Chapter § 9.4

• Jurisdiction: Oregon

§ 9.4 STATE AND FEDERAL COURT CHALLENGES TO THE INITIATIVE SYSTEM

Over the years, litigants have brought a variety of constitutional challenges against the initiative system. Shortly after adoption of the initiative and referendum, some litigants argued that, by allowing voters to directly legislate, Oregon's system of government had ceased to be "republican" in nature, violating the Guarantee Clause of the United States Constitution. See US Const, Art IV, § 4 (providing in relevant part that "[t]he United States shall guarantee to every State in this Union a Republican Form of Government"). The United States Supreme Court held that such questions under the Guarantee Clause are not justiciable in the federal courts, and must be considered by Congress, if at all. Pacific States Telephone & Telegraph Co. v. Oregon, 223 US 118, 151, 32 S Ct 224, 56 L Ed 377 (1912). Similarly, the Oregon Supreme Court has held that claims challenging Oregon's initiative process under the Guarantee Clause are not justiciable in Oregon state courts. State ex rel. Huddleston v. Sawyer, 324 Or 597, 626, 932 P2d 1145, cert den, 522 US 994 (1997); see also Baum v. Newbry, 200 Or 576, 584-85, 267 P2d 220 (1954). But see Kadderly v. Portland, 44 Or 118, 74 P 110 (1903), in which the Oregon Supreme Court adjudicated a Guarantee Clause challenge to a (non-initiated) constitutional amendment.

The late Justice Hans Linde believed that Oregon courts should revisit their broad rejection of Guarantee Clause justiciability of the initiative. He questioned the notion that constitutional initiatives are forever beyond Guarantee Clause scrutiny in state courts. Hans A. Linde, When Is Initiative Lawmaking Not Republican Government, 17 Hastings Const L Q 159, 160-63 (1989). However, the Oregon Supreme Court has adhered to the rule of nonjusticiability, in State ex rel. Huddleston, 324 Or at 626.

Litigants have had more success challenging the constitutionality of restrictions on the initiative petitioning process. The circulation of an initiative petition implicates "core political speech" protected by the First Amendment and, as a result, certain state law limitations on signature gathering must meet strict scrutiny, and must be narrowly tailored to serve a compelling state interest. Meyer v. Grant, 486 US 414, 420-21, 108 S Ct 1886, 100 L Ed 2d 425 (1988). Several restrictions have failed to meet that standard, including a state ban on paying signature gatherers; a requirement that signature...