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Should Ballot Initiatives be Unconstitutional?

There is some discussion in a previous post about how a ballot measure, passed by a rationally ignorant electorate, the vast majority which never actually read the measure, could possible be legal. I share their disdain for the ballot. Our founders were rightfully quite skeptical of direct democracy, and one needs to look no farther than California to see how the ballot has essentially caused more trouble than it’s saved. It’s bad enough we have politicians that pass laws they don’t understand without reading them, but at least we can kick them out of office for it. Putting measures up to ballot is just a case of the elite manipulating the ignorant.

I would argue that ballot initiatives are unconstitutional under the Guarantee Clause of the federal constitution. Unfortunately, when the United State Supreme Court decided to look into the issue of whether the ballot was a violation of this clause, it weaseled out, and ruled the Guarantee Clause was purely a political matter, under the jurisdiction of the other two branches.

I do think there might be a court remedy for I-594, but I don’t believe the courts would ever strike down background checks, even for private sales. But we may have a chance in arguing the statute is overly broad, and covers too many constitutionally protected activities, such as a temporary loan of a firearm to a friend or family member, even for protected educational purposes under the Second Amendment. But I also do not believe we have enough firm case law currently to make that argument right now. For now I think Washingtonians are stuck with what the voters have done to them.

23 Responses to “Should Ballot Initiatives be Unconstitutional?”

  1. Joe_in_Pitt says:

    “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. Hence it is, that democracies have ever been found incompatible with personal security or the rights of property; and have, in general, been as short in their lives as they have been violent in their deaths”

    – James Madison, Federalist No. 10

    • Crotalus says:

      Ayup. Madison is right. To put it more succinctly, democracy is tyranny by the majority. That is why the Founders gave us a constitutional republic, with limits on the powers of government, and with certain rights of the people, enumerated. Ballot initiatives are an expression of tyranny by the majority.

  2. Stacy says:

    I don’t think ballot initiatives are a good idea, for a variety of reasons, and I’ve thought that for a long time, not just since yesterday morning.

    That said, I can’t really see how the whole notion of a ballot initiative is unconstitutional based on the guarantee clause. Just because some particular, random question is occasionally decided by direct vote doesn’t mean you no longer have a republican form of government. If the budget was on the ballot every year, that might be different.

    • Sigivald says:

      I agree on the latter half; I don’t see a republican government problem with The Ability To Sometimes Make A Law Without Intermediation.

      The general form of government and its normal operation are still entirely republican.

      (I don’t have much of a problem with initiatives, myself, despite them sometimes not resulting in what I’d prefer.

      Note that contra comments above, ballot measures are just as limited by Constitutional limits on power as legislative measures; the problem is not that ballot measures are themselves tyranny, but that the State itself refuses to admit bounds.)

  3. Neon says:

    No, they should stay and we should have a populous educated enough to understand them. Then we would be o.k. Prop. 13 was proposition started by a small group which has kept the government of CA from property taxing everyone out of their homes. Prior to Prop. 13, property taxes were doubling, doubling, every few years

    • Crotalus says:

      Uuuhhh, Kenny? Before you wax eloquent about the “populous educated enough”, that would be “populace”.

      • HSR47 says:

        I don’t know about you, but my spelling is often poor. As such, I tend to rely on technology to correct my mistakes.

        The problem I often run into is that the dictionaries built into various applications I use–particularly browsers–Aren’t always up to the task. I frequently find that they either don’t correctly interpret the word that I attempted to spell, or that they simply don’t include that word.

        Still, sometimes the problem ends up being human error: If it application suggests corrections, I still need to make the correct selection. That may work most of the time, but not always.

        Frankly, given that the last of these could easily be the case here, I’m inclined to be charitable, given that I’ve likely made similar mistakes in the past.

        Also, as an aside, there is a difference between knowledge and wisdom. As the saying goes, knowledge is knowing that a tomato is a fruit, whereas wisdom is not putting tomatoes in a fruit salad. In this case, we both understood the point central to the previous comment, and it is still a valid point regardless of Neon’s imperfect spelling.

