Should policy change be passed through voter initiative referenda?

voteCan policy issues be addressed through referendums?

Yes — Substantive policy issues can be address by referendums

Nathaniel Persily, Institute for Government Studies, 1997 (MICHIGAN LAW & POLICY REVIEW, v. 2, p. 14) The referendum, according to the Progressive magazine, The Arena, which promoted it at the turn of the century, entails “the referring of a law or ordinance or any specific question to the people for decision at the polls.” Most state constitutions require a referendum for Constitutional amendments and for legislation in certain issue areas, such as chartering a new city, expanding suffrage, exceeding the debt limit or changing the location of a state capital. In addition to these “mandatory referenda,” legislators, depending on the state, may choose to delegate in an “optional referendum” any given issue or policy choice to the electorate for either a binding or merely advisory poll. Finally, a provision enabling a referendum specifies a certain percentage of the electorate (between five and fifteen percent of those voting in the previous election) needed to demand a referendum within a certain period of time (usually 90 days) after the legislature has passed judgment upon the law. As one writer during the Progressive era described it, the referendum allows the voters to correct legislative “sins of commission” while the initiative remedies “sins of omission.”

Do referendums support democracy?

Yes — Resolving policy issues through referendums would support global democratization

David Magleby, political scientist, 1995 (COLORADO LAW REVIEW, Winter, p. 40 The United States is one of only five democracies which has never held a national referendum, but interest in a national initiative grew during the 1970s, its principal advocates being Senator James Abourezk (D‑SD) and Representative Jack Kemp (R‑NY). Kemp also made the initiative a topic in his campaign for the presidency and referred to the process in his book An American Renaissance: There are stronger democratic processes in the United States than almost anywhere else in the world, but I think we have learned in this last decade that we could have used more. The time is right, I think, for the United States to take the lead in a fresh global wave of democratization that demonstrates the efficiency of government forms that rest on the wisdom of ordinary citizens. The most fundamental change we could make, I think, is to provide for a national initiative

Will citizens participate in referendums?

Yes — Citizens will use referendums

Dane Waters, Initiative and Referendum Institute, 2001 (CITIZEN LAW‑MAKING IN DEPTH, There is a long and rich history of the citizens utilizing the initiative process in this country (a complete listing of initiatives that have appeared on the ballot since 1904 and that will be appearing on future ballots is available at and

Yes — Many states use referendums

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 408) Part II examines the politics of direct democracy, showing that such measures have increasingly become an important, distinct political forum. Initiatives and referendums are entrenched in the civic culture of many states. With the rise of new politics, direct democracy has evolved from its grass roots beginnings.

Are voters intelligent enough for referendums to produce good policy change?

Yes – voters are not incompetent

Direct Democracy Organization, 1997 (DIRECT DEMOCRACY FAQ) The incompetence argument has a long historical pedigree. Once it was used against voting rights for women, for workers, for non‑whites and so on. After these groups had obtained the right to vote, the argument proved to be completely worthless, and everybody forgot quickly about it. In Switzerland, the same could already be said about direct democracy. Nobody in Switzerland is arguing, that the people is incompetent to decide directly. The incompetence argument can not be used selectively against direct democracy; it is basically an argument against democracy in general. Firstly, when people are judged wise enough to discriminate between good and bad leaders or representatives, they are certainly also wise enough to decide directly on important issues. This is a matter of sheer logic. If I am supposedly able to judge the capacity of a candidate to make good laws, I must be able myself to discriminate between good and bad laws. Secondly, the incompetence argument already presupposes that there is an elite, that has the capacity to make a judgement on the competence of the people, and that has the right to decide in what way the people should be allowed to vote. These presuppositions are already anti‑democratic, because the so‑called elite has no mandate whatsoever to formulate a judgement and to make a decision about the way people should vote. From a democratic point of view, direct democracy should be introduced if the majority of the people wants it. Even if the voters would tend to make dangerous or mad decisions, it would remain completely unclear on what grounds they should be denied direct decision power if they want it.

Yes – People will vote properly

Direct Democracy Organization, 1997 DIRECT DEMOCRACY FAQ, But people do not vote madly. I quote from Thomas E.Cronin (‘Direct democracy The politics of initiative, referendum, and recall’ Twentieth Century Fund 1989): “Early opponents of direct democracy speculated that direct legislation processes would beget a torrent of unsound and radical legislation, but this has happened infrequently. Students of the initiative in some states claim that conservatives have often used the initiative and referendum to thwart progressive legislation. Yet the expected threat of demagoguery has not materialized. Liberal and conservative measures appear to win with about equal frequency, apparently depending on shifts in the voters’ mood and the degree of change involved. Voters appear to exercise caution in the case of extremist or radical measures, left and right (p.85) Voters who do vote on ballot measures do so more responsibly and intelligently than we have any right to expect. Voters can make rational decisions at the voting booth; they can discern costs and benefits and the various trade‑offs often involved in ballot issues (p.89)”. Moreover, representatives can also produce wrong decision: “Critics of direct legislation frequently have a view of state legislators that borders on the mythical: highly intelligent; extremely well informed; as rational as a virtuous, wise, and deliberative statesman; and as competent as corporate presidents and university professors. These same critics tend to view the people as a ‘mob’, unworthy of being trusted. Yet the people, or so‑called mob, are the same persons who elect legislators. How is it that they can choose between good and bad candidates but cannot choose between good and bad laws? (p.87) …the Supreme Court has overturned at least 1,000 laws passed by state and local legislatures on the grounds that they were unconstitutional ‑ additional evidence that state legislators do not have a monopoly on wisdom, rationality, or virtue (p.89)”.

