Ballot Initiatives and Intergovernmental Relations in the United States
Author(s): David B. Magleby
Source: Publius, Vol. 28, No. 1, The State of American Federalism, 1997-1998, (Winter, 1998),
pp. 147-163
Published by: Oxford University Press
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Ballot Initiatives and
Intergovernmental Relations
in the United States
David B. Magleby
BrighamYoungUniversity
Using ballotinitiatives, votersin severalstateshave recentlyvotedto concentratemorepowerin their
stategovernmentsat theexpenseof local autonomyand experimentation.Whetherthe issue is gay rights,
rent control,regulation of hazardous wastefacilities, zoning, or tax policy, initiative activists have
frequentlysought to reverselocal governmentpolicieswith a statewideinitiative. Counterexamplesthat
have encouragedlocalgovernmentexperimentationalso exist in areassuch as campaign-financereform.
The initiative is a powerfulagenda-settingdevice,not onlyfor the votersin the initiative statesbut also
for otherstates and thefederal government.Direct legislation has beenused by activists to assert state
prerogativesin policy areas long thought to be national in scope,for example,immigrationand drug
classification. Votershave also cast ballots to limit the termsof membersof the Congress,actions later
declaredunconstitutional. Theroleof thecourtsin determiningtheconstitutionalityof initiatives is one
of the mostimportantmanifestationsoffederalismin directdemocracy.
For the past century, voters in several states have made themselves
legislators by proposing and voting on statutes or constitutional amendments-the initiative-or by reconsidering actions taken by the legislaturethe popular referendum. These twin devices of direct democracy were
central to the Progressive reform agenda to place more power in the hands
of the people and limit the power of special interests. In the years since
South Dakota first adopted the process in 1898,1the process has diffused so
that a century later, 27 states, still primarily in the West,2have either the
initiative or the popular referendum. All states except Delaware have some
form of constitutional referendum by which changes in the state's constitution must be submitted to a popular vote. The critical element is the role
of citizens in setting the agenda of direct democracy. Citizens utilize these
twin devices of direct legislation by circulating petitions and meeting
minimum signature thresholds. This study examines the impact of initiatives
AUTHOR'S NOTE: I wish to acknowledge the help provided by four research assistants, Jason Beal,
Marianne Holt, David Ryan Just, and Eric A. Smith. My colleagues Gary Bryner, Don Norton, and Troy
Smith provided helpful suggestions. Interviews with Sharon Eubanks,Joel Fox, Craig Holman, Eugene
Lee, Dan Lowenstein, Charles Price, Mandy Raffool,Jim Scherzinger, and Robert Stern were also helpful.
Research support for this project came from the College of Family, Home and Social Sciences of Brigham
Young University.
'David B. Magleby, DirectLegislation: Votingon Ballot Propositionsin the United States (Baltimore: Johns
Hopkins University Press, 1984), p. 39.
2Charles Price, "Shadow Government," CaliforniaJournal 32 (October 1997): 32-38.
? Publius: The Journal of Federalism 28:1 (Winter 1998)
147
148
Publius/Winter 1998
and popular referendums on federalism and intergovernmental relations
in the United States over the past two decades.
Most states that have the initiative also have the popular referendum.
Actual experience with direct democracy finds that citizens are more likely
to employ the initiative rather than the popular referendum when they
have a choice, even when their aim is to reverse an action taken by the
legislature. The best known example of this would be California's Proposition 14 in 1964, an initiative to overturn the open-housing statute enacted
by the California legislature in 1963. Initiatives are preferable to popular
referendums because they permit more time to gather petition signatures,
and they permit authors to write their own law rather than simply reverse
an act of the legislature. All the ballot measures discussed in this article
were initiatives. Initiative activists also prefer the direct initiative, whereby
they can take their proposed law or constitutional amendment directly to
the voters, rather than the indirect initiative, by which they need to provide
an opportunity for the legislature to vote on the initiative first.
