matt panichi - direct democracy and anti-gay ballot measures
TRANSCRIPT
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Direct Democracy and Civil Rights: The Importance of Strict Procedure and Opportunity to Challenge Anti-Gay Ballot
Initiatives!
Matthew R. Panichi
INTRODUCTION
A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. 1
“Letʼs put it on the ballot.”2 A common battle cry from those who seek to
circumvent representative democracy, this call for a public vote is the
quintessential solution espoused by those behind anti-gay, direct democracy
ballot measures. After all, we live in a democracy. Should we not be able to
decide issues based on the democratic principle that the majority shall rule? At
first reaction, the answer seems simple. However, as the above quote from
James Madison suggests, common passions of a majority party can lead to the
unfair treatment of those in the minority. Nowhere better is this seen than in the
use of anti-gay ballot measures in the present-day direct democracy process.
Since the beginning of the 20th century, direct democracy has continually
gained momentum in the United States. Today, there are twenty-four states that
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provide this populist form of governance either through a direct ballot vote (ballot
initiatives) or referendum.3 In 2012 alone, over seventy questions have been
approved to appear on ballots across the United States and because it is a
presidential election year, that number is expected to grow.4 Issues range from
tax measures, eminent domain and congressional terms limits, to more divisive
matters such as abortion and gay marriage. This essay focuses on the latter
category, those that implicate civil rights and protections guaranteed under the
Constitution.
This essay will first look into the most current example of the use of direct
democracy to withhold marriage equality right to same-sex couples. Followed by
a brief history of the origins of direct democracy, including the early arguments
made by our Founders against such an institution, the second section of the
essay focuses specifically on how direct democracy has been used to deny
equality to gays and lesbians. In the final section, suggestions and arguments
are made that, if implemented within the direct democracy framework, could
serve to better protect civil rights and the rights of unpopular minority groups.
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I. AN INTRODUCTION TO DIRECT DEMOCRACY: PAST AND PRESENT
A. North Carolina. A Glimpse into Direct Democracy
On May 8, 2012, North Carolinians went to the polls and had the
opportunity to vote on “Amendment 1,” which ballot language described as “A
Constitutional amendment to provide that marriage between one man and one
woman is the only domestic legal union that shall be valid or recognized by this
State.”5 Surprisingly, defining marriage through constitutional amendment is not
unique. North Carolina is now the 30th state to ban same-sex marriage through a
constitutional amendment. What is unique about this vote, however, is that same-
sex marriage was already illegal in North Carolina. It was banned in 1996 by the
state legislature. Why then, the need for Amendment 1?
The answer is two-fold. First, the amendment does more than just define
marriage as between a man and a woman. As discussed below, it goes much
further than that. Secondly, amid the growing support behind allowing same-sex
couples to marry, constitutional amendments provide conservative groups who
oppose marriage equality with something they desperately need - an almost
immovable roadblock.6
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Although same-sex partners do not have a legal right to marry in North
Carolina, there are some parts of the state that offer domestic partnerships.7
Through those partnerships, same-sex couples have the opportunity to take
advantage of benefits offered to public employees, including access to health
care. However, because of the broad language of Amendment 1, these rights will
more than likely be stripped. And because the language of the amendment states
that “marriage between one man and one woman is the only domestic legal union
that shall be valid or recognized by this State,” the potential for the future offering
of civil unions to same-sex partners in the state is virtually eliminated.8 This effect
leads into the second goal of the amendment, which is to prevent future rights
being extended to same-sex couples.
Amendment 1 effectively cements this new definition of marriage into state
law and shields it from redefinition by either the state legislative or judicial
branches. As opponents of same-sex marriage have found, the tactical response
to the growing trend in support for gay marriage and civil unions is to hit the
“pause” button and stop social progress in its tracks. North Carolina has shown
us there is no better way to achieve this than to amend their constitution.
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Time will tell how far the negative affects of Amendment 1 will reach. A
few things are known, however. Conservative lawmakers in North Carolina had
been trying to get this amendment on the ballot for the past eight years. In 2011,
finally in control of both the house and the state senate for the first time in over
140 years, they succeeded. Vote For Marriage N.C., the organization behind the
Amendment 1 push, then began their campaign. Armed with television
commercials that stated marriage “is what God created to give children a mother
and a father,” the organization received 70% of its financing from self-described
conservative religious organizations.9
Adding to this misfortune is early evidence of the possibility that the
success of Amendment 1 may have been due to unclear ballot language. Just a
little over a week prior to the vote, Public Policy Polling revealed that only 40% of
potential voters were aware that the amendment would ban both same-sex
marriage and civil unions. When asked whether they would vote for the
amendment knowing it banned both, only 38% said they would.10
Unfortunately, we may never know the full extent to which ballot language
uncertainty played in the success of the amendment. Taken as a whole,
however, the amendment serves as the quintessential example of how direct
democracy can serve as a tool to deprive civil rights to a minority group.
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B. History of Direct Democracy
We cannot claim ignorance as to the dangers of direct democracy.
Allowing citizens to enact laws directly, instead of through representatives, was
worrisome to those who founded this Country. James Madison, the Father of the
Constitution, was vehemently opposed to allowing direct democracy and argued
strongly against such government in his famously entitled “Federalist 10.” Pure
democracy, in his words, “can admit no cure for the mischiefs of faction.”11 By
“faction,” Madison was referring to citizens “who are united and actuated by some
common impulse of passion.”12 He went on to write that “A common passion or
interest will, in almost every case, be felt by a majority of the whole…and there is
nothing to check the inducements to sacrifice the weaker party.”13 Popular
government, or direct government, he concluded, enables majorities to “sacrifice
to its ruling passion or interest both the public good and the rights of other
citizens.”14
Madison fought for and won his argument for representative democracy.