Does Direct Democracy Threaten Minorities?

No – Direct democracy does not threaten minorities

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 422) In the mid‑1980s, analysts responded to charges made by Bell and others. Political scientists Joseph Zimmerman and Thomas Cronin minimized the impact of direct democracy on the democratic citizenship rights of minorities. Both asserted that Americans’ civic nature was to be fair‑minded and implied that Bell’s critique was an overstatement of strife in America. Legal analyst Clayton Gillette applied a rational choice model and argued that the threat of direct democracy to minorities was overstated because majorities will encounter collective action problems and transaction costs that will deter group voting.

No – Referendums will not cause discrimination against those with HIV/AIDS

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 434) In contrast with the anti‑gay civil rights initiatives, AIDS initiatives have generally not been successful. Only two out of the five initiatives surveyed passed. AIDS initiatives that would “quarantine” or otherwise exclude persons with AIDS from normal social interaction and ban them from employment have all failed. By contrast, Concord, California passed a referendum that repealed anti‑discrimination protections, which is a less radical proposition.

No – Direct democracy does not threaten minorities

Direct Democracy Organization, 1997 (DIRECT DEMOCRACY FAQ, Again, the same standards should apply to representative democracy and to direct democracy. Representative democracy often produces discrimination of minorities. In my own country, we have to struggle against the tendency of the Flemish parliament, that wants to impose restrictions (the so‑called ‘indtermen’) on schools that would render Waldorf education virtually impossible; in December 1996, the Supreme Court (‘Arbitragehof’) has overturned a law to this effect. There is no evidence that direct democracy leads to stronger discrimination of minorities. In 1978, a proposition that would have allowed school districts to fire homosexual teachers was defeated in California. A very interesting example occurred in Utah. An initiative against distribution of obscene or indecent material by means of cable television was rejected, although the Mormons, with their strict moral standards, have a 75% majority in this state. The voters, although Mormons, rejected the proposition because it implied increased government interference with individual rights. Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 462‑3) The discussion of initiatives in Part III.B supports Cronin’s and Zimmerman’s contentions that Americans resist radical movements that disadvantage minorities. The AIDS quarantine initiatives were defeated in California. Similarly, the more radical form of initiatives resisting school desegregation was defeated in Arkansas. In addition, the more extreme versions of anti‑gay initiatives, such as Oregon’s equating homosexuality with pedophilia, went down in defeat. Arizona’s more extreme English‑only constitutional amendment initiative, recently struck down in Ruiz v. Hull, passed by a narrow margin, compared to the three‑to‑one margin that California’s more moderate English‑only initiative enjoyed. Finally, polling showed much greater support for anti‑affirmative action measures when they were framed in terms of denying groups special rights than when presented in a more radical fashion as a prohibition on affirmative action. Based on this evidence, it can be asserted that Americans tend to vote against initiatives that are patently unfair toward a minority group.

No – Voters will vote in the public interests

Direct Democracy Organization, 1997 (DIRECT DEMOCRACY FAQ) Voters are able to make decisions from the viewpoint of public interest, even if it costs money. “Two recent examples may serve as illustrations: In March 1993, Swiss citizens voted on a referendum about increasing the petrol tax in Switzerland. Even though this proposal is bound to burden almost each voter’s purse, it was accepted. In June 1993 the Swiss had to decide whether they wanted to support an initiative stating that the government is not allowed to buy any new military aircraft until the year 2000. The proposal, if accepted, would have saved a lot of public money. It was, however, defeated” Here too, direct democracy should not be compared to some heavenly ideal, but to the practice of representative democracy. In a purely representative system, such as the Belgian one, decisions are often made not in function of public interest, but in function of the interest of those pressure groups or economic forces, that have good access to the center of state power.

No – Voters will vote to protect minorities

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 465) First, majorities will not tolerate extreme expressions against minorities. Any anti‑minority initiative or referendum must be phrased within parameters that permit majorities to articulate that the reasons they voted against minority’s interests cohere around acceptable ideological frameworks.