  4. Scott Connors says:

    I-594 might very well be vulnerable on grounds of ambiguity. It is vague and self-contradictory, and it is impossible for the average person to know if their actions are legal or illegal under its provisions, therefore it would have a chilling effect on constitutionally protected behavior even if background checks themselves pass constitutional muster.

  5. Kirk Parker says:

    Someone else (wiser than I am) pointed out that I-594 might fall afoul of our notorious One Subject rule. This has been used in the past, with evil effect, by applying it hyper-scrupulously. Might as well get some good out of it.

  6. Kirk Parker says:

    Another thing: I’d love to see severability clauses made unconstitutional. We voted on XYZ as a package deal; if part of it is overturned the remaining skeleton ought to have to be revoted on.

    • Sigivald says:

      What’s the Constitutional basis for that, though?

      That sounds like a practical gripe (and one I have some sympathy for), but I can’t think of the Constitutional basis for it.

      The Constitution (of the United States, at least) does not speak to the issue at all, even indirectly.

      • Kirk Parker says:

        By “made unconstitutional”, I though it was clear that I was asking for an admittedly-unachievable amendment to the constitution. Apparently not…

  7. Alien says:

    Early in the process, so there’s much to be discovered and learned, and IANAL, but I’m wondering how not infringing on “….keep and bear…..” is not dependent upon, first, “obtain.”

  8. Arnie says:

    Wonderful post and comments! I have long known the Founders opposed democracy as the most dangerous of tyrannies at the federal level (two wolves and a lamb voting on what’s for supper – Franklin). But I never considered the Guarantee Clause as the application of that sentiment to the States – until now! Thank you for that!

    I’ve always theorized that democracy is more acceptable the more local the government (I.e., school bond issues, etc), because I could always move away if I disagreed with the majority. Moving away becomes a less practical alternative as the area of jurisdiction gets larger, and impossible at the national level (unless I’m willing to leave the land of liberty, which would be counter-productive). But, as a large land-owner, and after being out-voted by a majority comprising non-property-owning citizens to shove school bond after school bond down my throat with their attendant ever-increasing property taxes, I am starting to hope the guarantee-clause will be applied to ALL levels of government, including the smallest. After all, even most families are not run as democracies.

    Thanks for the wake-up call!

    Respectfully,
    Arnie

    • HSR47 says:

      Frankly, I’m inclined to believe that a large component of the issues regarding the increased size/scope of government stems from the vast expansion of the number of voters by lowering standards.

      On the whole, I’d be inclined to support a constitutional amendment to restrict voting to only those who actually pay into the government, or even to restrict voting only to property owners (as the founders intended).

      I say that even though the latter would likely remove my ability to vote, since the only property I have any ownership of is separated from my current residence by three states and over 350 miles.

  9. John A says:

    Depends. Ballot measures/initiatives which become law if passed are at best questionable, even if the intent is something I approve.

    OTOH, non-binding – essentially polls – should perhaps be available. Even I was upset a couple if years back when the British Foreign Minister called such a ballot question “undemocratic” when residents of Gibraltar put on their ballots a question of whether to have Spanish law (and thus police and courts) take over The Rock.

  10. rightwingwacko says:

    Rephrasing:

    There is some discussion in a previous post about how a measure, passed by a rationally ignorant legislature or congress, the vast majority which never actually read the measure, could possible be legal.

  11. Arnie says:

    Sincere question: What about State referendums on US Constitutional Amendments? Aren’t some States’ ratifications left up to the vote of the people at large, or are they all ratified by vote of the respective legislatures? Perhaps more importantly, were some States’ original ratifications of the Constitution done by popular referendum, or were they all done in conventions or legislatures. Anybody here a devotee of that type of history? I’m just curious.
    – Arnie

  12. rightwingwacko says:

    I have mostly been in favor of Citizen Initiatives, but I see your point that it bypasses the legislature and therefore the “republican form of government” guarantee. Perhaps my change of heart is partially due to 594, perhaps not.