Those who wrote the Constitution understood the need for a filtering process in
the manner which we enact laws. The representative democracy, or republican
form of government, they argued, would have a voice that was more “consonant
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to the public good than if pronounced by the people themselves.”15 By enacting
legislation through elected representatives, laws would therefore be appropriately
“filtered.” Lawmakers serve as a buffer between the people and the laws enacted
upon them. They hold hearings, deliberate, fight for a consensus, even
compromise.16 Each law must pass two chambers, sometimes getting sent back
to the chamber of origin several times. Once that process is complete, laws are
then subject to approval from the governor, who, in most states, can either sign,
veto, or pass without signature. If he or she does choose to veto the bill, both
chambers then have an opportunity to override the veto with a two-thirds majority
vote. It is a long, arduous and sometimes ineffective process. However, it was
chosen due to its ability to protect minority parties from majority rule. For one
hundred and twenty-four years, direct democracy was relatively nonexistent in
the United States.
In 1911, California voted to enact legislation that would provide citizens
the opportunity to introduce both ballot initiatives and referendums.17 Since then,
twenty-three other states have enacted laws into their state constitutions to allow
their citizens to do the same.18 Ballot initiatives are by far the more popular form
of direct citizen legislation. Over 70% of citizens in the United States live in a city !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!"a!*0K!"F!'2><8O!H0!*8L<9-!-C/!;;#35'(9&',&/:&;&3(!(#.3!$'F#$(&:L'>#3.:#(C',#59(;'2.$#7#&;'B30&:'M#:&7('M&6.7:!7C'*3;(#(B(#.3;'#3'(9&'HK)K')(!(&;-!""!,#)#%!b/*+#+H,!Y!b/*+Hg!hZ)(#%(*g-!"EW-!G11!5G1""?0!!"^!i2BO!:2>D8<7-!6=D>!,0!H2B2C=c<2>!Y!'=>2O;!A2B>8B-!,&%..(#35'A!$#8.:3#!'N'*3#(#!(#"&;1'A.3"&3(#.3;'!30'E."&:36&3(',&8.:6O')C6/.;#B6'*3(:.0B7(#.31!SS!*=M0!*0)0!*0!(8J0!4E4-!S1a!5G1""?0!!"W!'2><8O!)0!,7<3D!Y!H2B=O<>8!60!#=OR8B3-!,&/:&;&3(!(#.3'?30'M#:&7('M&6.7:!7C'#3'(9&'H3#(&0')(!(&;-!SG!6/Z(.)*!/&!(%b(%,%.#)#+X%!'%:/H()Hg-!Ga!5G11F?0!!
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or state that uses the initiative process, which allows citizens to propose laws
and directly vote on those measures.19 The referendum process, although not
used as frequently, is very similar. Referendums are used retroactively to repeal
laws previously enacted by state or local legislatures.20 All in all, over 2,300 ballot
initiatives have been voted on, with a passage rate just over 40%.21 Initiatives
and referendums have been used to vote on just about every fiscal and social
issue subject to legislation, including taxes, marijuana laws, environmental
preservation, gun control, abortion, marriage laws and health care. Unfortunately,
the civil rights of many citizens end up in the cross fire, either through direct
attack or as the byproduct of laws passed under other stated goals. The civil
rights of gays and lesbians are no exception.
II. DIRECT DEMOCRACYʼS AFFECT ON CIVIL RIGHTS, GAY RIGHTS
Since its inception, the process of direct democracy has long been
affecting civil rights of American citizens, including those of unpopular minority
groups. History has shown that time and time again, when civil rights – some
which have been deemed fundamental under the Constitution – are subject to
popular vote, those rights can be infringed upon. African American voting rights, !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!"E'*0K!G1!P9!('!:&'-!$$.('2:./.;#(#.3;1'*3#(#!(#"&;1'!30',&8&:&30B6;L'+><3<23<J8!Y!(8K8B8>;[7!+>93<3[38!23!3D8!Z><J8B9<3M!=K!,=[3D8B>!H2O<K=B><2'5G1""?-!!"!#$!%$&'!('D33TUVVLLL0<2>;B<>93<3[380=BCVh[<N`]G1&2N3]G1P]G1AD23]G1<9]G1+Y(0D37!5O293!J<9<38;!:2M!"4-!G1"G?0!G"!G"&:"#&Q'.8'*3#(#!(#"&'H;&1'IRSJ<TSSR-!+.+#+)#+X%!Y!(%&%(%.'Z:!+.,#+#Z#%-!5,8T387R8B-!G1"1?-!!"!#$!%$&'!(!D33TUVVLLL0<2>;B<>93<3[380=BCV+(+]G1+><3<23<J8]G1Z98]G15G1"1P"?0T;K!5O293!J<9<38;!:2M!"W-!G1"G?0!!
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womenʼs suffrage, race-based employment discrimination and abortion rights all
have suffered horrible defeats at the ballot box.22
Historically, ballot measures have involved targeting the civil rights of
minority groups in relation to housing and accommodations, school
desegregation, “English only” laws and AIDS policies.23 Research has shown that
citizens have approved over three-fourths of ballot measures restricting civil
rights, compared to only a third of all measures in general.24 The rights of gays
and lesbians have not been spared from direct democracy. In fact, in most cases
they are the intended targets of ballot measures with the goal to either stop
progress toward equality, or in some instances, strip rights that have already
been afforded.
