Conditions on taking the initiative: the First Amendment implications of subject matter restrictions on ballot initiatives.

AuthorSkiba-Crafts, Anna

Nearly half of U.S. states offer a ballot initiative process that citizens may use to pass legislation or constitutional amendments by a popular vote. Some states, however, impose substantive restrictions on the types of initiatives citizens may submit to the ballot for a vote--precluding, for example, initiatives lowering drug penalties or initiatives related to religion. Circuit courts are split on whether and how such restrictions implicate the First Amendment.

This Note argues that--rather than limiting "expressive conduct" protected only minimally by the First Amendment, or limiting pure conduct that does not garner any First Amendment protection--subject matter restrictions on ballot initiatives constrain "core political speech" and so should receive strict First Amendment scrutiny. It asserts that the rationales underlying the First Amendment counsel for the recognition of initiatives as pure speech, and that ballot initiatives fit into the specific doctrinal category of "core political speech."

TABLE OF CONTENTS INTRODUCTION I. BALLOT INITIATIVES, SUBJECT MATTER RESTRICTIONS, AND THE CIRCUIT SPLIT ON WHETHER AND HOW RESTRICTIONS IMPLICATE THE FIRST AMENDMENT A. Ballot Initiatives B. Subject Matter Restrictions C. Circuit Split on First Amendment Implications II. THE PURPOSES UNDERLYING THE FIRST AMENDMENT SUPPORT THE RECOGNITION OF BALLOT INITIATIVES AS PROTECTED SPEECH A. Ballot Initiative Procedures Implicate Primary Objects of First Amendment Protection B. Ballot Initiatives Are Analogous to Face-to-Face Discussion in the "Public Sphere" C. The Ballot Initiative Device Creates a "Marketplace of Ideas" III. BALLOT INITIATIVES QUALIFY AS "CORE POLITICAL SPEECH" UNDER FIRST AMENDMENT DOCTRINE A. Two Standards for Analyzing Regulations that Affect Political and Election-Related Speech B. Subject Matter Restrictions on Ballot Initiatives-Regulations of Neutral Mechanical Aspects of the Electoral Process? C. The Ballot Initiative Qualifies as "Core Political Speech" 1. Public Discussion 2. Discussion of Government Affairs 3. Regulation Based on Content 4. Counterarguments CONCLUSION INTRODUCTION

In several states, voters have the opportunity to make law directly through the use of the ballot initiative, a tool of "direct democracy." (1) Citizens have registered their opinions at the ballot box to legislate collectively on issues such as bilingual education, gun control, abortion, cigarette taxes, physician-assisted suicide, and same-sex marriage. (2) But in some states that offer an initiative process, initiatives on certain topics are impeded by extra procedural requirements or are prohibited altogether. Utah, for example, subjects any ballot initiative affecting wildlife management (hunting) to a unique two-thirds majority requirement. (3) Massachusetts citizens may not put an initiative related to religion on the ballot; (4) citizens of the District of Columbia may not submit an initiative to decrease penalties for marijuana use. (5)

This Note considers whether and how restrictions on the subject matter of ballot initiatives implicate the First Amendment. (6) It addresses the question by examining the nature of the ballot initiative--meaning the actual appearance of an initiative on the ballot for a vote (7)--in relation to First Amendment theory and doctrine. Constraints on initiative subject matter could be construed as 1) direct restrictions on "core political speech" likely to be struck down; 2) restrictions on "expressive conduct" subject only to very relaxed First Amendment review, as the First Circuit has held; or 3) regulations on pure conduct that do not restrict First Amendment-protected expression at all, as the Eighth, Tenth, and D.C. Circuits have held. (8)

This Note argues that state-imposed restrictions on the subject matter of ballot initiatives do implicate the First Amendment, and, specifically, that they constrain "core political speech" and so should be subject to strict scrutiny. (9) Part I puts the issue in context, providing background on ballot initiatives, discussing subject matter restrictions, and describing the different conclusions courts have reached about the First Amendment implications of these restrictions. Part II applies broad First Amendment theory to ballot initiatives, asserting that the basic principles underlying the amendment suggest that it should protect ballot initiatives. This Part argues that the protection of ballot initiatives as speech is congruent with the fundamental aims of the First Amendment, given the amendment's special focuses on political speech and self-governance, on exchanges occurring in the public sphere, and on maintaining a "marketplace" of ideas. Part III applies specific First Amendment case law to subject matter restrictions on ballot initiatives. It argues that such restrictions are appropriately characterized under current doctrine as limitations on "core political speech," rather than as the type of neutral election regulations that are considered innocuous under the First Amendment--and so should be protected from government interference with their content.