    However Washington State actually has three forms in Citizen Initiatives with varying degrees of infringement.

    1. Initiative to the People

    The legislature is NOT involved at all. If enough signatures are gathered the bill goes on the ballot.

    2. Initiative to the Legislature

    This is really just a proposal from the people to the legislature for a law which they can approve, modify, or pass the decision on to the people. (I-594 was one of these – The legislature punted as a very similar bill was defeated two years earlier).

    3. Referendum

    If the people do not like a law passed by the legislature they can challenge it by referendum, where the people get to vote Accept or Reject.

    I should also add that once a Citizen initiative passes, the legislature cannot override or change that law except by a super majority for at least 2 years

    • HSR47 says:

      Frankly, I am inclined to believe that ballot-based initiatives should be limited.

      On the whole, I think we should be able to use them to suggest legislation to a legislature, and to repeal legislative acts.

      Thus, should the former type pass, it should function as introduction of a bill into the legislature with the requirement that the legislative body/bodies in question actually vote, up or down, on the measure as written. If the measure passes in the legislature (as any other bill would), then it should still need to progress to the executive for signature.

      The latter type should function in much the same way with the exception that it should require a super-majority within the legislature to oppose repeal. It is also debatable whether or not executive approval should be required (or, if it being required, what form it should take).

  13. Alpheus says:

    Count me as among those who have mixed feelings about ballot initiatives. On the one hand, they can be dangerous, ambiguous, etc; on the other hand, I appreciate the ability to occasionally address something that the state’s legislature refuses to address, one way or another.

    I’d have to agree, though, that so long as the ballot measures themselves are subject to judicial review, and even revision by the State legislature in some reasonable way, then it’s not a denial of republicanism. That’s still doesn’t mean that they are a good idea, though…

    Now, having said all this, ballot initiatives are like rules in general: sometimes they are just neutral. They can be used for good and for ill.

    Sarah Hoyt, for example, is looking into the possibility of repealing Colorado’s mail-in voting scheme, because she wants the voting system to be more fraud-proof.

    I have been curious about the possibility of using Utah’s ballot initiative system to see if we could use it to finally get Constutitional Carry. (This year, something approximating Constitutional Carry limped to the Governor’s desk, and was then vetoed.)

    Above all, I don’ think it’s a good idea to change a rule because you got a bad outcome, though, unless it’s clear that the rule itself is flawed. Ever since we’ve thrown out Senator Bennett, for example, there have been calls to reform the Caucus system–but such reforms would have been no guarantee that Bennett would have stayed in office. Massachussetts changed how interim Senators get appointed–they didn’t like the idea of a Republican (Mitt Romney) appointing a Republican Senator to replace Ted Kennedy when he died; when Kennedy finally died, a Democrat governor presided over the electorate electing Republican Scott Brown to the seat.

    It’s equally annoying to see about how aweful it was when Gore got the popular vote, but lost the Electoral College, so we need to get rid of the Electoral College…but when Kerry only needs Ohio’s votes to become President (without the popular vote, by the way), then please oh please oh please oh please go my way, Ohio!

    You can’t have it both ways! (And when you see lamentations like that, it shows that all the one party cares about is to have power at all costs…)

    • Alpheus says:

      Oh, and for the record, when something gets killed by a technicality (such as, potentially, I-594, for not being hyper-uni-subjecty enough) the cry always seems to be, “How evil! We can’t have these judges smite our democratically established laws! Get out the tar and feathers!” and never, “Oops, we missed up, didn’t we? Well, darnit, we’ll have to start from scratch!” unless it (potentially even simultaniously) would have overturned I-591, on the same basis, in which “We’re glad that judges listen to reason!”

      To be fair, it’s possible to be thouroughly convinced of the Constitutionality of your position (and the lack thereof of your opponent), but sometimes it’s just blatant hypocritical “I’m going to get power over you no matter what” power-mongering.

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