According to Amy Stone, a professor of sociology who has written
extensively on the subject, the proficiency of direct democracy measures
targeting rights of gays and lesbians grew after early success in local anti-gay
referendums in the 1970s.25 These referendums, she claims, were the “Religious
Rightʼs” response to small gains the LGBT were making at the local level.26
Emboldened by their success at the voting booth, starting in the late 1980s, more
and more statewide ballot measures began to be introduced.27 From 1993 to
1996, thirteen states and over thirty cities and towns attempted to introduce !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!GG!)7M!*0!,3=>8-!E!C',#59(;'!('(9&'-!$$.('-.=-!4!5Z><J0!=K!:<>>0!bB899!G1""?0!G4!@2BR2B2!,0!I27RO8-!2B((#35'A#"#$',#59(;'(.'!'2./B$!:'U.(&-!S"!):%(+H).!6/Z(.)*!/&!b/*+#+H)*!,H+%.H%-!GSa-!Ga4!5"EE^?0!GS!*0K!23!GSa!Ga!,3=>8-!;B/:!'>=38!GG-!23!""0!GF!*0K!G^!*0K!
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seventy-nine anti-gay ballot measures.28 As the success of anti-gay measures
grew, so did their presence on ballots.
Overall, between 1974 and 2009 there were 149 anti-gay ballot measures
put to public vote at both the state and local level.29 These measures included
both referendums to rescind gay rights laws and also initiatives seeking to ban
same-sex marriage, fire gay and lesbian teachers, and restrict any future pro-gay
laws.30 Currently, the initiative is by far the more popular tactic. Whereas the
referendum was used retroactively, the initiative gained popularity due to its
ability to “strike first” and proactively pass laws.
The most current data by Professor Stone divides anti-gay ballot
measures into two main categories. “Legal-restrictive initiatives,” which account
for 31% of anti-gay ballot measures, attempt to rescind any current rights held or
curtail any future legislation that may grant certain rights or protections to the
LGBT community.31 “Marriage or partnership initiatives,” accounting for 25%, are
those ballot measures that seek to rescind current or constrain “relationship
recognition rights” to same-sex couples, such as domestic partnerships, civil
unions and marriage.32 This second category of ballot measures has become the
more popular of the two. For instance, in 2004 alone, eleven states banned
same-sex marriage through constitutional amendment.
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A major issue in these ballot measure campaigns is the opportunity to play
to public fears. Not only that, but in some cases to mislead or outright lie to
voters. The right to vote is one of the most cemented rights available in this
Country. But armed with the wrong information – information that was put forth
based on stereotypes and mistruths – this right can be used to exploit the direct
democracy process in favor of a national anti-gay agenda.
This November, two more states, Maine and Minnesota, are poised to put
marriage rights up for public vote.33 Currently, in Maryland, same-sex marriage
opponents are in the process of gathering signatures to place a referendum on
the November ballot to repeal the Civil Marriage Protection Act passed by the
state legislature in March of 2012. The Act, which passed by a 72-67 vote, made
same-sex marriage legal in Maryland and would allow couples to wed as early as
January of 2013. If the referendum succeeds, Maryland will serve as yet another
example of the power of direct democracy to subvert representative democracy
and place civil rights directly into the hands of the voting public.
III. HOW TO PROTECT MINORITY RIGHTS WITHIN DIRECT DEMOCRACY
There is a void in opportunity to prevent gay rights from being voted on in
state and local ballots. Under the current constitutions of most states, a simple
majority vote by its citizenry, pushed onto the ballot by groups with national !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!44!6=9D!I==;72>-!?'DB:3#35'2.#3('8.:'E!C'>!::#!5&1!#D8!b8L!H8>38B!=>!3D8!,32389!5:2M!S-!G1"G?-!!"!#$!%$&'!('D33TUVVLLL0T8L9323890=BCVTB=f8N39V93238O<>8VD82;O<>!89V<>K=CB2TD<NP2P3[B><>CPT=<>3PK=BPC2MP72BB<2C8PWaWEE4WSS^S!5O293!J<9<38;!:2M!"W-!G1"G?0!'
