Academic journal article Harvard Law Review

Making Ballot Initiatives Work: Some Assembly Required

Academic journal article Harvard Law Review

Making Ballot Initiatives Work: Some Assembly Required

Article excerpt

For over one hundred years, the ballot initiative or proposition (1) has been touted as a solution to some of the problems in the representative system of democracy in the United States. (2) Depending on a state's ballot initiative system, this mechanism enables citizens to make laws, to create or eliminate rights, or to amend the state's constitution through a popular vote. Popular initiatives were initially intended to allow ordinary citizens to intervene in the democratic process when their representative officials were not carrying out their wishes. (3) These proposition processes were supposed to "pour new meaning into the democratic experience" and to create a space for public deliberation. (4) Without such an opportunity, voters would be "caught up in a legislative strait jacket"; there could be "an 'informed, civically militant electorate' and 'an aroused popular conscience,'" but the limited opportunities for participation would not allow that electorate to "sear 'the conscience of the people's representatives.'" (5)

By allowing the universe of eligible voters to cast their ballots directly on a matter, instead of relying on their elected representatives to consider, advocate, and vote on behalf of the voters, the ballot initiative provides a more direct democracy. With initiatives, each person can cast his or her own vote instead of relying on a perhaps-unaccountable representative; thus, all eligible voters can participate in decisionmaking instead of only a select few. Furthermore, broader participation serves as a potential check on tyranny. (6) Finally, each person's vote is counted equally, so no one has more influence because of status or other factors.

However, even if propositions do assuage some of the problems of representation, a number of representative democracy's deficiencies are, at their core, problems inherent in the electoral system. These deficiencies therefore also plague ballot initiatives and might in fact be compounded by initiatives. (7) Decreasing the distance between individuals and a decision by allowing the individuals to vote directly does not ensure that there will be meaningful deliberation. Nor does it ensure that good public policy is likely to result from the decision, that those drafting, or voting on, the proposition have the necessary skills and information to be competent in those respective tasks, or that key segments of the population participate in the decision. Because ballot initiatives, like elections, are an aggregative voting mechanism, ballot initiatives are in this respect "more machinery of the same kind as that which already exists." (8) It is counterproductive to attempt to fix the problems inherent in a majority-rule voting system by stressing voting systems and elections even more. Addressing these problems likely requires not that we increase the number of elections, but instead "that we stress elections less and supplement them with other forms of citizen interaction." (9)

This Note discusses the feasibility of using citizens' assemblies to improve the ballot initiative process. Affirmative action ballot initiatives can serve as a good model for discussing the feasibility of this new approach to propositions, (10) in part because the deficiencies of ballot initiatives have been particularly notable in the area of affirmative action. For more than a decade, groups in the affirmative action debate have been reinforcing the significance of elections by developing and refining electoral mobilization and litigation strategies to fight or promote propositions or initiatives that ban affirmative action. However, those organizations may better serve their goals not by focusing on improving their electoral or litigation campaigns, but rather by working toward a long-lasting solution based on informed and meaningful discussions among stakeholders and members of the public. Building some type of a deliberative community provides a possible route to developing such a solution. …

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