Why we cannot ask why: ethical independence and voter intent.

AuthorTaylor, Tim

Should a vote still count if cast for the wrong reason? More specifically, when citizens decide a legislative question themselves, whether through initiative, referendum, or plebiscite, should judges require their votes to be backed by a certain level of responsibility, of "equal concern and respect"? (1) This is not to ask whether laws passed by popular vote require some level of rationality or decency. That is too easy; obviously, they must. (2) Rather, the question is whether the law should require each individual voter, in the cloister of the voting booth, to cast her vote rationally and responsibly. This Note argues no.

Courts and commentators have struggled to determine when laws, whether enacted directly by citizens or through regular legislation, are invalid because of their intentions? This analysis, however, has ignored a key distinction between voter motivation and legislative design. Voter motivation is the particular reason a citizen (or legislator) chooses to vote for or against a particular measure. Legislative design, on the other hand, is what the measure, as divined by tools of statutory construction, is calculated to do. Inquiry into legislative design is necessary for proper adjudication. Inquiry into voter motivation, however, should be forbidden because it intrudes upon voters' "ethical independence," (4) as Professor Ronald Dworkin terms it.

This Note proceeds in three parts. Part I discusses the cases and commentary confronting the question of inquiry into voter intent. The traditional approach has been to bar such inquiry. However, recent court decisions have eroded that rule. Part II posits a defense of the traditional position. Although the legal doctrine locates such defenses under the First Amendment's freedoms of speech and association and the right to privacy, such an approach is an unwieldy shield for voter freedom. Instead, such freedom is best founded in the principle of ethical independence, which animates--but extends far beyond--the First Amendment and the right to privacy. This principle of ethical independence requires the distinction noted above between motivation and design. Part III addresses two objections to Part II. First, it discusses the problem of the law's willingness in other areas to look into the mind. Second, it distinguishes Professor Cass Sunstein's notion of "naked preferences."

  1. CHALLENGES TO THE PROHIBITION ON INQUIRING INTO VOTER MOTIVATION

    Citizen-enacted legislation has a long and controversial history in the United States. (5) Critics have disparaged the practice both as a means for raw majorities to bulldoze minority opposition (6) and as a lawmaking process devoid of deliberation, information, and expertise. (7) Some argue further that the two defects go hand-in-hand. (8) Given the procedural shortcomings of direct democracy, courts have often stepped in to police its bounds.

    The settled law--The Supreme Court's first encounter with direct democracy occurred in 1912, (9) when it heard argument to determine whether Oregon's referendum procedure violated the Republican Guarantee Clause. (10) The Court held the matter nonjusticiable. (11) Since then, no case before the Supreme Court has challenged whether a mode of direct democracy, as a procedure itself, is constitutional.

    The Court has encountered numerous cases, however, questioning the constitutionality of laws enacted by popular vote. Resolving these cases has invariably required interpretation of the intent behind the laws in question. (12) Stated simply, the Court's view has been that "[t]he sovereignty of the people is itself subject to those constitutional limitations which have been duly adopted and remain unrepealed." (13) The "implementation of [a law] through popular referendum [cannot] immunize it." (14) In theory, then, the review of popularly enacted and legislatively enacted statutes is the same.

    In the equal protection context, courts purport to apply the same rational basis standard to all legislation, whether enacted by citizens or their representatives. For example, in upholding a popularly enacted zoning law, the Tenth Circuit stated, "The "true" purpose of the [policy], (i.e., the actual purpose that may have motivated its proponents, assuming this can be known) is irrelevant for rational basis analysis.'.... Rather, under rational basis analysis, we look only to whether a 'reasonably conceivable' basis exists." (15) This standard is a faithful application of the Supreme Court's statement that "it is entirely irrelevant for constitutional purposes whether the conceived reason for [a] challenged distinction actually motivated the legislature." (16) Even under rational basis review, however, the Supreme Court and lower courts have occasionally been less than deferential to popularly enacted legislation (17) and less than clear when applying more demanding levels of scrutiny. (18)