No – Formulation of the issue will not hurt minorities

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 466 Fourth, many initiatives are formulated as abstract propositions which appeal to majority ideologies. Should English be the language of schools and government? Should we do away with preferences? Should gay men and lesbians obtain “special rights”? These are direct appeals to key ideologies that most Americans share. Would majorities continue to vote anti‑minority results consistently if they were to recognize that their vote can and is interpreted as a rejection of minority’s self and their sense of belonging in the polity? For those like Bell, who believe that the data show that majorities vote on the basis of racial/homophobic/ethnocentrist feelings, the answer would be that anti‑minority results would continue. For those who see more mixed and unclear results, there would be hope that such appeals would curb latent racial/homophobic/ ethnocentrist resentments.

Yes – referendums will not protect minorities

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, pp. 402-3) A distinct new trend in democracy has emerged in the last decade. Direct democracy measures, specifically initiatives and referendums, are increasingly being used to address problematic and complex issues that affect the citizenship rights and status of minorities. Thus, such powerful states as California, Colorado, Oregon, Washington, Arizona, and Florida have recently become battlegrounds for direct voter consideration of controversial issues including proposed imposition of “English-only” requirements in the public workplace, placement of sharp limitations on the use of affirmative action, restriction of anti-discrimination protections afforded to gay men and lesbians, elimination of benefits to illegal immigrants, n6 and imposition of limits on bilingual education.

Yes – Referendums will not protect gay rights

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 429) Close to four-fifths of the reported forty-eight anti-gay civil rights initiatives have sought to repeal or prevent the enactment of anti-discrimination legislation that would include gay men and lesbians as a protected category. These have been successful over 85% of the time. If we focus only on state-wide initiatives, the number drops to eleven, and at this larger jurisdictional level, the success rate drops to about 64%. Colorado’s Amendment 2, overturned in Romer v. Evans, is an example of this kind of initiative, which effectively prevented any attempts by gay men and lesbians to petition local government for anti-discrimination legislation.

Yes – referendums undermine civil rights

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 430 The victory in Dade County signaled to religious and cultural conservative groups that the American voter was receptive to a morality-driven message and that coalitions could overturn civil rights gains made by an unpopular minority group. In Dade County, Anita Bryant and her supporters had developed a grass roots blueprint for a strategy that could and would be repeated by cultural conservative groups elsewhere. Gay civil rights gains could be effectively combated when cultural conservatives framed such gains in “family values” terms, such as threatening children. Once this theme was established, the campaign could appeal to latent homophobic ideology and cast gay men, in particular, as a per se threat to children. The Dade County campaign showed that groups, to which no political appeal had been made in the past, could be moved into almost militant political activism if the issues were framed as involving general societal decency. Anita Bryant was credited with “awakening” apolitical religious conservatives.

No — Direct democracy undermines minority interests

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 425)

These data show that direct democracy, for the most part, has been an important lawmaking mechanism that has decreased the content of, or staved off advances in, minority rights. As Gamble puts it, the data over this entire period show that although minorities do not always lose in these ballots, they almost always lose. In the eighty-two initiatives and referendums surveyed in this Article, majorities voted to repeal, limit, or prevent any minority gains in their civil rights over eighty percent of the time. These aggregated results seem to validate the criticism of direct democracy leveled by Bell.

N0 — Referendums won’t protect immigrants

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 448) Academic work has tried to explain why the anti-illegal immigrant measure proved more successful in California than elsewhere. A key point is made by a recent empirical study. Illegal immigrants are among the most unpopular groups in the American electorate, sharing this dubious distinction with gay men and lesbians, black militants, urban rioters, radical students, and Palestinians. However, unpopularity is only one component of three necessary requirements to trigger group prejudice (“an attitude toward a category of people”). Psychologist Fred Pincus states that there also must be a belief/ideology about that group, a triggering of emotional feelings, and a motivation to behave a certain way toward that group.

No — Prejudice undermines direct democracy

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 464 In the last two decades, social science has shown that prejudice as we once knew it-blatant, violent, close, and direct-is no longer the norm in how whites express what social scientists still call “prejudice” or “racism.” Nonetheless, prejudice of various kinds continues to exist and plays a role in the anti-minority initiatives. Professor Young-Bruehl’s recent exhaustive study instructs that we should think and speak of prejudice in the plural, as prejudices, because attitudes and ideologies that create prejudice differ with respect to each unpopular group

No — Referendums exclude minorities

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 508) Fourth and most important, cultural-ideological initiatives set up a scenario where majorities cast votes on the minorities’ very membership in the polity, and where the minorities almost always lose. Such losses can have a severe and detrimental effect on the minority group members’ feelings as to whether they are accepted members of the polity. Votes are deeply symbolic and are important civic statements. Thus, while majorities may believe (and tell themselves) that they are voting in a simple political ideological contest, and while many in the majority may harbor no feelings of resentment or prejudice towards minorities, those who lose interpret this vote far more dramatically. The ideological issues presented to the voters, who vote yes or no, contain no room to allow majorities to qualify their vote. For the predictable losers, minorities, the “political” loss is also a civic loss. It is experienced as a rejection of self, their way of being and knowing, and their membership in the polity. The majority, through a vote, can even create “castes” as alluded to in Romer v. Evans. In this respect, the power of the state is usurped for self-serving purposes. Yet, a polity made up of fundamentally unlike groups, majorities and minorities, must be able to co-exist and survive deep disagreement. This cannot happen when majorities can use the political process, in a public and powerful way, to reject one segment of the polity and take away from them a sense of themselves. The results are alienation and fragmentation. They are far- reaching and deeply impacting. Initiatives and referendums can lead to unintended, but permanent, results: the exclusion in some significant way of minorities from the polity.

