Direct Democracy and the Courts

Abstract

Who should have the last word on fundamental policy issues? This book analyzes the rise of two contenders - the people, through direct democracy, and the courts. Now available in nearly half the states, direct democracy has surged in recent decades. Through ballot measures, voters have slashed taxes, mandated government spending, imposed term limits on elected officials, enacted campaign finance reform, barred affirmative action, banned same-sex marriage, and adopted many other controversial laws. In several states, citizens now bypass legislatures to make the most important policy decisions. However, the 'people's rule' is not absolute. This book demonstrates that courts have used an expanding power of judicial review to invalidate citizen-enacted laws at remarkably high rates. The resulting conflict between the people and the courts threatens to produce a popular backlash against judges and raises profound questions about the proper scope of popular sovereignty and judicial power in a constitutional system.

Playing Politics with Sex Offender Laws: An Event History Analysis of the Initial Community Notification Laws acrossAmerican States

“…9 Public interest in punitive policies for repeat violent offenders was so pronounced following Klaas's death that California voters circumvented the legislature by proposing and ultimately enacting "three strikes" sentencing guidelines by initiative in 1994. Proposition 184 passed with 72 percent of the vote (Miller, 2009). 10 The media's role in disseminating information about and entertaining the public with crime stories significantly heightened public fear of crime in the 1990s (Proctor, Badzinski, & Johnson, 2002;Surette, 1998).…”

Anti-minority votes and judicial review

“…As outlined above, courts in California review popular initiatives after they have been approved by a majority of voters. Long judicial struggles are part of the initiative process (Miller, 2009). When voters support legal checks, they might prefer to only vote on unproblematic measures that will not end up in the courts, and thus think of pre-election review processes instead of the current post-election review.…”

“…The respective models are not presented here. Sources: Initiative and Referendum Institute, California (Miller, 2009). Grey: Invalidated by courts either partly or entirely.…”

“…Whereas California has a post-election review by its courts (Qvortrup, 2001;Miller, 2009), Switzerland only has a preelection review by its parliament, which is much less rigid and cannot be seen as a true juridical check (Christmann, 2012). In contrast to California, the long-standing tradition of directly influencing political decision making holds the position of an identifying value among the Swiss (Kriesi and Trechsel, 2008, p. 66), and politicians are thus hesitant to restrict it in any way.…”

Interest groups as multi-venue players

“…However, they tend to privilege certain venues (e.g. the administrative and legislative venues) at a single point in time (Boehmke et al 2013, Grossmann 2012McKay 2012) or focus on specific venue-transitions, such as the enforcement of accepted popular initiatives by the government (Gerber et al 2001) or the activation of courts to challenge initiatives' constitutionality (Miller 2009). These studies investigate groups' mobilization in one venue and counter mobilization in another venue.…”