    The traditional view: no inquiry into voter motivation--Under mere rational basis scrutiny, there is no question of whether to inquire into voter motivation because such an inquiry would be perfunctory. Because any explanation for a popular enactment, "true" or not, will suffice, there is nothing to be discovered that cannot be hypothesized away. Nevertheless, when courts must scour more diligently, they must also decide whether to attempt to ascertain the motivations of voters. This decision is not whether to go beyond a statute's text; Inferences beyond the text's language, including the statute's probable effects, compliance with the rest of a statutory scheme, and agreement with rationales of policy and morality, (19) are not precluded by this question. In Reitman v. Mulkey, (20) for example, the Supreme Court went far beyond the seemingly innocuous language of a California housing initiative to find that the initiative effectively repealed portions of the Fair Housing Act. (21) But the Court did not reach this conclusion by any finding that Californians wanted the initiative to repeal the Fair Housing Act (though many probably did). (22) Or, as summarized by the Sixth Circuit, "neither the Supreme Court nor this Court has ever inquired into the motivation of voters in an equal protection clause challenge to a referendum election involving a facially neutral referendum unless racial discrimination was the only possible motivation behind the referendum results." (23)

    Until recently, courts uniformly followed this approach, refusing to peer into the voting booth. In Kirksey v. City of Jackson, the Fifth Circuit explained why:

    From the earliest times in the unfolding of what has come to be our Constitution and Bill of Rights, free expression has been viewed as one of the most precious rights, essential to the flowering and growth of a democratic society .... Even the muting of universally offensive comments is not permitted [under the First Amendment]. At the core of first amendment values is the right to espouse political views and associate for political purposes. Inherent in this guarantee is the sanctity of the ballot. The district court was of the opinion that an inquiry "into the motives of voters may very well constitute an unwarranted and unconstitutional undermining of one of the most fundamental rights of the citizens under our constitutional form of government...." We agree. The first amendment assures every citizen the right to "cast his vote for whatever reason he pleases .... " Baser motives are protected along with the grand and noble. Stigmatized racial attitudes, neither socially admirable nor civically attuned, are not constitutionally proscribed.... The motivation(s) of the individual voters may not be subjected to the searching judicial inquiry the plaintiffs wish performed. (24) The Kirksey district court, quoted above, relied upon SASSO v. City of Union City, (25) which upheld a zoning change by referendum against an equal protection challenge. There, the Ninth Circuit noted that the plaintiffs "reach[ed] beyond purpose:" (26)

    If the voters' purpose is to be found here, then, it would seem to require far more than a simple application of objective standards. If the true motive is to be ascertained not through speculation but through a probing of the private attitudes of the voters, the inquiry would entail an intolerable invasion of the privacy that must protect an exercise of the franchise. (27) The Sixth Circuit has also cited Kirksey with approval, putting forth not only the secret ballot rationale for denying inquiry into voter motivation, (28) but also a presumption in favor of referendums as truly democratic (29) and concerns that evidence of any one voter's discriminatory intent would unfairly impute bias to the whole electorate. (30)

    Challenges to the voter inquiry prohibition--The decisions of the last twenty years have shown a shift toward scrutiny of voter motivation. Led by California, a hotbed of popular legislation, courts have moved toward considering extrinsic evidence of voter motivation when investigating referenda's constitutionality. (31) The most marked change occurred in 1996, in Romer v. Evans. (32) Romer struck down Colorado's Amendment 2, which prohibited any Colorado state or municipal organ from extending antidiscrimination protections to homosexuals. The opinion's most remarkable feature was its cavalier characterization of Colorado's voters as motivated only by animus: "[L]aws of the kind now before us raise the inevitable inference that the disadvantage imposed is born of animosity...." (33) It is not the unflattering portrait of Coloradans, in itself, that is noteworthy, (34) but the opinion's recourse to voter motivation. Although previous cases had invoked animus as an impermissible legislative motive, (35) none had done so in the direct democracy context. Likewise, although previous cases had struck down popularly enacted initiatives...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT