When British citizens voted to leave the European Union, I doubted the British political establishment would allow that decision to stand. Today that establishment is doing everything it can to undermine the Brexit referendum.
Such conduct is not limited to Britain. In the United States also, government officials have a long history of sabotaging ballot measures they don’t like.
The most common method is judicial action. For example, in 1996, the U.S. Supreme Court voided a state ballot measure deciding that sexual orientation was not a special civil rights category. This measure required only that state law treat sexual preferences as it treats most personal characteristics — other preferences, height, weight, allergies, perceived attractiveness, and so forth. Yet SCOTUS upended it, ruling it violated the Constitution’s Equal Protection Clause.
Similarly, in 2015 SCOTUS reversed 30 statewide votes reaffirming — generally by landslide margins — the traditional definition of marriage.
Most official actions undercutting voter mandates occur in the states. This is because the initiative and referendum process is conducted only at the state and local level. When voters act by referendum, they affirm or veto a decision already made by the state legislature or local council. When they act by initiative, they adopt state constitutional amendments and laws and ordinances directly.
There have been referenda in America since before the country’s founding. State initiatives became widespread during the 19th and early 20th centuries. Their original supporters were progressives and populists who employed them to add regulations and increase government power. State courts generally deferred to electoral decisions.
But during the 1970s conservatives began to use initiatives to limit government power. The premier example was California’s Proposition 13, controlling property taxes. Judges seemed to think this was a threat, and judicial attitudes toward ballot measures began to change. Courts
invented new restrictions on ballot measures and tightened old ones to bias the law against efforts to limit government.
An extreme illustration is the Montana Supreme Court: Over the past 40 years it has upheld every litigated ballot issue increasing government power — while voiding, almost without exception, every litigated ballot issue curbing government power.
Two vehicles for judicial discrimination are “single subject” rules and “separate vote” (separate amendment) rules. If a court doesn’t like a measure, the court finds that it contains more than one subject or amendment, and is therefore void.
In 1984, the Florida Supreme Court deployed a single subject rule to strike down an initiative limiting government revenue — a decision the voters later reversed. In 1998, the Oregon Supreme Court invented a separate vote rule to void an initiative constraining the criminal justice system. The Montana Supreme Court has made its separate vote rule so tight that compliance is literally impossible — at least if the ballot measure limits government.
The Colorado Supreme Court has created a single subject rule with no discernible content, thereby allowing judges to discriminate freely. Thus, the court voided as containing several subjects a measure combining specific tax cuts with modest fiscal reforms. But it sustained as a single subject a measure to socialize the entire state environment and force a massive re-write of much of the state’s legal code.
At one point, the Colorado Supreme Court issued two inconsistent “single subject” decisions within a month of each other. In one case the initiative sought to cut taxes at one level of government while paying for the cut with reduced spending at another level. In the other case, the initiative would have raised taxes at one level and transferred the revenue to finance new spending at another. The initiatives were mirror images of each other, but the court struck down the first and upheld the second.
Colorado offers another example of government’s relentless warfare against popular votes constraining government power. In 1992, the state’s voters adopted the famous “Taxpayer’s Bill of Rights” (TABOR). It requires referenda on most tax hikes and on many spending hikes and debt increases. In TABOR’s 37 years of operation, the state supreme court has never decided a major case in favor of the taxpayers. The justices have created loophole after loophole. Little of TABOR remains.
There are close parallels in many other states. Provisions limiting government fiscal powers endure, on average, only a few years.
There are no easy answers to this systemic bias. Curing it requires, at the least, creating new tribunals to judge ballot issue cases — tribunals structured to prevent prejudice in favor of government.
Rob Natelson is a retired constitutional law professor and senior fellow in Constitutional Jurisprudence at the Independence Institute. He is the author of The Original Constitution: What It Actually Said and Meant (Apis Books).