 28:787–823.

Tarr, G. Alan, ed. 1996 Constitutional Politics in the States: Contemporary Controversies and Historical Patterns. Westport, Conn.: Greenwood Press.