No — Referendums undermine minority participation rights

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 522) Referendums and initiatives may also harm minorities with respect to their civil participation rights, albeit somewhat less directly, to the extent that they stigmatize those minority group members. Minorities who have been stigmatized may not literally be precluded from participating in the polity. However, stigmatization may indirectly have a negative effect on minority participation in two ways. First, stigma may alienate minority group members, causing them to feel as if it is no longer worth participating in the polity. As the Court famously recognized in Brown v. Board of Education, the mere act of separating out members of one group may itself cause serious harm. When laws are used to create a legal class out of an unpopular group, the law becomes part of the majority’s expression of hostility toward the minority group, making the harm that much more emphatic. Second, the stigmatization of minority groups through state laws may reinforce and encourage the majority to regard those members as non-equals, and even inferior to themselves. The harm is not just corruption of the democratic process; it is also the loss of minorities’ continued meaningful participation in the polity.

No — Referendums undermine minority participation

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, pp. 472-3) Direct democracy is not problematic merely because mathematics dictates that minorities will lose on many issues, including those issues about which they care the most. Rather, in all the cases that we have reviewed, issues that trigger majority group thinking are issues directly related to a minority group’s status in the polity. Thus, majorities vote on the content of minorities’ democratic citizenship standing. Does citizenship entail for minorities, as well as majorities, the privilege and benefit not to be discriminated against in housing, employment, and public restaurants? Should unpopular minorities, such as illegal immigrants, be denied access to benefits of government and education, which other citizens enjoy? Should language minorities accept that American citizenship means that all public discourse must be conducted only in English, the language of the dominant majority, to the exclusion of their own language? Should equal opportunity mean that governments cannot take into account minorities’ pre-existing and existing unequal status? Majority-minority initiatives, as we currently know them, constantly put to a test what are to be those minimum rights of co-participants that we believe that all citizens should enjoy, both majorities and minorities.

No — Referendums alienate minorities

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 473) Something happens to the fabric of the polity, the civic relationship between majorities and minorities, when anti-minority initiatives succeed. Business does not go on as usual. These initiatives are structured as yes/no propositions that in the voting booth become referendums on minority’s membership in the polity. In Miami, in the aftermath of English-only, Cuban Americans felt rejected from civic life because in fact they had been rejected. In Colorado, after Amendment 2, gay men and lesbians called for a national boycott of their state. In California, in the aftermath of Proposition 187, Mexican Americans, in particular, have been further racialized by the heightened hostility to “foreigners” and those who look and act foreign. In the proposed test articulated in Part V, I will argue that it is appropriate for the Court to consider these alienation and stigmatization effects.

No –Referendums won’t incorporate the votes of the poor

David Magleby, political scientist, 1995 (COLORADO LAW REVIEW, Winter, p. 34) It is well documented that turnout is lower for less educated, poorer, and younger voters. Voting on ballot propositions only amplifies the social class bias in participation, because those with lower incomes or less education tend to skip voting on ballot questions at much higher rates. Those who do participate are more likely to confuse their vote on the ballot question from their position on the issue being decided. Even on issues of direct relevance, such as a graduated income tax in Massachusetts, one-third of the voters in the lowest quartile of income reported that they would skip voting on the measure because the ballot was too long and difficult to understand.

Will Referendums be Coopted by Interest Groups?

No — Referendums will not be coopted by interest groups


Progressive Era reformers designed the initiative process around the turn of the century to circumvent the power of wealthy economic interests in the state legislature. Today, many observers argue that the initiative process has been captured, paradoxically, by those very sorts of special interests. Elisabeth R. Gerber, however, provides compelling evidence to the contrary in Interest Group Influence in the California Initiative Process. Her analysis indicates that economic groups do not have the unbridled influence commonly claimed by critics of this form of legislation. Economic groups are generally unable to enlist the sympathy of a sufficiently large number of people to pass new laws through the ballot box. In fact, vast sums of money poured into a campaign by special interest groups, such as the insurance or tobacco industries, may be self‑defeating, suggesting to voters that the proposed legislation is unlikely to be in their own best interest. Hence, economic groups’ use of the initiative process is largely limited to blocking measures or to signaling their preferences to the state legislature. In contrast, citizen groups, which often deal with social issues that involve strong emotional appeal and which rely on a coalition of support from many diverse interests, have a relatively easier time passing ballot measures.