Some states, like Maine, Massachusetts, and Wyoming, limit the options
of proponents by providing only the indirect initiative.3 Although only
Florida and Mississippi have adopted the process in the past quarter century, the number of measures submitted to voters has grown, and the number of petitions in circulation has surged even more.4
THE INITIATIVE AS AGENDA SEK'I'ER
The initiative process is a powerful agenda-setting tool open to interest
groups, politicians, and even occasionally political parties. A vote on an
issue in a single state can propel an issue onto the national agenda because
of the widespread media attention given to some controversial initiatives.
Even when an issue is defeated at the polls, measure sponsors may have
advanced their cause by calling attention to their issue, pushing politicians
to discuss and comment on it, and forcing the opposition to spend millions
in an effort to defeat the idea. The politics of the initiative thus centers
much more on arguments that move voters than more arcane questions of
federalism or intergovernmental relations.
Compared to agenda-setting in other contexts, the initiative empowers
those who use the process to take their issue directly to the voters of the
locality or state. The opportunity to bypass the institutions of representative democracy is seen by those who use the process as an advantage. Direct
legislation is often faster than the legislative process, and the proponents
of the issue control the wording of the issue. Agenda-setting by initiative
'Magleby, DirectLegislation,p. 37.
4David B. Magleby, "Direct Legislation in the American States," ReferendumsAround the World:The
GrowingUse of DirectDemocracy,eds. David Butler and Austin Ranney (Washington, D.C.: American Enterprise Institute, 1994), pp. 218-257.
Ballot Initiatives and Intergovernmental Relations
149
means that proponents need to meet the minimum signature requirement
which, in most states, requires either a large number of highly motivated
volunteers or ample funds to hire signature collectors. Since there is difficulty qualifying for the ballot, the initiative is less and less a grass-roots phenomenon and more and more dominated by large and well organized
interests.
While the authors of initiatives control the wording of their propositions, the campaign serves to define what the issue means for voters. Initiative campaigns are largely fought in thirty- and sixty-second commercials
using attention-getting advertisements that motivate people either to care
about a problem and vote for the proposition, or to create doubts about
the initiative and scare voters into voting "no."5Not surprisingly, the issue
as defined by the opponents is not at all what the proponents desire or
intended. Well organized and well funded opposition campaigns win about
two-thirds of the time.6
Agenda-setting and campaign management in initiatives is thus primarily organized by elites but must involve mass audiences in qualifying for
the ballot and winning on election day. The mass-politics side of initiatives
is largely carried out by paid consultants and organized by elites. As the
process has become more visible and more central to the politics of a dozen
or more states, an initiative industry that specializes in such services as petition circulation, polling, media management, direct mail, and legal advice
has grown accordingly.7 Those who use this tool include citizens who can
link their concerns to other organized groups like the sponsors of recent
California initiatives on immigration and affirmative action, governors or
legislators who want to take their issue directly to the voters or enhance
their own standing, and interest groups.
Successful initiatives command the attention of elected officials because
as Sidney Verba and Norman H. Nie have argued in a different context,
"where there is widespread participation, leaders are indeed responsive to
citizens."8 Just getting the issue on the ballot meets one of the tests of
agenda-setting advanced by Roy W. Cobb and Charles D. Elder, "the larger
the public to which an issue has been expanded, the greater the likelihood
of the conflict being placed on the docket."9
5David B. Magleby, "Opinion Formation and Opinion Change in Ballot Proposition Campaigns,"
Manipulating Public Opinion: Essays on Public Opinion as a Dependent Variable,eds. Michael Margolis and
Gary A. Mauser (Pacific Grove, CA: Brooks/Cole, 1989), pp. 95-115.
6David B. Magleby, "Direct Legislation in the American States," ReferendumsAround the World:The
GrowingUseof DirectDemocracy,eds. David Butler and Austin Ranney (Washington, D.C.: American Enterprise Institute, 1994), p. 249.