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agendas and a barrage of out-of-state financing, can roll back civil rights
guaranteed by federal and state constitutions, taking years of social progress
with it. For example, in less than six months time, ballot initiative Proposition 8
stripped away the right to same-sex marriage, a right that the California Supreme
Court had just a few months earlier deemed “fundamental.”34 A similar problem
surfaced in 2009, after Maine was poised to become the first state to legalize
same-sex marriage through the state legislature. In less than six months, with
help from the same public relations firm behind the success of Proposition 8 and
possibly illegal funding from the National Organization for Marriage, a 53%
simple majority voted to repeal the law by referendum.35
In California, there are numerous calls from both sides of the political
spectrum to rein in the direct democracy process. This sentiment was highlighted
even further when California Supreme Court Chief Justice Ronald M. George
proclaimed that the constitutional and statutory structure of the state “has been
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brought about not by legislative fact-gathering and deliberation, but rather by the
approval of voter initiative measures, often funded by special interests.”36 In
referring to the quick and easy manner in which rights are given and taken
through direct democracy in California, the Chief Justice playfully pointed to a law
passed on the same day as Proposition 8 that regulated confinement in fowl
coops, remarking that “Chickens gained valuable rights in California on the same
day that gay men and lesbians lost them.”37 On a more serious note, he spoke of
the need of people in his state to consider fundamentally reforming the voter
initiative process or “continue on a course of dysfunctional state government,
characterized by a lack of accountability on the part of our officeholders as well
as the voting public.”38
The comments by Chief Justice George represent a growing awareness of
the dangers of direct democracy and the need to reform – the need to recognize
that certain fundamental rights should not be subject to popular vote. How,
though, do we prevent civil rights issues, including those which affect the rights of
gays and lesbians, and other unpopular social groups, from being placed on
ballots? The answer lies in more strict pre-ballot procedures, the requirement of
supermajority votes, and the ability to preemptively challenge, in federal court,
any ballot measure that infringes on a constitutionally protected right or targets a
minority group. By no means does this essay suggest total abolishment of direct !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!36 68>><K8B!,38<>D2[8B-!D./'VB05&'A!$$;'A!$#8K'E."&:36&3('WMC;8B37(#.3!$X1'.0g0!#+:%,-!/N3=R8B!"1-!G11E-!!"!#$!%$&'!(!D33TUVVLLL0>M3<7890N=7VG11EV"1V""!V[9V""N2O<K0D37Ol\BmG!5O293!J<9<38;!:2M!"W-!G1"G?!4^!*0K!4W!*0K
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democracy processes within state and local government. It is, however,
advocating that the aforementioned reforms, if properly implemented, can help
protect the civil rights of powerless and vulnerable minorities from the potential
tyranny of majority rule and secure the vision for a true representational
democracy set forth by our nationʼs founders.
A. Pre-Ballot Procedure
The entire initiative and referendum process, in general, is in need of a
substantial overhaul. Setting aside, for a moment, the issue of ballot measures
that specifically affect civil rights or target minority groups, there are certain
across-the-board changes state governments can adopt by following the lead of
other states and working within the framework of the progress those states have
already made. Those strategies involve stricter guidelines surrounding the initial
signature gathering stage of ballot measure process.
In the past five years in California, marriage rights have been extended to
same-sex couples by the legislature, upheld by the State Supreme Court, then
taken away by constitutional amendment, Proposition 8, the most expensive
ballot initiative campaign in the history of direct democracy. The same California
Supreme Court that had just affirmed the right to same-sex marriage, now
handcuffed by the broken system in which allowed such measures, was forced to
uphold the amendment (the right for same-sex couples to marry was reinstated
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by the ninth circuit in Perry v. Brown).39 The direct democracy procedures in
place in California are not unique to that state, as the numerous states that allow
initiatives and referendums use very similar procedures. However, due to its
position in the spotlight, Californiaʼs direct democracy system highlights the need
for state-by-state reform.
When the decision In re Marriage Cases was handed down, the largest
anti-gay campaign in the countryʼs history was launched.4041 Religious groups,
along with nationwide anti-gay marriage institutions and large out-of-state and in-
state individual donors began pumping records amounts of money into the fight
to amend Californiaʼs constitution and ban same-sex marriage. A staggering
amount of $83 million was spent between the two sides.42 Eighteen thousand
same-sex couples had been legally married since the California Supreme Court
overturned the Stateʼs ban on gay marriage. Their constitutionally protected right
to marry, along with the right of future same-sex couples wishing to do the same,
was now going to be decided through a statewide popular vote. However, with so
much at stake, anti-gay groups needed to only collect just over 690,000
signatures in order to get the proposed amendment on the November 2008
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!4E!)&&'b8BBM!J0!@B=L>-!F^"!&04;!"1aG!5E3D!H<B0!G1"G?0!S1!+>!B8!:2BB<2C8!H2989-!S4!H2O0S3D!^a^!5,[T0!H30!G11W?0!!S"!,3=>8-!;B/:!'>=38!GG-!23!4^0!SG!D:!7Y#35'(9&'>.3&CO'F#3!$'@B6%&:;1!*0)0!#+:%,-!&8RB[2BM!4-!G11E-!D33TUVVLLL0O23!<7890N=7V>8L9VO=N2OVO2P7=>8M72T-1-G"EWGG10D37O93=BM!5O293!J<9<38;!:2M!"W-!G1"G?0!H=7T2B8;!3=!3D8!9O<CD3OM!7=B8!3D2>!n"4!7<OO<=>!3=32O!9T8>3!=>!2OO!N27T2<C>9!3=!R2>!9278P98Q!72BB<2C8!<>!3D8!"4!932389!3D23!J=38;!3=!;=!9=!<>!G11S0!,[8!/kH=>>8OO!D9&'>.3&C'-&9#30'D9&'>!::#!5&'?6&306&3(;1'Z'.)#k*!+.,#0!/.!:/.%g!+.!,#)#%!b/*+#+H,!562>0!G^-!G11F?-!!"!#$!%$&'!('9((/O[[QQQK8.$$.Q(9&6.3&CK.:5[/:&;;[,&/.:(U#&QK/'9(6$L:\T]^'5O293!J<9<38;!:2M!"W-!G1"G?0!