No — Economic interests are limited by the referendum process

Public Policy Institute of California, 1998 (HOW INTEREST GROUPS USE THE INITIATIVE PROCESS IN CALIFORNIA, Despite their vast monetary resources, economic interests are severely constrained in their ability to pass new laws through the initiative process. They use the process most often and most effectively to fight ballot propositions they oppose. However, interest groups (whether citizen groups or economic groups) may also use the initiative process to influence policy in more indirect ways. For example, they may use the process to signal to policymakers their preferences on certain issues. Thus, the initiative process provides economic groups with an additional tool for augmenting their already substantial influence in the legislative process

Are Referendums Democratic?

Yes — Referendums are direct democracy – most pure form of participation

K. K. DuVivier, Law Student, Colorado Journal of International Law and Policy, 2000 YEARBOOK, 2000 COLO. J. INT’L ENVTL. L. & POL’Y 25, p. 30-1 Ballot initiatives are a form of direct democracy. Through an initiative, citizens can vote directly on a statute or constitutional amendment, circumventing the legislative process. Sometimes an issue is too politically sensitive to get legislative support; sometimes the legislature is deadlocked; sometimes moneyed interests dominate the political process: in these situations, the initiative provides alienated voters with a new choice. It gives individuals a sense of control and purpose that they may not experience in electing a representative. When a voter chooses a representative, that representative may or may not agree with the voter’s position on a particular issue. The voting process becomes more personalized when the voter can voice his or her exact sentiments on specific issues by voting on an initiative. Not only do citizens vote directly on initiatives, but initiatives are created and placed before the electorate by citizens rather than by representatives. Any individual or citizen group can draft its own initiative. Next, the initiative is printed up on petitions, and if enough signatures are gathered, the measure is then placed on the ballot.

Yes — Referendums are critical to protect democracy

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 506) The case has been made in Part II that direct democracy is an important and vital vehicle of political expression. It acts as a check on legislatures and representatives that may have become too entrenched and disconnected from those who they are supposed to represent. Direct democracy is also a vehicle by which the electorate can send messages to their representatives stating that the way that they are conducting the business of government does not meet with the voters’ approval. Sometimes, for better or worse, direct democracy broaches subjects that have been taboo with representatives. Lastly, direct democracy is viewed by the people of major Western states as being a vital institution of their civic expression. For these reasons, the institution of direct democracy has a place in democratic lawmaking.

Yes — Referendums are an important means of direct democracy

Jeffrey Even, JD, 1996/7 (GONZAGA LAW REVIEW, v. 32, p. 256) At this juncture in constitutional history, it would be astonishing if the courts were to suddenly announce that the Guarantee Clause prohibited or severely restricted the ability of the people to exercise a legislative function they have utilized for nearly a century. Resorting to such legal realist logic is perhaps philosophically unsatisfying, but accurately reflects the historic fact that initiatives have been an important avenue for popular democracy for so long that their role in our institutions of republican government has attained a status of received knowledge.

No – Referendums cause legislative vote ducking

David Magleby, political scientist, 1995 (COLORADO LAW REVIEW, Winter, p. 21) Politicians in several initiative-prone states have discovered the same dynamic. Candidates for governor in California now regularly sponsor their own initiatives during their gubernatorial campaign, as Pete Wilson’s strong support of Proposition 187, Illegal Aliens. Ineligibility for Public Services. Verification and Reporting, illustrates. Jerry Brown’s involvement in the political reform initiative of 1974 helped him win the Democratic nomination in a crowded field, his successor George Deukmejian sponsored the ” Victim’s Bill of Rights,” and Pete Wilson promoted an initiative on criminal justice reform. Two of Wilson’s Democratic opponents in 1990, Diane Feinstein and John Van de Kamp, sponsored initiatives. In 1992, the governors of Colorado and Michigan actively supported ballot initiatives. State legislators have also turned to the initiative to promote issues they cannot get passed in the legislature. The temptation to pursue legislation in the public arena not only diverts legislators from the work of the legislature, but encourages legislators to duck tough issues and “let the voters decide.”

Yes — Referendums ensure the values of the people are protected

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 506)

John Rawls provides another normative framework based on democratic political values. For Rawls, judicial review ensures that laws, whether products of legislatures or direct democracy, reflect the fundamental values of the people. As the passage at the beginning of this Part indicates, the Court should ensure that, in the give and take of pluralist politics, voters do not enact laws that do not give a good account of themselves. Instead, in making law through initiatives, referendums, or the legislative process, we must observe the foundational democratic principles of co‑equality and co‑participation. Rawls defines these as among the minimum conditions that free individuals would choose for themselves in a democratic polity with no pre‑commitment to any system of justice.

Yes — Referendums are the most direct form of democracy

Nathaniel Persily, Institute for Government Studies, 1997 (MICHIGAN LAW & POLICY REVIEW, v. 2, p. 12) Owing to the system of state political institutions outlined in the Progressive Era the courts stand as the singular check against electoral majorities for referenda and initiatives. The renewed use of the tools of direct democracy in the 1990s portends even more frequent clashes between the ultra‑democracy of direct legislation and ultimate anti‑democracy of an unelected and, at the federal level, virtually unremovable judiciary.

