Election Law Miscellany: Enforcement, Access to Debates, Qualification of Initiatives

By Lowenstein, Daniel H. | Texas Law Review, June 1999 | Go to article overview

Election Law Miscellany: Enforcement, Access to Debates, Qualification of Initiatives


Lowenstein, Daniel H., Texas Law Review


Equality was one of the founding principles of the United States of America. On the evidence of the three articles presented in this segment of the Symposium, equality works better as a founding principle for countries than for election law research. Two of the papers, those by Elizabeth Garrett' and Jamin Raskin,2 attempt to resolve election law issues by applying principles of equality. Although these authors have interesting things to say, I believe each of them goes seriously astray, for reasons that are at least in part related to their conceptions of equality. The remaining paper, by Todd Lochner and Bruce Cain,3 also goes seriously astray, but not until the last paragraph. Their paper gives brief lip service to equality as the broad topic of this Symposium, but then wisely concerns itself with empirical questions and very concrete policy issues.

Qualification of Initiatives

Elizabeth Garrett addresses the method of qualifying measures for the ballot, probably the major problem afflicting the initiative process. Garrett points out that in many states that allow initiatives, the use of paid circulators rather than volunteers has become the primary method of achieving qualification. In California, it has become the overwhelmingly predominant means.4 Garrett correctly contends that the growing reliance on paid circulators is inconsistent with the purposes of direct democracy and a problem that warrants a legislative response, if one can be found that will be effective, constitutional, and without unduly harmful side effects. However, as I shall attempt to show, her reason for condemning the use of paid circulators is mistaken and leads to a skewed analysis of the problem.

For Garrett, the problem with a qualification process that relies predominantly on paid circulators is that "well-financed entities with powerful influence in state legislatures and Congress also now dominate the domain of popular lawmaking. "5 She notes that in California, qualification of an initiative with paid circulators-the nearly universal method-will cost over a million dollars.b To her it is obvious that "at these prices, only those with access to significant financial resources can afford paid circulators. "' Thus, the initiative process is "overwhelmingly the domain of the well-financed. "8

Contemporary legal academic culture tends to be preoccupied with equality over most other values, and the general culture encourages the myth that most political processes are dominated by a small class of "wellfinanced interests" who have their way at the expense of the rest of the population. In such an intellectual environment, it is hardly surprising that Garrett leaps from the correct premise that it costs money to get an initiative on the ballot to the incorrect conclusion that the process is an exclusionary one open only to the "well-financed interests." Many of her readers will no doubt agree that the conclusion follows deductively from the premise, with no need for evidence. Certainly, Garrett is not the first to view the problem of initiative qualification in these terms.9

If "well-financed" means having sufficient financial resources to be able to pay the cost of some good, then it follows tautologically that only those who are well-financed can afford to buy the good. But whether such a definition squares with the usual sense in which we use the term "wellfinanced," and whether the term has any normative force when so defined, depends entirely on how expensive the good is. It would be fair enough to say that only individuals who are well-financed can buy a Rolls Royce, but silly to say that only well-financed individuals can buy a hamburger at McDonald's. Yet, in each case, it is true that only those who are able and willing to pay the price can have the good in question.

Garrett provides no evidence that access to the ballot for initiatives is priced at Rolls Royce rather than McDonald's levels, beyond her statement that the cost charged by professional firms to qualify a measure in California is a million dollars. …

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