Legislatures Challenging Initiative Process in Federal Courts

Those who don’t like the initiative process may have found a powerful ally in the United States Constitution. I write “may” because precedent is not on their side. But that hasn’t stopped initiative critics from making the effort to enlist the court’s support — and the courts are at least listening.

On this page, I wrote about a challenge the United States Supreme Court is taking up from Arizona on the right of voters through the initiative process to set up a redistricting commission. The challenge came from the Arizona legislature, which argued that it was exclusively the legislature’s prerogative to set up congressional districts. As in California, voters passed an initiative in the Grand Canyon state creating a citizens redistricting commission.

An earlier challenge in federal courts from Colorado argues that the U.S. Constitution guarantees to the states a Republican form of government, which some legislators say, is undone by direct democracy. I have written about the Colorado case, Kerr vs. Hickenlooper, here before.

As set forth in that previous article, “Attempting to undercut the initiative process by arguing that direct democracy violates the U. S. Constitution is as old as direct democracy in this country. In 1912, a telephone company in Oregon used the argument to challenge a tax imposed by voters. The court determined then, as it had in previous dealings with the Guarantee Clause going back as early as 1849, that what constitutes a Republican Form of Government is a political question.”

Those challenging a Colorado initiative that allows voters to affirm any tax increases claim that core legislative powers dealing with taxing and spending have been put at risk leading to what they say is a “slow, inexorable slide into fiscal dysfunction.”

Many legal experts thought the case would be dismissed because the issue was non-justiciable—meaning an issue over which the court cannot exercise its judicial authority. However, the Tenth Circuit Court agreed to allow the case to proceed.

Pepperdine University law professor Derek Muller thinks the Tenth Circuit decision will be overturned on appeal. He called the Tenth Circuit’s decision “a novel judicial opinion written on dubious legal grounds.”

Still, one has to wonder if the courts are looking for a way to subdue the initiative process.

Look at the record. The U.S. Supreme Court has agreed to hear the redistricting case. The Tenth Circuit has allowed the Colorado case to continue to the surprise of many experts. Here in California, former state Supreme Court chief justice Ronald George has been a vocal critic of the initiative process.

A key question for the courts is where to draw the line on where a legislative power is so fundamental that citizens cannot make constitutional changes through direct democracy.

Previous courts have not delved into the waters the courts labeled “political.” With increased use of initiatives by the people to legislate over the last four decades will current courts see things differently?

Joel Fox is Editor of Fox & Hounds and President of the Small Business Action Committee.

This piece was originally published on Fox and Hounds Daily.