Yes — Referendums are critical to democracy

Direct Democracy Organization, 1997 DIRECT DEMOCRACY FAQ, The initiative is the cornerstone of direct democracy. Without the possibility of the initiative, there is no direct democracy in any real sense (and even no democracy at all, if the majority of the citizens want direct democracy). However, there are other important instruments that supplement the initiative, for instance recall and referendum.

No – referendums do not support proper deliberation

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 414) At the same time, direct democracy initiatives have been the subject of substantial criticism by political scientists: complex issues are presented to the voters on a yes or no basis without the benefits of deliberation and without the check of representatives having to be accountable to the interests of others. Julian Eule has persuasively argued that the agency obligations and accountability of representative democracy militates against self interest and careless decisionmaking, while direct democracy fails to “filter” out the passions evident in direct democracy. Others, like David Magleby, have emphasized that the analytical process surrounding initiatives is distinctly “bounded” in its rationality in ways that representative bodies clearly are not. In direct democracy, voters do not have the time or motivation to work through the implications of a proposal. Studies show that voters often are confused or fail to understand the full implications of their vote. Voting falls off as the ballot lengthens, indicating that voters may not even be sufficiently motivated to read through the ballot. Elites (high income, high education, interested in politics) are more likely to vote on initiatives and referendums than are other citizens, including those alienated from government-the group to which direct democracy is said to be directed.

No – referendums are manipulated by demagogues

Jeffrey Even, JD, 1996/7 (GONZAGA LAW REVIEW, v. 32, p. 253) This does not mean, however, that no controversy surrounded the adoption of direct democracy as a supplement to representative institutions. Arguments against it included predictions of radical legislation and demagogues manipulating popular sentiments. Other concerns included the fear that special interest groups would dominate measures including technical issues, and that direct legislation would compromise the interests of political or social minorities.

No – referendums limit liberties

David Magleby, political scientist, 1995 (COLORADO LAW REVIEW, Winter, p. 43) Direct legislation, and direct democracy more generally, differ from representative democracy not only in the types of institutions and processes they prescribe, but in the political values and ends they foster. The initiative and popular referendum value widespread participation, open access to the political agenda, and political equality. Representative democracy and the legislative process foster compromise, continuity, and consensus. Moreover, legislatures and representative institutions generally are more insulated from fluctuations in public opinion and from groups that would seek to limit fundamental freedoms or liberties.

No – referendums ignore intensity of opinion

David Magleby, political scientist, 1995 (COLORADO LAW REVIEW, Winter, p. 44) Direct legislation also does not permit an assessment of the intensity of opinion held by those who vote “yes” or “no.” All votes are counted equally, but some voters may feel much more strongly about their opinion than others. In the legislative process, legislators routinely calculate and communicate the intensity of each others’ opinions. Moreover, minorities, while not able to prevail on their overall decision on many matters, can influence the content of measures during the process itself. Lynn Baker has used public choice theory to explore the question of whether minorities do better in representative institutions than in direct democracy. She refutes “the claims that racial minorities are better served by representative than direct law-making processes” and urges minorities to focus on ways to improve direct democracy rather than abolish it.

No – referendums undermine the legislature

David Magleby, political scientist, 1995 (COLORADO LAW REVIEW, Winter, p. 45)   Moreover, direct legislation may only worsen the problems of representative government. Lucinda Simon has argued that “[i]n many states, the legislature is actually being ignored — and circumvented. While futurists romanticize the virtues of direct democracy, the key institution of representative government — the legislature — is under attack through the use of the initiative, referendum and recall.”

Is Direct Democracy the Best form of Democracy?

Yes — Direct democracy is critical to freedom

Nathaniel Persily, Institute for Government Studies, 1997 (MICHIGAN LAW & POLICY REVIEW, v. 2, p. 41) This potential did not escape the framers of the United States Constitution who, fearing majority and minority tyranny equally, sought to create checks and balances against the aggrandizement of power by either. In particular, James Madison warned that “a pure democracy … can admit of no cure for the mischiefs of faction. 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 or an obnoxious individual.” The proposed solution ‑ a tripartite division of power wherein “ambition would counteract ambition” ‑ was “Progressive,” if not radical, for its time. However, the framers admitted the inherent tension between representation and democracy ‑ a tension which underlies the current and former wave of citizen‑initiated legislation. Madison wrote: If men were angels, no government would be necessary…. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is no doubt the primary control of the government; but experience has taught mankind the necessity of auxiliary institutions.

Yes — Direct democracy is critical to political life

Jeffrey Even, JD, 1996/7 (GONZAGA LAW REVIEW, v. 32, p. 290) During the Progressive era, Washington added two key powers of direct democracy to the state constitution: the initiative and referendum. Since that time the legislative power of the state has been exercised jointly by the people directly and by their elected representatives. This sometimes complex inter‑relationship has become a fundamental component of the political life of the state and its people.