7David B. Magleby and Kelly D. Patterson, "Consultants and Direct Democracy," PS: Political Science
and Politics 31 (June 1998): 160-169.
8Sidney Verba and Norman H. Nie, Participationin America:PoliticalDemocracyand SocialEquality (New
York: Harper & Row, 1972), p. 314.
9Roger W. Cobb and Charles D. Elder, Participation in American Politics: The Dynamics of AgendaBuilding, 2nd ed. (Baltimore, MD:Johns Hopkins University Press, 1983), p. 152.
150
Publius/Winter 1998
The range of subjects in this flurry of direct legislation is impressive.
Some activity reflects grassroots concerns like tax reduction; others, like
gambling or stadium referendums, clearly have corporate sponsors. Conservative measures include initiatives that overturn affirmative action, ban
local gay-rights statutes, or limit the benefits given to illegal immigrants,
while it was liberals who promoted the nuclear-freeze initiatives of the 1970s.
The best example of an initiative that set the national political agenda is
the tax revolt of the late 1970s and California's Proposition 13. Proposition
13 is a state constitutional amendment that limits property taxation to one
percent of market value and limits increases in property taxes to no more
than 2 percent each subsequent year. The proposition requires a two-thirds
vote of the state legislature to raise state taxes, and the same extraordinary
majority of the local electorate for any "special tax" increase. Ironically,
Proposition 13 itself failed to meet this two-thirds vote standard.10
The movement to cut taxes and limit government spending gained momentum from victories in ballot initiatives in such states as California, Michigan, and Massachusetts. Within eighteen months of enacting Proposition
13, no fewer than a dozen states had enacted tax cuts or spending limitation measures. It also helped to spur proposed constitutional amendments
to set federal spending limits, require a balanced federal budget, and index tax brackets. During the 1978 and 1979 legislative sessions, 37 states
reduced property taxes, 28 states cut income taxes, and 13 states restricted
sales tax collections. Income and sales tax cuts alone surpassed $4 billion."
Furthermore, the wave of states that lowered taxes in the wake of Proposition 13 reduced tax collections nationally by an estimated $29 billion.'2
One of the most important consequences of Proposition 13 was the new
wisdom that the public had become more conservative and, hence, desired
less government. 3 As David O. Sears andJack Citrin argue, the Republicans "made Howard Jarvis's message the centerpiece of their 1980 presidential campaign: eliminating bureaucratic waste would make it possible
to cut both taxes and public spending without the loss of valued services
and less government would enhance both the personal freedom and the
?AlvinRabushka and Pauline Ryan, The TaxRevolt(Stanford, CA: Hoover Institution Press, 1982), p. 30.
"Ibid., p. 189.
'2AlvinD. Sokolow's study of property taxes in western states found that only half of the property tax
limitations enacted since 1970 were the result of initiatives. The other half were the result of the normal
legislative process. Sokolow found property tax limits enacted by initiative to be more "severe" than those
coming through the legislative process. See Alvin D. Sokolow, "The Changing Property Tax in the West:
State Centralization of Local Finances," (paper presented at the Annual Meeting of the Western Political
Science Association, Los Angeles, CA, 19-21 March 1998), 7.
"Examples of columns making one or more of these arguments would include Jack Anderson, "Tax
Revolt: The Opening of U.S. Wide Movement," DeseretNews, 13June 1978, p. A3;James Kilpatrick, "The
Year of the Taxpayer," San Francisco Chronicle,2 June 1978, p. 52; Joseph Kraft, "Populist Hedonism,"
WashingtonPost, 11June 1978, p. C7; Anthony Lewis, "Fed Up," San FranciscoChronicle,24 May 1978, p. 69;
"IsThere a Parade?" The Nation 227 (October 1978): 363-364; Commentary, "Conservatism," U.S. News &
WorldReport834 (January 1978): 24-25. Not all commentators agreed that the country was turning
conservative or that Proposition 13 was evidence of fundamental shifts in voter attitudes. For examples of
this view, see Everett Carl Ladd, "What the Voters Really Want," Fortune 98 (December 1978):
40-44, 46, 48; Curtis B. Gans, "Conservatism by Default," The Nation 227 (October 1978): 372-374; and
Tom Bethell, "The Changing Fashions of Liberalism," Public Opinion 2 (January/February 1979): 41-46.