! "F!
ballot.43 This number represents the required eight percent of the total number of
voters who cast ballots in the previous gubernatorial election. Put another way, in
2008, there were 15,537,046 registered voters, yet signatures from only 4.4% of
those voters would be enough to qualify the measure onto the ballot and open
the door to an almost irreversible constitutional amendment.44
The problem with the signature requirement in most states, including
California, is three-fold. First, the minimum signature requirement is simply too
low. In North Dakota, for example, you can get an issue affecting civil rights on a
ballot with signatures from only two percent of the total population of the state.45
Second, the manner in which signatures are gathered is flawed. Most states
allow sponsors of ballot initiatives to employ signature gatherers on a “pay per-
signature” basis, a system that is rife with fraud46. Finally, states need to continue
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!43 H)*+&/(.+)!,%H(%#)(g!/&!,#)#%!.%A,!(%*%),%!56[>8!G-!G11W?-!D33TUVVLLL0!9=90N20C=JV2;7<>VTB899PB8O82989VG11WV'@1WP1FW0T;K0!SSH2O<K=B><2k9!H=>93<3[3<=>2O!)78>;78>3-!bB=T=9<3<=>!W-!L29!93B[N`!;=L>!RM!3D8!E3D!H<BN[<3!B[O<>C!<>!2&::C'"K'-:.Q3!29![>N=>93<3[3<=>2O!K=B!J<=O23<>C!8_[2O!TB=38N3<=>0!$=L8J8B-!3D8!B[O<>C!<9!988>!29!J8BM!>2BB=L!<>!3D23!<3!B8O<8;!=>!3D8!K2N3!3D23!3D8!H2O<K=B><2!,[TB878!H=[B3!D2;!2OB82;M!CB2>38;!9278P98Q!N=[TO89!3D8!B<CD3!3=!72BBM!5"W-111!N=[TO89!72BB<8;!<>!O899!3D2>!9<Q!7=>3D9?!2>;!bB=T0!W!L29!B89N<>;<>C!3D23!B<CD30!#D8B8K=B8-!ND2OO8>C89!3=!=3D8B!93238!278>;78>39!LD8B8!3D8!B<CD3!3=!9278P98Q!72BB<2C8!L29!>8J8B!CB2>38;!72M!>=3!R8!2RO8!3=!B8OM!=>!2&::CK''Sa!#$%!@),+H!,#%b,!#/!'/!).!+.+#+)#+X%!+.!./(#$!')i/#)!,#)#Z#%,!).'!):%.':%.#,!o!'+(%H#!+.+#+)#+X%!b(/H%,,-!)(!(&'*+,-!+(+-!D33TUVVLLL0<2>;B<>93<3[380=BCV.8L]G1!+(+]G1A8R9<38]G1+>K=V+Y(]G1(8982BND]G12>;]G1$<93=BMV+Y(]G123]G13D8]G1,3238L<;8]G1*8J8OV@29<N]G1938T9V.=B3D]G1'2`=320T;K!5O293!J<9<38;!:2M!"W-!G1"G?0'SF!/D<=!,3238!(8T0!68>><K8B!I2BB<9=>-!#893<7=>M!3=!$=[98!Y!%3D<N9!H=770!562>0!"G-!G1"1?!5'8NO2B<>C!3D23!<>!G11E!2O=>8-!9<C>23[B89!=K!G4!;8N8298;!B89<;8>39!L8B8!K=[>;!=>!R2OO=3!T83<3<=>90!)O9=!N<3<>C!2!G11W!<>N<;8>3!LD8B8!T83<3<=>8B9!L=B`<>C!=>!R8D2OK!=K!T2M;2M!O=2>!N=7T2><89!L8B8!NO2<7<>C!3D8!C=2O!=K!3D8!T83<3<=>!L29!3=!O=L8B!<>38B893!B2389-!LD8>!<>!K2N3!3D8M!L8B8!3BM<>C!3=!B2<98!3D87?0!!
! "^!
the trend in statutorily banning out-of-state signature gatherers from being
employed by groups proposing ballot measures.
1. Minimum Signature Requirements
The minimum signature requirement, as it stands in most states,
effectively operates as merely a perfunctory requirement that is easily met. Low
signature requirements defeat the purpose of the practice, which is to prove to
state officials that there is public support behind the proposed measure.
Therefore, states should increase their minimum signature requirements.
Although some would argue this merely raises the financial barrier by costing
ballot sponsors more money and time spent, this added requirement would help
ensure that there is evidence of statewide support to place such a measure on
the ballot. For the more drastic measure of amending a state constitution, the
number of signatures for ballot approval should be no lower than 25% of the total
number of citizens who voted in the most recent gubernatorial election.47 These
increases, coupled with longer petition circulation periods, will allow the much
needed time for lesser-funded groups to essentially “catch-up” to those
organizations having the benefit of a running start, while also providing more time
for the public to become aware of and educate themselves as to the issue they
are being asked to vote on.48
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!S^!H[BB8>3OM-!)B<c=>2k9!"a]!B8_[<B878>3!<9!3D8!D<CD893!=K!2>M!932380!!SW!)&&'5&3&:!$$C1''87=NB2NM!RM!+><3<23<J8U!,D2T<>C!H2O<K=B><2k9!&=[B3D!@B2>ND!=K!I=J8B>78>3-!b/*+Hg!)(H$+X%!5:2M!G11W?0!