Yes — Direct democracy avoids interest group politics

DEMOCRATIC REFORM NEWS, 1996 ( The mainstream media, with its myopic focus on the phony emotional issues raised by the candidates of “the two‑party system,” have entirely missed Ross Perot’s proposal that Americans vote on basic questions of national policy. It is an idea that will not become part of the national dialogue unless (1) President Clinton agrees to meet Ross Perot in a series of debates, (2) the major commercial TV networks can be persuaded to end their blackout of the Reform Party candidate, or (3) Mr. Perot finds a way to do successful guerrilla marketing of his ideas ‑‑ through a tour of college campuses perhaps. The later idea would produce press coverage if Mr. Perot succeeds in selling young voters on the need for reform. The idea of national referendums squarely addresses what should be the central issue of the 1996 election ‑‑ Will the American people continue to allow those who financially back the two‑party system to decide important questions of public policy? Ross Perot argues that questions concerning the fundamental direction of public policy should be put to a vote by the American people. This idea has evolved into a formal proposal, made by Mr. Perot on the PBS “Newshour” program last night, that the United States adopt Swiss‑style national elections to achieve a consensus on major policies, like the tax system, that should reflect the principles and beliefs of the American nation rather than the ideas of a self‑selected elite.

Is Direct Democracy Coercive?

No — Money won’t buy a “yes” vote

WASHINGTON POST, 2002 (November 6,‑srv/zforum/02/sp_politics_waters110602.htm)

With all these various voter referendums each year, I wonder: is this really an effective way to decide public policy? I look at some of the questions put before the public on these initiatives, and often they are extremely complex. More often than not, it seems whichever side has the better financed campaign, and the better sound bite, wins. M. Dane Waters: The research shows that you can’t buy a yes vote no matter how much money you have. Money is key, however, at defeating a measure.

Yes — Representative democracy is coercive

Michael Klarman, Professor of law, Research Professor, University of Virginia, 1996 (VIRGINIAN LAW REVIEW, p. 343) Although interest representation and electoral coercion are distinct in this way, however, they are far from incompatible. The goal of both devices is the same: to ensure that representatives act according to the interests of a majority of their constituents. Electoral coercion promotes this goal by giving legislatures unique incentives to act in this way, while interest representation promotes this goal by selecting legislators with the same incentives to act in this way that their constituents have. And both mechanisms can be implemented simultaneously through the electoral process. In voting for a representative, we are telling her to act in our interests under threat of losing her job; we also are selecting the representative we believe is most likely to represent our interests even absent this threat. As such, interest representation serves in a representative democracy as a complement, and perhaps as a supplement, to electoral coercion.

No — Referendums are critical to check the power of abusive legislatures

Dane Waters, Initiative and Referendum Institute, 2001 CITIZEN LAW‑MAKING IN DEPTH, For 100 years, the initiative and referendum process has been the critical tool to check the power of unresponsive and unaccountable government at the state and local level. Governor William Janklow of South Dakota O the state that has the distinction of being the first to adopt statewide initiative and popular referendum O had this to say about the process, “it is a tool of true democracy to allow citizens to participate directly in making the laws that affect their lives. People can define and decide the issue themselves if their elected officials aren’t doing things to their satisfaction.”

No — Referendums reduce the influence of abusive political parties

David Magleby, political scientist, 1995 (COLORADO LAW REVIEW, Winter, p. 17)

Other direct democratic devices that expanded the role of citizens include direct election of U.S. senators, the direct primary, the recall, and women’s suffrage. Advocates of these devices wanted to limit and reduce the power of political parties, state legislatures, governors, city councils, and mayors, which they thought were dominated by a corrupt party system. To reduce the influence of state legislatures on national government, reformers enacted the direct election of U.S. Senators; to reduce the power of political parties generally, they enacted the direct primary; to remove party politics from local government, they enacted nonpartisan local elections; to remove officials from office, they enacted the recall; to limit the power of state legislatures, they enacted the popular referendum; and to put the voters in the position of enacting reforms and other legislation, they passed the initiative.

Are referendums superior to the normal legislative process?

Yes — Referendums are a superior decision-making process

David Magleby, political scientist, 1995 (COLORADO LAW REVIEW, Winter, p. 38) On ballot propositions, voters must decide their vote without the benefit of party cues, candidate appeal, an incumbent’s record of successes or failures, or other candidate comparisons. The vote choice becomes what the voter perceives the ballot question to be about and how that fits into the voter’s understanding of the broader issues and implications.

Are Referendums Progressive?

Yes — Referendums energize voters – referendums promote a sense of civic activism

K. K. DuVivier, Law Student, Colorado Journal of International Law and Policy, 2000 YEARBOOK, 2000 COLO. J. INT’L ENVTL. L. & POL’Y 25, p. 31-2 Another characteristic of the initiative process is its ability to reenergize apathetic voters. Initiatives are traditionally seen as grass-roots efforts, and the initiative process aims to promote the involvement of individual citizens in government.