Ballot Initiatives and Intergovernmental Relations
151
personal finances of citizens."'4 Few would dispute that the tax revolt led to
a decline in local government services in tax-revolt states like California
and reduced the autonomy of local government as well.
THE COURTS, SUCCESSFUL INITIATIVES,
AND FEDERALISM
Most initiatives are defeated, and many of those that are not defeated are
quickly challenged in state or federal court. Voters appear to be more skeptical of measures put on the ballot by petition than by the legislature; they
enact about two-thirds of the latter while defeating roughly two-thirds of all
initiatives.'5 Opposition campaigns appear to be able to create doubts about
most propositions, and even measures that start out ahead in the polls can
be defeated by wide margins on election day.
Successful initiatives face another high hurdle prior to implementation:
an almost certain constitutional challenge. State courts are often first involved in adjudicating disputes concerning the electoral rules of direct legislation.'6 The Progressives were so distrustful of intermediary institutions
that they minimized the role of elected officials in overseeing the process.
Hence, disputes about signature collection and verification, ballot title and
summary, and subject-matter limitations are routinely referred to state
courts.17 State courts also regularly rule on the constitutionality of successful initiatives.
State and federal courts have often overturned a vote of the people on
either state or federal constitutional grounds. The legal challenge to successful initiatives generally arises immediately after the election and can
delay implementation of an initiative for years. The willingness of the state
and federal judiciaries to invalidate initiatives has generated controversy.
In California, the frequency of the state supreme court's rejection of initiatives played a role in defeating Chief Justice Rose Bird and two associate
justices in ajudicial retention election in 1986. Because the federal judiciary is more independent, UCLA law professorJulian N. Eule believes the
federaljudiciary should decide the constitutionality of initiatives.'8 Others
contend that fear of defeat injudicial retention elections means state court
judges are less inclined to declare entire initiatives unconstitutional, opting instead to invalidate only parts of the measures.19
'4David 0. Sears and Jack Citrin, Tax Revolt:Somethingfor Nothing in California (Cambridge: Harvard
University Press, 1982), p. 2.
"David B. Magleby, "Direct Legislation in the American States," ReferendumsAround the World:The
GrowingUse of DirectDemocracy,eds. David Butler and Austin Ranney (Washington, D.C.: American Enterprise Institute, 1994), pp. 218-257.
'"JamesD. Gordon III and David B. Magleby, "Pre-Election Judicial Review of Initiatives and Referendums," NotreDame Law Review64 (1989): 302-304.
7Ibid., 298-320.
"Julian N. Eule, "Judicial Review of Direct Democracy," YaleLawJournal 99 (May 1990): 1579-1584.
"See Craig B. Holman and Robert Stern, "Judicial Review of Ballot Initiatives: The Changing Role of
State and Federal Courts," LoyolaLaw Review31 (Summer 1998): forthcoming; Charles M. Price, "Shadow
Government," CaliforniaJournal32 (October 1997): 32-38.
152
Publius/Winter 1998
The willingness of federal courts to overturn state initiatives on U.S.
Constitutional grounds is an important manifestation of federalism. This
assertion of federal constitutional supremacy over the vote of the people
was expressed forcefully in the landmark 1964 California open-housing initiative decision. The U.S. Supreme Court and the California Supreme Court
agreed that the proposition violated the equal protection clause of the Fourteenth Amendment.20 Chief Justice Warren Burger observed: "It is irrelevant that the voters rather than a legislative body enact [this law] because
the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation."21 Federal
courts have struck down successful initiatives on the death penalty, abortion, homosexual rights, term limits, physician-assisted suicide, and illegal
immigration.