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2. Gathering Signatures
The second important procedural change within the signature-gathering
requirement is the need for states to ban the practice of paying signature
gatherers on a per-signature basis. Studies show that allowing such practices
opens the door to fraud, as groups backing initiatives are more likely to employ
anyone who can get the most signatures, including out-of-state workers who
make a career out of being a collector49. Also, signature gatherers, if paid per-
signature, are more tempted to use whatever tactics necessary to produce the
most signatures, including forging signatures and utilizing bait-and-switch
methods.50 Although one federal appellate court has ruled curtailing this practice
to be a violation on First Amendment grounds51, the majority of federal courts
have ruled just the opposite52. For the most part, these decisions deem the bans
constitutional because they are narrowly tailored to meet the specific state
interest of preventing fraud.53 Therefore, in order to protect the integrity of the
direct democracy process, a process that has historically worked to deprive
minority groups of fundamental civil rights, it is necessary for states to implement
statutes that ban the pay-per-signature practice.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!49 @)**/#!+.+#+)#+X%!,#()#%Ig!H%.#%(-!-!$$.('*3(&5:#(CO'?'-:.Y&3')C;(&6'*3'@&&0'G8').$B(#.3;!56[OM-!G11E?-!!"!#$!%$&'!('D33TUVVR<9N04N;>0>83V"KR122"G;WFa;;;WNF\L!L7FREcLN0T;K0'a1!+><3<23<J8!Y!(8K8B8>;[7!+>93<3[38!J0!628C8B-!GS"!&04;!F"S-!F"W!5W3D!H<B0!G11"?!5;<9N[99<>C!2!"EES!<>N<;8>3!LD8B8!"^-111!9<C>23[B89!L8B8!<>J2O<;238;!;[8!<>!T2B3!3=!dT2MPT8BP9<C>23[B8e?0!a"!#2Q!(8K=B7!J0!'838B9-!a"W!&04;!4^a!5F3D!H<B0!G11W?0!aG!GS"!&04;!23!F"^p!b8B9=>!J0!.0g0!,3238!@;0!=K!%O8N3<=>9-!SF^!&04;!"S"!5G;!H<B0!G11F?p!bB838!J0!@B2;R[BM-!S4W!&04;!ESE!5E3D!H<B0!G11F?0!!a4'V!&5&:-!GS"!&04;'23!^4!5>2BB=L!R8N2[98!3D8M!L8B8!93<OO!2OO=L8;!3=!T2M!=3D8B!L2M9?0
! "E!
3. Out-of-State Signature Gatherers
In Initiative & Referendum v. Jaeger, the Eighth Circuit Court of Appeals
also confronted North Dakotaʼs “residency” requirement, which permitted only
residents of North Dakota to work as signature gatherers.54 Challenged on First
Amendment grounds, the court held that because the State has an interest in
preventing fraud, and with that comes the necessary power to be able to
subpoena, if needed, those who collect signatures, the in-state residency
requirement was a narrowly tailored measure to meet that interest.55 Although
opponents of such statutory bans cite higher costs and more need to train
employees, the need to prevent fraud should trump that burden. Further, the
collateral effect of these bans keeps state and local issues within their respective
areas, which should be a welcome result. Paying out-of-state signature gatherers
to descend upon the state, work to further a special interest in which they have a
stake in the outcome, and then leave, runs contrary to the spirit of the process of
allowing state and local residents to decide state and local issues.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!54 V!&5&:-!GS"!&04;!23!F"F0!aa!*0K!!
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B. Supermajority Requirements
Sixteen states require a supermajority by the legislature in order to pass
legislation that will raise taxes or create new taxes.56 Fifteen of those sixteen
states have voted this requirement into their state constitution.57 The states have
defined supermajority as being either a three-fifths, two-thirds or three-fourths
majority vote. These states have decided that in addition to the representative
legislative filtering process already in place, a supermajority vote in both house
chambers must be met in order to raise or create taxes. Granted there have been
calls for a roll back to some of these amendments due to their consequential
effect of handcuffing state budgets, but the message from those behind the
efforts to put these supermajority requirements in place is clear: you need more
votes to get more of our money.
Unfortunately, people seem less inclined to set up supermajority
roadblocks within direct democracy, even when civil rights are at stake. Most
states that use direct democracy, no matter the issue, be it a statutory measure
or constitutional amendment, only require a simple majority for passage. And in
many states, should the legislature choose to attempt to amend the constitution
by asking the public to vote on it (all states except Delaware require a public vote
for a constitutional amendment), they must first get a supermajority in both
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!aF!i<7!Z0!$=KK72>!Y!:82C2>!:0!6=B;2>-!D9&',&"&3B&'*6/!7('.8')(!(&'4&5#;$!(#"&')B/&:6!_.:#(C'U.(#35',&`B#:&6&3(-!"1!:+',/Z#$!b/*0!,H+0!(%X0-!F!5G11E?0! 57 Id.