  1. BALLOT INITIATIVES, SUBJECT MATTER RESTRICTIONS, AND THE CIRCUIT SPLIT ON WHETHER AND HOW RESTRICTIONS IMPLICATE THE FIRST AMENDMENT

    This Part provides background on how subject matter restrictions on ballot initiatives operate in order to flame the question of whether and how such restrictions implicate the First Amendment. Section I.A briefly explains the initiative process, the history behind the development of the initiative in the United States, and some benefits and drawbacks of initiative use. Section I.B describes subject matter restrictions, distinguishing substantive restrictions from procedural or structural limitations and outlining some of the motivations behind subject matter restrictions. Section I.C frames the legal question, laying out the conclusions and arguments of the courts in the circuit split.

    1. Ballot Initiatives

      Ballot initiatives allow citizens to submit a proposed statute or constitutional amendment to a popular vote for enactment, bypassing the legislature. (10) The ballot initiative arose in the western United States in the early 1900s, promoted by Populists who were disillusioned with representative democracy and believed direct democracy would increase citizen involvement in politics, make government more democratic, and circumvent the influence of special interests and money. (11) Currently, twenty-four states and the District of Columbia maintain ballot initiative procedures. (12) Use of the process has increased over the last few decades and continues to rise. (13)

      To place an initiative on the ballot, citizens must fulfill certain procedural requirements. (14) Generally, initiative proponents first must get the proposed statutory or constitutional text certified by the appropriate state official. (15) Proponents then have a limited period during which to collect a specified number of signatures by circulating petitions. (16) If enough of the collected signatures are validated by the clerk or registrar, the secretary of state will approve the initiative to appear on the ballot in the next election. (17) Some states explain the initiatives to voters through a mailed pamphlet or publication in the newspaper before the election. (18) If a majority of voters approves an initiative at the ballot, it will pass into law.

      In the 2008 elections there were fifty-nine state initiatives on ballots across the country. (19) Initiatives approved by voters in 2008 included a ban on affirmative action in public institutions (Nebraska), an English-only requirement for government meetings involving public business (Missouri), same-sex marriage bans (California, Florida, and Arizona), the legalization of medicinal marijuana use (Michigan), and a prohibition on farms' confinement of egg-laying hens, calves raised for veal, and pregnant pigs (California). (20)

      The ballot initiative has been touted for several benefits. In addition to countering the potential influence of special interests on legislators, initiatives can circumvent legislative gridlock. (21) Initiatives may also serve as a check on representatives, making them more responsive to their constituents. (22) Direct lawmaking can be especially influential in areas of legislation that involve a potential conflict of interest for legislators, such as campaign finance and lobbying rules, election regulations, term limits, and lawmakers' salaries. (23) Initiatives may also encourage public debate and improve voter turnout. (24)

      On the other hand, criticisms--of both the procedure and its results--abound. Perhaps the biggest concern is the potential for money to drive the initiative process. The availability of the procedure has given rise to a full-fledged industry around the drafting of initiatives, circulation of petitions, and advertising; (25) the balance of financial resources often determines the results. (26) Ballot initiatives also lack what many think are positive features of decision making by a representative body: compromise, (27) the opportunity to refine and modify proposed legislation, (28) transparency and accountability, (29) the weighing of priorities across issues, (30) and the consideration of multiple alternatives before adopting a rule. (31) By displacing the legislature, lawmaking by initiative may also forego much consideration of legislation's long-term effects (32) and the benefits of checks like bicameralism and the executive veto. (33) In addition, popular decision making may not be adequate for more complicated legislative issues. (34) Related to this, a ballot listing multiple initiatives can seem overwhelmingly complex, (35) perhaps deterring voter participation. (36) Finally, laws passed by ballot initiatives are often harmful to minorities. (37) Although many of these concerns are valid--indeed, compelling--this Note does not address the propriety of ballot...

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