Criticism of federal judicial review has been expressed in the two most
recent Congresses where legislation passed in the House in 1995 to require
that any challenge to a statewide referendum should be referred to a panel
of three judges not one.22 There has even been some skirmishing between
appellate and district courts in the federal system. A three-judge appellate
panel wrote against a federal districtjudge who enjoined Proposition 209
(affirmative action): "A system which permits one judge to block with a
stroke of the pen what 4,736,180 [actually 5, 268,462] state residents voted
to enact as law tests the integrity of our constitutional democracy."23
BALLOT INITIATIVES AND
STATE-FEDERAL RELATIONS
In terms of state-federal relations, the most important consequence of state
initiatives is agenda-setting. As discussed, the most important example of
an initiative setting the national agenda is the 1970s tax revolt. California's
Proposition 13 not only reduced property taxes in the Golden State but
also fostered a tax revolt that, according to the National Conference of
State Legislatures, spread to 27 other states.24 Arguably, the success of state
tax reduction and spending limitation initiatives reinforced the issue in the
1980 presidential election and in Ronald Reagan's first term in office.
As Charles R. Hulton andJune A. O'Neill conclude, "The Reagan administration came to office at a time when many Americans were questioning
whether they wanted more government and the additional taxes to pay
for it."25
2Reitman v. Mulkey,387 U.S. 369 (1967).
2"CitizensAgainst Rent Controlv. Berkeley,454 U.S. 295 (1981).
22TheSenate did not act on the bill, but a similar bill was introduced in 1997. See Kirk Victor, "Bashing the Bench," NationalJournal 22 (May 1997): 1081.
23CharlesPrice, "Shadow Government," CaliforniaJournal 32 (October 1977): 38.
24WilliamH. Honan, "Without Money to Build, Western Colleges Innovate to Handle More Students,"
The New YorkTimes,25 September 1996, p. B9.
25John L. Palmer and Isabel V. Sawhill, eds., The Reagan Experiment(Washington, D.C.: The Urban
Institute Press, 1982), p. 97.
Ballot Initiatives and Intergovernmental Relations
153
The 1996 California vote to eliminate gender, race, religious, or ethnic
preference in state contracts and hiring is another example of a measure
intended to influence the national political agenda. Support for this reversal
of affirmative action became part of the 1996 Republican party platform.
Illegal Immigration
Some initiatives expressly seek to alter federal policy by asserting a state
policy role in an area thought to be federal in nature. Recent California
initiatives on immigration and medicinal use of marijuana are examples.
The policy area of immigration has long been primarily a federal question.26 Yet, the impact of large numbers of illegal immigrants on state and
local services has been a concern for decades. Florida, Texas, Arizona, and
California have been especially involved in trying to establish the limits of
state responsibility for public services like health care, education, housing,
and welfare.
California Proposition 187, enacted in 1994, gives more power to state
and local governments to exclude illegal immigrants from public education and other state programs. In 1982, the U.S. Supreme Court ruled that
Texas did not have power to exclude children of illegal aliens from public
schools.27 The California initiative ignores this ruling, knowing the matter
will again be challenged in court.
The politics of the issue are also important. The California Republican
party and Republican Governor Pete Wilson became interested in the initiative long after it had been drafted and begun signature circulation. California political consultant Mike Arno claims that this is part of a "trend for
initiatives to go on the ballot for partisan political reasons. Wedge issues
like 209 and 187 are examples of Republicans spending money to qualify
them for the ballot and then using them in the campaign."28 Given the
strong anti-illegal immigrant feelings in California, it is not surprising that
the measure passed.
Most of the litigation about Proposition 187 has focused on the unconstitutionality of limiting access to federally funded health programs and to
public education and on state power to investigate the legal status of individuals. These provisions have been overturned in lower federal courts
and are on appeal.29 Elements of Proposition 187 that have not been contested are states' power to discriminate in areas other than health or education, or to punish those who sell falsified citizenship.
