Initiative and referendum: the trials of direct democracy.

• Author: Friedelbaum, Stanley H.
• Position: Perspectives: Ballot Initiatives and Referenda

1. INTRODUCTION

   Contrary to the Framers' distrust of democratic rule unless confined by rigorous restraints, political experiments during the early years of the twentieth century, and the Progressive movement that followed, sought to expand popular participation. (1) Fears of majoritarian excesses persisted, but possible threats seemed to have been outweighed by the professed need for a return to the sovereign people--regarded as the ultimate source of power and the preferred fount for policymaking. The spread of the Oregon Plan, involving the constitutional initiative, led to incorporation of the tenets of direct democracy in seventeen state constitutions and legal codes during succeeding years. Yet the plan was largely regional when measured by the breadth of its adoption. Little interest was evident in the eastern states, with the exception of Massachusetts at a later date. (2) The western experiment met many of the expectations of its early sponsors, though complications and technical problems have been far more frequent and complex than could have been anticipated.

   In its initial phase, questions were raised concerning the validity of the new device by reference to the Federal Constitution's guarantee of a republican form of government to every state in the Union. That the Guaranty Clause was unlikely to serve as a negating source was foreshadowed by a pre-Civil War decision characterizing the Clause's warrant as nonjusticiable since it posed a political question best committed to Congress. (3) The Oregon Supreme Court considered the Guaranty Clause's applicability to the initiative process in 1903, finding that the process neither destroyed the republican form of government nor substituted another in its place. (4) In a subsequent challenge to a license tax enacted by initiative, the same court sustained resort to the device by describing it as no more than ancillary to representative institutions. (5)

   Whether state courts were bound in all respects by the Supreme Court's refusal to intervene was a question that remained open--albeit arguably remote. In fact, it did come to light almost a century later in an Oregon case attacking adoption of the death penalty by initiative. (6) But any possibility of a revival of Guaranty Clause claims for state court determination appeared to have been precluded by the Supreme Court's cautionary note, more than a decade earlier, that a state court might not impose greater restrictions as a matter of federal constitutional law when the Court itself had explicitly refrained from doing so. (7) It is highly improbable that the initiative, regardless of misgivings concerning its practical effects, will ever succumb to constitutional objections premised on the Federal Constitution's Guaranty Clause. Nor is it likely that other constitutional provisions may be readily invoked as prohibitory unless the terms of the initiative are such as to be patently violative of specified rights. (8)

   Less obliquely related to the initiative and an assessment of its validity by reviewing courts are technical objections based upon a variety of considerations, including the single-subject rule, topical exclusions, and the clarity of titles and ballot summaries. More difficult to define with precision is the line that effectively divides an amendment of the state constitution from a revision--the latter repeatedly condemned as beyond the scope of the initiative. Indeed, it is the prospect of revision that has created considerable travail for state judges, and it has promoted fears that state charters could be substantially altered without affording major changes the time and effort long considered essential to ensure due deliberation. (9) Throughout all of these stages, state courts have been loath to proceed with haste or to apply a level of scrutiny that might be taken to intrude with excessive zeal upon the prerogatives of the electorate. (10)

   Apart from analytical problems arising from a far-reaching and controversial initiative, the Supreme Court of California, in Raven v. Deukmejian, (11) sought to resolve a series of vexing threshold questions. The court moved first to weigh charges that the measure, called the Crime Victims Justice Reform Act, violated the single-subject rule. (12) The proposal encompassed a broad range of issues, including public displeasure with judicial enforcement of the criminal law. (13) Even the most indulgent examination of the topical content suggested diverse and disparate coverage approaching, if not exceeding, the limits of a coherent enactment. It was difficult to assume that the several sections were internally interrelated and reasonably related. (14) Yet the majority concluded that the single-subject requirement of the state constitution had been satisfied. (15) To this finding, a dissenter responded that the measure was a "veritable grabbag" with a unifying theme, if it could be labeled as such, conveying little more than an animus against prior holdings of the court. (16)

   Central to the prevailing opinion was an appraisal of the amendment/revision dichotomy that proved to be controlling. The court held that the proposition presented to the voters, in part, achieved a constitutional revision rather than an amendment of the state charter. (17) Setting aside the question of quantitative effect and conceding the general rule of deference in favor of the initiative power, the court determined that the qualitative effect of the measure was to bring about a substantial alteration of the constitutional scheme. (18) Most disturbing was the restriction placed upon the judiciary to curb its interpretive discretion in giving independent force and effect to the California Constitution. (19) It was this fundamental modification of a basic principle of constitutional jurisprudence that led to a holding of the initiative's partial invalidity. (20) As the majority viewed it, the turnabout realized, both in its scope and in its impact, amounted to an impermissible intrusion upon, and a reformulation of, the governmental plan. (21)

   Despite the persuasive arguments presented, it was debatable whether the technical distinctions between an amendatory and revisory effort were of such consequence as to justify the court's ruling. It remained conjectural whether the differences noted were of sufficient weight to warrant a reproof of what a majority termed one of the most precious rights of our democratic process. Indeed, it could be argued that the opinion was actually a decision on the merits rather than a procedural correction of course. There was also reason to believe that it might have been preferable, or at least more politically feasible, for the court to have found that the single-subject rule had been violated. For all of the rhetoric displayed, it was possible that the issue had not been finally resolved and brought to its long sought termination. Strong echoes of independence and state pride might not suffice to deter untoward alterations in the process of judicial decision-making.

   That threshold considerations will always-s figure in the disposition of controversial cases related to the exercise of the initiative appears to be accepted dictum. In many respects, the turmoil associated with the California case resembled contention over such federal issues as subject-matter jurisdiction, standing, and justiciability in the much controverted apportionment case, Baker v. Carr. (22) It was an assault upon the existing regimen of malapportionment, not the technical factors noted, that lay at the core of the Supreme Court's searching, if not always convincing, examination of threshold questions. (23) In similar fashion, the California court's review of such questions regarding the initiative represented a thinly disguised foray to reverse an extreme electoral remedy against what many voters found to be an offensively sympathetic treatment of felons. (24) It is difficult, if not futile, to attempt to separate vexing threshold issues from the subject matter to which they apply and to which they serve as introductory sequences.

   At an even earlier stage, the structural arrangement necessary to set in motion the initiative process centers around the availability of a forum for the gathering of the required number of signatures and for public discussion and consideration--no matter how compressed. In Oregon, the historic source of the initiative, much effort has been devoted to the provision of suitable opportunities for implementation in this first stage, especially in view of the changing character of the means available. (25) The shopping center cases, often viewed as describing functional equivalents for old-fashioned downtown areas, are equally significant for their role in promoting the initiative as an operative device. In particular, the Oregon Supreme Court has examined the procedure on several occasions, looking toward the creation of what has been termed an enhanced or favored offshoot of political expression. (26) That such claims are not merely contrived substitutes for free speech interests has been evident from repeated references to the initiative as the prevailing source of authority. Whether these interests can be effectively set apart from conventional expressive rights remains problematic.

   In the first of two cases establishing a right to collect signatures for an initiative petition, Lloyd Corp. v. Whiffen (Whiffen 1), the Oregon Supreme Court concluded on a "subconstitutional" basis that a shopping mall management company could not completely prevent the gathering of initiative signatures in the common areas of the center. (27) Rules subsequently were adopted providing for such activities, but on a limited basis to which those soliciting signatures took exception. (28) It was a second decision that not only opened the mall to more expansive gathering opportunities but also placed the right itself on a plenary constitutional basis. (29) As...