Yes — Referendums allow individuals to impact environmental policy

K. K. DuVivier, Law Student, Colorado Journal of International Law and Policy, 2000 YEARBOOK, 2000 COLO. J. INT’L ENVTL. L. & POL’Y 25, p. 46 Because many of the world’s environmental problems were created by the collective destructive action on the part of individuals, many believe that the solutions also lie in the hands of individuals. Some have resorted to civil disobedience as a way for individuals to have an impact on international environmental issues. Yet, the ballot initiative is a legal and potentially more powerful alternative. The ballot initiative is readily accessible to the average citizen in those states that recognize it. At best, a ballot measure may pass and become enforceable law if it survives preemption and commerce clause scrutiny. At the least, a ballot initiative, like civil disobedience, can draw attention to environmental issues and mobilize individuals and their representatives to take action. Thus, the ballot initiative can be the ideal tool for affecting a environmental change in one small corner of the earth that may make a significant difference internationally. In short, it allows individuals to act locally while thinking globally.

Yes — Referendums support progressive causes

Nathaniel Persily, Institute for Government Studies, 1997 (MICHIGAN LAW & POLICY REVIEW, v. 2, p. 20) At the turn of the century, Western legislatures, like those in the East, confronted new issues and new interest groups spawned by industrialization and internal migration. The pressures for social reform came from all walks of life ‑ prohibitionists, feminists, socialists, unionists, and farmers’ organizations, to name just a few. As a front for the ruling plutocracy, the legislature and party system, displaying its characteristic complacency, eventually could not withstand the onslaught of the new groups which rapidly diversified the political economy of the era. While the expansion of the United States westward provided a fertile historical context for direct democracy’s growth and Progressivism provided an ideological push, the interest group dynamics of the era made direct democracy necessary.

Can referendums challenge capitalism?

Yes — The current political process is corrupted by money, referendums solve

K. K. DuVivier, Law Student, Colorado Journal of International Law and Policy, 2000 YEARBOOK, 2000 COLO. J. INT’L ENVTL. L. & POL’Y 25, p. 28-9 The modern initiative process was not introduced until the late 1800s, when proponents of the Progressive movement decided that the nation’s representative form of government, with its checks and balances, was not sufficient to reign in legislatures that were either out-of-touch with citizens or controlled by special interests. One of the Progressives’ main arguments for the initiative process, still echoed today, is that elected representatives have been corrupted by the influence of moneyed interests. Another argument for the initiative process was that it forced legislatures to act when the party system reached a deadlock and the legislature became “paralyzed by inaction.”

Yes — The initiative process gives people a way to challenge capitalist interests

K. K. DuVivier, Law Student, Colorado Journal of International Law and Policy, 2000 YEARBOOK, 2000 COLO. J. INT’L ENVTL. L. & POL’Y 25, p. 34-5 The 1970s marked a growing distrust of government at the same time that more environmental regulation was becoming federalized. One of the themes of Teddy Roosevelt’s Progressive movement was to “redress[] the social, economic, and political imbalances caused by industrialization, urbanization, and the concentration of economic power within hitherto unrestrained corporations.” This theme is similar to that of many environmental groups today. Corporate globalization has contributed to an increasingly depersonalized world. The initiative process gives individuals a sense of significance and purpose. The initiative process also gives individuals the power to work around their distrust of government to address urgent environmental problems. Consequently, it seems logical that the initiative process has reentered the political consciousness at the same time that the environmental movement has gained renewed momentum.

Do Referendums Cause Social Conflict?

Yes – Referendums cause social conflict

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, p. 506) Nonetheless, direct democracy has an underside that has always been troubling. Politics, by its nature, is often heated, controversial, and contested. Part III has shown how direct democracy can evoke intergroup strife, feelings of resentment, anxiety over social change, and even prejudice in its rawest form. Sometimes these results are brought about purposefully and through the manipulation efforts of a handful of people. When these intergroup conflicts combine with ballot box lawmaking, direct democracy has the potential to seriously damage a civic fabric already frayed by the ongoing political conflicts of a polity undergoing fundamental changes.

Yes – referendums cause intergroup conflict

Slyvia Vargas, law professor, 1999 (OHIO STATE LAW JOURNAL, v. 60, pp. 506-7)

Second, the nature of direct democracy, particularly combined with the realities of modern day politics, tends to promote “we-they” thinking. Especially in those jurisdictions with no minimal substantive screening and which provide few checks on electoral politics and media campaigns, initiatives and referendums permit proponents to frame the issues to set off intergroup divisions. As John Madison famously observed, factionalist politics are more likely to plague local lawmaking processes, while a larger representative system, like the House of Representatives, would “restrain majorities from enacting oppressive measures.” Whether the breakdown is gay versus straight, monolingual versus bilingual, black versus white, or legal versus illegal, majorities are invited to think about complex issues in ways that promote “we-they” thinking. Analyses have shown the key role that intergroup tensions (latent racial tensions, anxieties, and suspicions and fears) play in motivating votes. Such “we-they” framing of issues has led to consequences that can fundamentally affect the polity, diminish the citizenship of minorities, and compromise the state’s needed neutrality in conflicts that may be as much social as they are political.