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chambers before it gets onto the ballot for simple majority passage by voters.58
Currently, eighteen states allow for constitutional amendment through the ballot
initiative process.59 Out of those eighteen states, only six of them have placed
some type of supermajority requirement in place.60 And out of the twenty-four
states that allow statutory initiatives, only four have placed any type of
supermajority requirement in order to pass a measure.61
As summarized in Part II, direct democracy can have very negative, long-
lasting effects on gays and lesbians. The common theme within the state and
local initiatives and referendums that strip minority groups of fundamental rights
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!58 .)#+/.)*!H/.&%(%.H%!/&!,#)#%!*%I+,*)#Z(%,-!)B/&:6!_.:#(C'U.(&',&`B#:&6&3(;1!D33TUVVLLL0>N9O0=BCVO8C<9O23[B89P8O8N3<=>9V8O8N3<=>9V9[T8B72f=B<3MPJ=38PB8_[<B878>39029TQ!5O293!J<9<38;!:2M!"1-!G1"G?0!!aE!@)**/#b%'+)-!?6&30#35')(!(&'A.3;(#(B(#.3;1'D33TUVVR2OO=3T8;<20=BCVL<`<V<>!;8Q0TDTV)78>;<>C\93238\N=>93<3[3<=>9!5O293!J<9<38;!:2M!"W-!G1"G?0!! 60 .)#+/.)*!H/.&%(%.H%!/&!,#)#%!*%I+,*)#Z(%,-!)B/&:6!_.:#(C'U.(&',&`B#:&6&3(;1!D33TUVVLLL0>N9O0=BCVO8C<9O23[B89P8O8N3<=>9V8O8N3<=>9V9[T8B72f=B<3MPJ=38PB8_[<B878>39029TQ!5O293!J<9<38;!:2M!"1-!G1"G?!5&O=B<;2!B8_[<B89!F1]!9[T8B72f=B<3M!2>;!GV4!9[T8B72f=B<3M!K=B!2>M!278>;78>39!3D23!B2<98!32Q89p!+OO<>=<9!B8_[<B89!2!4Va!72f=B<3M-!=B!2!72f=B<3M!=K!3D=98!J=3<>C!<>!3D8!8O8N3<=>p!:2992ND[98339!B8_[<B89!2!9<7TO8!72f=B<3M-!R[3!3D8!3=32O!>[7R8B!=K!J=389!N293!=>!3D8!<><3<23<J8!7[93!8_[2O!23!O8293!41]!=K!3D8!3=32O!J=389!N293!<>!3D8!8O8N3<=>p!:<99<99<TT<!B8_[<B89!2!9<7TO8!72f=B<3M-!29!O=>C!29!3D8!3=32O!>[7R8B!=K!<><3<23<J8!J=389!N293!8_[2O!23!O8293!S1]!=K!3D8!3=32O!J=389!N293!<>!3D8!8O8N3<=>p!.8RB29`2!N2OO9!K=B!2!9<7TO8!72f=B<3M-!9=!O=>C!29!3D8!3=32O!>[7R8B!=K!<><3<23<J8!J=389!N293!8_[2O!23!O8293!4a]!=K!3D8!3=32O!J=389!N293!<>!3D8!8O8N3<=>p!<>!.8J2;2-!2>!<><3<23<J8!N=>93<3[3<=>2O!278>;78>3!7[93!B8N8<J8!2!9<7TO8!72f=B<3M!J=38!<>!3L=!9[NN899K[O!8O8N3<=>9?0!F"!*0K!5:2992ND[98339!B8_[<B89!2!9<7TO8!72f=B<3M-!R[3!3D8!3=32O!>[7R8B!=K!J=389!N293!=>!3D8!<><3<23<J8!7[93!8_[2O!23!O8293!41]!=K!3D8!3=32O!J=389!N293!<>!3D8!8O8N3<=>p!.8RB29`2!N2OO9!K=B!2!9<7TO8!72f=B<3M-!9=!O=>C!29!3D8!3=32O!>[7R8B!=K!<><3<23<J8!J=389!N293!8_[2O!23!O8293!4a]!=K!3D8!3=32O!J=389!N293!<>!3D8!8O8N3<=>p!A29D<>C3=>!B8_[<B89!2!9<7TO8!72f=B<3M!J=38-!TB=J<;8;!3D23!3D8!J=38!N293!8_[2O9!23!O8293!=>8P3D<B;!=K!3D8!3=32O!J=389!N293!23!9[ND!8O8N3<=>p!AM=7<>C!N2OO9!K=B!2!9<7TO8!72f=B<3M-!TB=J<;8;!3D23!2>!27=[>3!<>!8QN899!=K!a1]!=K!3D=98!J=3<>C!<>!3D8!TB8N8;<>C!C8>8B2O!8O8N3<=>!N2938;!J=389!<>!K2J=B-!=B!2C2<>93-!3D8!<><3<23<J8?0
! GG!
is that many are passed by a simple majority. The 53.4% majority in Coloradoʼs
famous “Amendment 2,” which was the subject of Romer v. Evans, the 52.24%
majority in Proposition 8, and the 53% majority who passed Maineʼs Question 1
(the voter referendum that repealed what was the first state legislation to allow
same-sex marriage) are just a few examples of simply majorities voting to
oppress the rights of a minority group.62
If a state chooses to afford its citizenry the right to engage in direct
democracy, it must do so within the bounds of the Constitution, specifically the
First Amendment right to free political speech. The requirement of
supermajorities in direct democracy, do not, however, infringe upon the First
Amendment. In upholding such a requirement, the 10th Circuit noted that in order
to “make it difficult for a relatively small special interest group to enact its views
into law,” Wyoming had a legitimate and reasonable interest in seeing that an
initiative pass by more than a simple majority.63 The court went on to say, “If
Wyoming wanted to make it ʻharder,ʼ rather than ʻeasier,ʼ to make laws by the
initiative process, such is its prerogative.”64 The First Amendment carries with it
many guarantees surrounding the political process, specifically elections.
However, it does not guarantee political success.65
Supermajority requirements in direct democracy undoubtedly help protect
the rights of unpopular social groups, and do so within the framework of our !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!FG!(=78B!J0!%J2>9-!a"^!Z0,0!FG1!5"EEF?0!F4!@B2;M!J0!/D72>-!"a4!&04;!^GF!5"13D!H<B0!"EEW?0!FS!*0K!5,[TB878!H=[B3!;8>M<>C!N8B30?0!Fa!)&&'5&3&:!$$C!(8T[RO<N!b2B3M!=K!.=B3D!H2B=O<>2!J0!:2B3<>1!EW1!&0G;!ES4-!EF1!5S3D!H<B0!"EE4?0!
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Constitution. Therefore, it is imperative that any state allowing its citizens to enact
laws and amend their constitutions through direct democracy does so by
requiring some measure of a supermajority vote.