26HiroshiMotomura, "Immigration and Alienage, Federalism and Proposition 187," VirginiaJournalof
InternationalLaw 35 (Fall 1994): 201-216.
27Plylerv.Doe, 457 U.S. 202 (1982).
28Interviewby author with Mike Arno, Arno Professional Consulting, 9July 1997.
29John Friedman and Uta Angelika Lehrer, "Urban Policy Responses to In-Migration" Journal of
AmericanPlanning Association 63 (January 1997): 61.
154
Publius/Winter 1998
LegalizingMarijuana
Just as Proposition 187 asserted state prerogatives in immigration policy,
the twin initiatives in Arizona and California in 1996 on marijuana ignored
federal drug policy by decriminalizing the drug for medicinal purposes.
To the surprise of many, 65 percent of voters in Arizona and 56 percent in
California voted to permit marijuana use for prescribed medical purposes.30
Subsequent to the vote, the Arizona legislature overturned the medical
marijuana portion of the measure; however, this action itself is being challenged by a popular referendum that will be on the 1998 ballot. The California initiative has been challenged in court and poses important federalism
issues.
The federal government assumed authority over marijuana policy with
the Marijuana Tax Act passed in 1937. Further federal regulation came in
1970 when the federal government listed marijuana as a Schedule I drug in
the Controlled Substance Act-meaning it has "ahigh potential for abuse,"
is "not currently accepted for medical use in treatment in the United States,"
and lacks "accepted safety for use under medical supervision."31 From the
time the act was passed, there has been some disagreement among federal
officials about whether marijuana should remain a Schedule I drug, and
since 1978, thirty-fourstates have passed legislation recognizing marijuana's
medicinal value.
Despite these state actions (and the two recent propositions), the federal government continues to include marijuana in its war on drugs. Barry
McCaffrey, President Clinton's drug czar, announced that "nothing has
changed. Federal law is unaffected by these propositions."32 But who will
enforce federal law if state and local governments have different mandates?
Although the California proposition is very limited in its scope, the dispute still raises a federalism issue. Can voters in states enact initiatives that
remove state and local governments from enforcing federal drug law in
narrowly defined areas? In short, does the supremacy clause apply in such
instances? Must the state enforce a federal law that is inconsistent with
state law? Recently, the U.S. Supreme Court ruled in implementing federal
laws like the federal Brady Gun Bill, state and local officials are obligated to
comply with federal law.33 One California County Sheriff, Brad Gates of
Orange County, has suggested the use of local police to enforce federal
laws, but explained that the police lack statutory authority.34 California
Attorney General Dan Lungren told California prosecutors and police
"Arizona voted on decriminalizing marijuana in 1996; groups in several other states have been circulating petitions to do the same thing in their states.
"321U.S.C.S. at 812 (1992), Title 21, Food and Drugs, Chapter 13. Drug Abuse Prevention and
Control, Authority to Control; Standards and Schedules at 812; Schedules of Controlled Substances.
32WhiteHouse Briefing, FederalNews Service,30 December 1996.
"Printz v. UnitedStates, 117 S. Ct. 2365 (1997).
4WilliamClaiborne and Roberto Suro, "Medicinal Marijuana Brings Legal Headache; Officials 'Puzzle
Through' Conflicts Raised by Two States' New Laws," The WashingtonPost, 5 December 1996, p. Al.
