Lawmaking by popular votes on initiatives or referenda is a constitutional feature of the individual states rather than the United States. After a century in which some form of direct lawmaking by voters spread to about half the states, however, its legal status under the U.S. Constitution has not been finally settled. This results from the Supreme Court's choice of premises for reviewing the processes as well as the substance of state laws.
Lawmaking by popular vote on measures initiated or referred by signed petitions is a legacy of the late-nineteenth-century Populist and progressive political movements, along with the direct election of U.S. senators, woman suffrage, local "home rule," and voter recall of elected officials. Combining democratic ideology with resentment against the domination of elected governments by large business and financial interests, the initiative and referendum gained wide acceptance during the first two decades of the twentieth century, especially in the western states. In the early and influential form added to the Oregon Constitution in 1902, the "people reserve to themselves the initiative power" to propose and to enact or reject laws and constitutional amendments, as well as "the referendum power" to approve or reject legislative acts upon the petition of a percentage of voters. Later amendments further "reserved" the same powers to the voters of municipalities and local districts. This local law-making must be distinguished from initiatives for statewide laws and constitutional amendments.
Opponents argued against direct lawmaking on the ground that it contradicted the U.S. Constitution's guarantee of a republican form of government in each state, and the Oregon Supreme Court seized the first opportunity to defend this innovation. In Kadderly v. City of Portland (1903), the court cited the definition of james madison, written in the federalist, of a republican government as one administered by elected representatives. Noting that Oregon continued to have a legislature, a governor, and courts, the court sustained the initiative and referendum in principle, before either had been used, on grounds that they left the legislature free to enact, change, or repeal the laws, and that the courts still could test their constitutional validity. Kadderly became the leading precedent in other states that adopted the initiative and referendum.
When the Pacific Telephone & Telegraph Company in 1908 challenged an initiated tax measure under the guarantee clause, the Oregon court rejected this claim with a simple reference to its Kadderly opinion. The U.S. Supreme Court, in Pacific Telephone & Telegraph Co. v. Oregon (1912), dismissed the company's writ of error for lack of federal jurisdiction, holding that the guarantee of republican government was the responsibility of Congress rather than of the Court. This left standing the Oregon court's decision in the case. Since Pacific Telephone, the status of initiative lawmaking and other state practices under the guarantee clause has been deemed to lack justiciability in the federal courts, though not necessarily in state courts, which are bound by the supremacy clause to apply the Constitution in their states. Nevertheless, many state courts have assumed that they cannot decide claims under the guarantee clause.
Because direct legislation is designed to reflect popular desires (what Madison knew as "interests" and "passions"), the initiative or referendum often are less sensitive than legislatures to the concerns of identifiable minority groups. Examples are an Oregon initiative aimed at closing parochial schools, invalidated as a denial of due process in pierce v. society of sisters (1925); a California constitutional amendment against laws forbidding housing discrimination; Washington initiatives concerning school busing and requiring plebiscites on ordinances against housing discrimination; and a Colorado constitutional amendment against equal rights laws for homosexuals. In the latter two cases, the Court invalidated the requirements under the equal protection clause for depriving identifiable minorities of equal opportunities to gain favorable laws.
Late-twentieth-century experience showed new problems with unbounded statewide initiative powers. Sponsors turned to drafting measures as constitutional amendments in order to place them beyond the reach of the legislature and state courts, essentially excluding government altogether, contrary to the premise on which the Kadderly opinion had held the system compatible with republican government. Following California's lead, many amendments limited state and local fiscal powers, especially property taxes, while others forced spending increases on state pensions, prisons, and mandatory prison sentences. Other measures abandoned century-old state guarantees in the law enforcement process under the guise of "victims' rights" amendments.
Moreover, sponsors increasingly relied on paid workers rather than citizen volunteers for the required signatures on petitions, after the Court held in Meyer v. Grant (1988) that the first amendment prevents prohibition of this practice. The First Amendment also prohibits requiring petition circulators to be registered voters under Buckley v. American Constitutional Law Foundation, Inc. (1999), and protects campaign spending for and against ballot measures under first national bank of boston v. bellotti (1978). Begun as a progressive reaction against the political power of money, initiatives and referenda in time drew larger campaign expenditures than elections for any state office.
At the end of its first century, academic critics began to question the very premise of direct lawmaking—its democratic credentials—because it allows a fraction of all voters to make public law in private, for personal reasons, without any obligation to represent or to account to others for their votes. Nonetheless, initiated laws are accorded special deference in political rhetoric, and sometimes in state lawmaking requirements. Initiatives can force change in political structures, like term limits and campaign financing, that elected officials will not make. Voters are unlikely to abandon the system where it exists.
Hans A. Linde
(see also: Direct Democracy.)
Linde, Hans A. 1993 When Initiative Lawmaking Is Not "Republican Government": The Campaign Against Homosexuality. Oregan Law Review 72:19–45.
Magleby, David 1984 Direct Legislation. Baltimore, Maryland: Johns Hopkins University Press.
Symposium 1994 Guaranteeing a Republican Form of Government. University of Colorado Law Review 65:709–946
——1998 Redirected Democracy: An Evaluation of the Initiative Process. Willamette Law Review 34:391–773