C. Judicial Challenges
Generally, in the interest of not disrupting the electoral process, it is the
practice of state and federal courts to hold off review of constitutional and other
challenges to a ballot measue, unless there is some showing of clear invalidity.
But what could be more invalid than a measure that infringes on a constitutionally
protected right or disadvantages an unpopular political minority? When it can be
proven that such a measure will have such drastic effects, why should citizens
opposing it have to organize, raise millions of dollars and fight tooth and nail to
defeat it at the ballot box? There is a dire need to broaden the opportunities of
concerned citizens to challenge such measures before they reach the stage of a
public vote.
The United State Supreme Court has recognized that, at times, certain
unpopular minority groups will be the target of majority faction. Carolene
Products Footnote 4 called attention to the fact that laws affecting “discreet and
insular minorities” might call for a more heightened standard of judicial review.66
In Romer, Justice Kennedy pointed to Amendment 2 and noted it was simply
“animus toward the class that it affects,” and had no rational relationship to
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!FF!Z><38;!,32389!J0!H2B=O8>8!bB=;[N39-!41S!Z0,0!"SS-!"aG!5"E4W?0!
! GS!
legitimate state interests.67 If equal protection means anything, it must, at the
very least, mean that a “bare desire to harm a politically unpopular group cannot
constitute a legitimate government interest.” As the Court in Romer spelled out,
there is no Constitutional tradition in enacting such laws. Why then, must we wait
until they are enacted to challenge them?
This essayʼs final call for reform is to open up the opportunity for pre-ballot
Constitutional challenges to direct democracy measures infringing on a
constitutionally protected right or unfairly targeting an unpopular political minority.
This “smell-test” challenge will allow citizens to proffer evidence and prove so, in
a federal court.68 Using the language of Supreme Court decisions that have
called attention to the direct target for negative treatment of certain minority
groups, courts will be able to determine that either (1) the proposed ballot
measure, if passed, will deprive citizens of or infringe upon a constitutionally
protected right (e.g. the right to marry), or; (2) the proposed ballot measure, if
passed, unfairly targets an unpopular social or political minority or “curtail[s] the
operation of those political processes ordinarily to be relied upon to protect
minorities.”69
Under the first part of this test, any ballot measure that can be proven to
have such constitutional infringements can be stricken from a ballot. Proof can be
found by comparing the ballotʼs language and overall purpose to those from !!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!F^!,.6&:1!a"^!Z0,0!FG1!23!F4G0!FW!+3!<9!TB89[78;!3D23!K8;8B2O!f[;C89-!LD=!2B8!>=3!8O8N38;-!R[3!2TT=<>38;-!L<OO!R8!7=B8!O<`8OM!3=!93B<`8!2!N=>3B=J8B9<2O!R2OO=3!7829[B8!L<3D=[3!K82B!=K!J=38B!B8T8BN[99<=>9!KB=7!2>
! Ga!
ballot measures that have been held unconstitutional by both federal and state
courts, and also those that have passed constitutional muster. If a measure does
indeed fail this first hurdle by working to strip a certain group of a constitutionally
protected right, such as Proposition 8 was held to do in Perry, there should be no
need to offer the measure up for public vote. Instead, the measure is simply
prevented from being placed on the ballot.
The second part of the pre-ballot challenge is more flexible, allowing
challengers adequate opportunity to prove potentially harmful effects the
measure is likely to have upon certain groups of people. Again, by comparing the
language of the measure, its intended effects and overall purpose with previous
measures, courts can fairly judge the outcome such measures will have. If the
measure is found to be at odds with state and federal statutes and case law
precedent intended to protect minority groups, and instead targets a group for
unfair treatment, the court will have the ability to strike the measure from ballot
consideration. Also, under the language in the second part of the test, a court is
afforded an opportunity to throw out ballot measures that, if passed, will curtail
the operation of those political processes that minority groups have historically
relied upon for protection. This is an important feature, as once a state
constitution is amended by popular vote, the only way to overrule that
amendment is through another popular vote. As a result, the traditional legislative
process and opportunity for courts to review are essentially eliminated - two
means which have provided the most protection for unpopular minority groups.
! GF!
In defending these challenges, groups supporting the measures will
undoubtedly be given the opportunity to offer evidence to the contrary. However,
should they fail, and exhaust all avenues for appeal, their specific proposal
should be barred from being placed on a ballot. Further, any future measure
similar in content and effect should be viewed under the precedent set by the
denial of the initial failed measure. In doing so, and also by following the
aforementioned challenge guidelines in full, courts can better police ballot
measures prior to subjecting the public to statewide votes that can have drastic
effects stemming not only from their passage, but also their heated campaigns.
Further, the pre-ballot challenges can, in practice, have the desired effect of
steering those seeking to pass unjust laws, along with their organizational and
financial efforts, back toward the representational form of lawmaking envisioned
by the nationʼs founders.
CONCLUSION
One must be cautious when suggesting limits on the democratic process.
However, democracy “must be something more than two wolves and a lamb
voting on what to have for dinner.”70 There is little question that direct democracy
has its place. When civil rights are at stake, however, we must look to processes
that afford more protection to those in the minority party. Representational
democracy is one of those processes. Properly implemented, the suggestions
and arguments made in Part III of this essay can be another.
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!^1!62789!@=J2B;-!4.;(',#59(;O'D9&'M&;(:B7(#.3'.8'?6&:#7!3'4#%&:(C-!444!5b2OCB2J8-!G111?0!