Ballot Initiatives and Intergovernmental Relations
155
officers that "our job is to correctly apply the 'medicinal use' law as
narrowly as possible-as close as possible to what the voters' intentions
were."35
The initial approach for the federal government was announced by
Attorney General Janet Reno, who said, "Federal law still applies.... U.S.
attorneys in both states will continue to review cases of prosecution, and
DEA officials will review cases as they have to determine whether to revoke
the registration of any physician who recommends or prescribes so-called
Schedule I controlled substances. We will not turn a blind eye toward our
responsibility to enforce federal law."36Reno's threat to prosecute medical
doctors was taken to federal court in the spring of 1997 in a class-action
suit by doctors. In April 1997, the U.S. district court issued a restraining
order against the federal government, and ruled that federal officials may
not sanction California doctors who "recommend" marijuana to patients in
compliance with state law.37The ruling goes on to explain that it was within
the doctors' freedom-of-speech protections to advise patients. The federal
government has not challenged this ruling, but it is searching for other
ways to enforce federal drug law without the aid of local authorities.38
NuclearFreeze
Immigration and medical marijuana are not the first involvement by
voters via the initiative into federal policy disputes. Another example is the
nuclear-freeze movement. In the early 1980s, while President Ronald Reagan was in the midst of his military buildup, there was a swelling of public
support against nuclear weapons. The intent of the grassroots "nuclear
freeze" movement was to demonstrate public misgivings through the ballot
box. These initiatives, not legally binding, asked the president to propose a
"bilateral, mutually verifiable freeze on testing, production, and deployment of nuclear weapons by the United States and the Soviet Union."39
The nuclear-freeze initiatives passed in nine of ten states between 1982 and
1984. One of the initiative coordinators, Harold Willens, a Los Angeles
businessman, compared the initiative to a modern Paul Revere: "sound the
alarm and really begin to awaken the slumbering body politic."40 President
Reagan was clearly frustrated by the public support for the movement,
35Ibid.
36WhiteHouse Briefing, FederalNews Service,30 December 1996.
37EmelynCruzlat and Larry D. Hatfield, "Judge Defends Doctors in Pot Fight: Grants Injunction to
Stop Prosecution for Recommending It," The San FranciscoExaminer,11 April 1997, p. Al.
3The federal-state dispute is not the legality of recommending marijuana for medical use, but the
illegality of production and distribution of the substance. If the state and local governments attempt to
allow production and distribution, they could be prosecuted under federal law. One locality, Fort Bragg,
considered growing marijuana at a local police station, an option not pursued. See CaliforniaMedicinal
Marijuana Update, 'Marijuana Policy Report," (Summer/Fall 1997); World Wide Web Internet Citation:
http://www.mpp.org/CAupdate.html.
9SSarahTerry, "Nuclear-Freeze Issue: Hot in US, Cold in Europe," The Christian Science Monitor,
27 October 1982, p. 1.
40SarahTerry, "Hot New Issue in California: Is it Time for 'Nuclear Freeze'?" The Christian Science
Monitor,18January 1982, p. 1.
Publius/Winter 1998
156
insisting that it "doesn't make sense" to unilaterally freeze nuclear
weapons. He even questioned the origination of the freeze movement by
charging that "foreign agents were sent to help instigate and create" the
movement.41 Proponents of the nuclear-freeze initiatives understood that
their propositions were largely symbolic, but they used the supporting votes
as evidence that if people could vote on a national initiative, they would
support limiting nuclear weapons.
TermLimits
Another application of the initiative to national institutions is the effort
by initiative activists to enact term limits on their members of the Congress
and state legislatures. Voters approved term-limit initiatives in 22 states,
while rejecting them in only three.42 Despite their popularity with voters,
term limits for Congress were declared unconstitutional. The U.S. Supreme
Court ruled that "states have no authority to 'change, add to or diminish'
the requirement for congressional service enumerated in the Qualifications
Clauses. 43
BALLOT INITIATIVES AND
STATE-LOCAL RELATIONS
Looking across issues and over time, the most important consequence of
the state initiative process for intergovernmental relations has been the
expansion of state policy at the expense of local governments. This centralizing tendency of plebiscitary politics is not the same thing as strengthening state government, because initiatives can also limit state government.
