The “Angriest Crocodile”: Information Costs, Direct Democracy Activists, and the Politicization of State Judicial Elections

DOI10.1177/0160323X0503700201
Published date01 August 2005
Date01 August 2005
AuthorMathew Manweller
Subject MatterGeneral Interest
86 State and Local Government Review
BETWEEN 1960 AND 1998, the people
of Oregon, Colorado, and Califor-
nia passed 127 citizen-sponsored
state ballot measures. More than half of those
ballot measures were challenged in court
(Miller 1999). In all, state and federal courts
invalidated 33 of them (Miller 1999). Twelve
initiatives were invalidated by federal courts,
and the remainder, by state courts. Many of
the ballot measures invalidated by the courts
were both popular and highly salient to the
public. A 2002 Oregon Supreme Court ruling
in Lehman v. Bradbury (333 Ore. 231; 37 P.3d
989; 2002 Ore) invalidated a popular term-
limit initiative. In Amalgamated Transit Union
Local 587 v. State (142 Wn.2d 183; 11 P.3d
762; 2000 Wash), the Washington Supreme
Court invalidated a popular tax limitation
measure. And in California, a federal district
court, in LULAC et al. v. Wilson, et al. (908
F. Supp. 255 [C.D. Cal. 1995]), invalidated a
popular but divisive immigration limitation
provision. With increasing frequency, courts
are being called upon to nullify direct democ-
racy initiatives. Understandably, those who
draft and bear the information costs of passing
these measures become frustrated when they
are invalidated by one or a handful of judges.
Initiative drafters have little recourse against
unelected federal judges.1 But state courts, to
varying degrees, are subject to democratic
elections and are therefore more likely to face
political responses from disgruntled initiative
activists. This article examines how the in-
validation of initiatives by state courts affects
the politicization of state judicial elections.
Specif‌i cally, it is argued that initiative activists
increasingly bear the costs of challenging sit-
ting state justices, primarily by assuming the
information costs associated with electoral
politics. It can be argued that state justices
are insulated from electoral reprisal because
voters rarely have enough information about
judicial candidates (incumbents and challeng-
ers) to hold them responsible for actions con-
trary to their own political preferences (Brody
2004). However, if initiative activists begin
to bear the information costs in state judicial
elections, there likely will be an increase in the
politicization of state judicial races.
Recent political events have encouraged
scholars to take an increasing interest in state
judicial elections. For example, sitting mem-
bers of Congress have become involved in
state supreme court elections,
2
unpopular
tort liability decisions have involved state
supreme courts ,
3
and more often, sitting
justices have faced electoral competition.4 As
a result, campaign spending in judicial elec-
tions is increasing, as is the use of campaign
State and Local Government Review
Vol. 37, No. 2 (2005): 86–102
The “Angriest Crocodile”: Information
Costs, Direct Democracy Activists, and the
Politicization of State Judicial Elections
Mathew Manweller
GENERAL INTEREST
87
Vol. 37, No. 2, 2005
Politicization of State Judicial Elections
advertisements. According to the Brennan
Center on Justice, between 1998 and 2000,
there was a 61 percent increase in the level
of funds raised by state supreme court can-
didates (Goldberg and Holman 2002). Much
of the money is spent on media advertise-
ments. Even so, the U.S. Supreme Court, in
Republican Party of Minn. v. White (536 U.S.
765; 122 S. Ct.), invalidated state measures
limiting state judicial candidates from raising
and spending campaign money.
All of these events have led social scientists
to examine the conditions that lead to judicial
electoral challenges (Bonneau and Hall 2003).
The following variables have been identi-
f‌i ed: the type of institutional mechanism for
electing and retaining judges (Brace and Hall
1995), the salience of issues to be ruled upon
(Hall 1992), and the amount of money and
interest group participation in the election
(Dubois 1986). However, completely ignored
in these empirical studies is the role of direct
democracy activists who seek recourse against
judges who have invalidated state ballot mea-
sures. The omission is glaring given that, ipso
facto, any successful ballot measure has gar-
nered the support of at least 50 percent of the
voting public. Therefore, any judge or court
that invalidates such a measure is, by def‌i ni-
tion, acting contrary to the majority will of
the public. It seems logical that these types of
rulings would attract the ire of not only voters
but especially the activist(s) who spend con-
siderable time and money to ensure the pas-
sage of the ballot measure. However, judges
need only fear electoral reprisal if the voting
public has enough information to connect
the judge or court to the invalidation of the
popular initiative, which typically is not the
case (Lovrich and Sheldon 1984; Baum 1987).
Yet, direct democracy activists increasingly
provide such information to the voters.
Rates of Judicial Review of
State Ballot Measures
Fifty percent of all successful state ballot mea-
sures are challenged in court, and of those, 54
percent are eventually invalidated (see Tables
1 and 2). These rates of judicial nullif‌i cation
are signif‌i cantly higher for state ballot mea-
sures than for either federal or state legislative
acts.5 Comparatively, state ballot measures
are 54 times more likely to be invalidated by
the courts. The high rate of judicial nullif‌i ca-
tion necessarily draws judges and courts into
highly salient political disputes threatening
the political insulation so vital to the court’s
independence. Former California Supreme
Court Justice Joseph Grodin observed, “It is
one thing for a court to tell a legislature that
a statute it has adopted is unconstitutional;
to tell that to the people of a state who have
indicated their direct support for the mea-
sure through the ballot is another” (quoted
in Uelman 1972, 1147). When one judge is
required to overrule the wishes of two mil-
lion voters, it is unlikely that the public will
respond by applauding the integrity of the
checks and balances system. The rejection is
felt and reacted to personally.
It is unclear whether the high rates of
judicial invalidation represent a story of in-
stitutional success or failure. From one per-
spective, the fact that initiatives are nullif‌i ed
so often is a sign that America’s Madisonian
system is working exactly as it was designed.
From another perspective, high rates of nul-
lif‌i cation raise the specter of Platonic judges
acting as a supralegislature, wielding an in-
discriminate scythe against the majority’s will.
As with most dilemmas in American politics,
the answer probably lies somewhere in be-
tween the two extremes. The high rate of
ballot measure nullif‌i cation entails a defense
of minority rights so critical to Madison’s vi-
sion of what a republican form of government
should entail (Read 1995). At the same time,
when judges are drawn into political debates
and are called upon to mediate challenges to
popularly elected initiatives, there is a risk of
politicizing the courts. Unlike the public in
general, many initiative drafters have access
to well-f‌i nanced political organizations that
can mobilize fundraising and voter outreach.
6
Uelmen (1972, 1147) notes that the initiative

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