It is rather that because the locus of decisionmaking via the initiative is
available through state law, policy has been enacted statewide. The successful use of the initiative by conservative groups in the last quarter century
reflects their pragmatism more than their ideology about local control.
Others who have used this strategy include tobacco companies that financed
California's Proposition 188, a law that centralized smoking regulations and
reversed more aggressive local ordinances. The initiative was defeated.
Other interest groups have been successful in setting state policy via the
initiative in taxing and spending, gay rights, zoning and planning, and rent
control.
One reason for this tendency to take on matters that were previously
local and decide them on a statewide basis is interest-group efficiency. It is
easier to restrict local taxing powers, strike local rent-control laws, and eliminate ordinances protecting gays and lesbians by mobilizing a single
statewide vote rather than campaigning to reverse or defeat these
41HedrickSmith, "After Brezhnev," The New YorkTimes,14 November 1982, p. D1.
42Foran examination of why term limits were defeated in Utah, see David B. Magleby and Kelly D.
Patterson, "Political Knowledge and Term Limits: Can Angry Citizens be Educated?" (paper presented at
the Annual Meeting of the Western Political Science Association, San Francisco, CA, March 1996).
43UnitedStates TermLimits, Inc. v. Thorton,U.S. 115 S. Ct 1842 (1995).
Ballot Initiatives and Intergovernmental Relations
157
initiatives locally.44This same reason is often given for federal preemption
in regulatory policy so that regulated parties do not have to deal with 50
state laws and can manufacture their products to one standard. For example, in the debates leading up to the Clean Air Act of 1990, automobile
manufacturers opposed permitting states to enact stricter air emissions standards, a view ultimately rejected by the Congress.
Another reason for use of the statewide initiative to preempt local policy
is that the voter in the state arena may be more conservative or liberal than
voters in some localities. An example would be gay rights ordinances in
Colorado. Voters in Aspen, Boulder, and Denver had included sexual orientation as a protected category in antidiscrimination initiatives, an inclusion that offended the religious right in Colorado. Rather than seek to
overturn these popular votes with subsequent initiatives in all three communities, they took the issue to voters statewide.45 The politics of rent control in Massachusetts had the same dynamic of an interest group using the
statewide initiative to overturn and limit local legislation. Voters in Cambridge had voted to keep rent control before the statewide vote to overturn it.
Taxingand Spending
The most prevalent subject for plebiscite is fiscal policy-taxes, spending, and bonds.4 Use of the initiative generally has enjoyed a resurgence
since the mid-1970s.47The most common approach has been to lower taxes.
Initiatives to raise or lower taxes must be distinguished from bond elections, which are held regularly by local and state governments to raise revenue for various projects. Bond elections occur with much greater frequency
than initiatives on tax policy and have a much higher passage rate.
Following enactment of Proposition 13, some California local governments experimented with alternative sources of revenue and contended
that these new taxes did not fall under the extraordinary-majority rules of
Proposition 13. In 1981 and 1982, 34 states raised at least one tax, and 38
states did so in 1983. California, for instance, raised its vehicle license fee
during that period. The taxes most likely to be increased were personal
income, sales, or specific "sin" taxes on alcohol or tobacco.48 In 1986,
HowardJarvis sponsored another initiative, Proposition 62, which prohibits any general-fund tax increase unless passed by a simple majority of the
electorate. After nine years of battle in the courts, Proposition 62 was
finally ruled constitutional in 1995.49
4See Michael Reagan and John G. Sanzone, The New Federalism(New York: Oxford University Press,
1981), p. 168.
45SeeNancy D. Wadsworth, "Reconciliation Politics: Conservative Evangelicals and the New Race Disclosure," Politics & Society25 (September 1997): 341-376.
46Magleby,"Direct Legislation in the American States," ReferendumsAround the World,p. 238.
47Ibid.,pp. 232-233.
48PaulRichter and Terry Schwadron, California and the AmericanTax Revolt (Berkeley, CA: University
of California Press, 1984), pp. 20, 182.
49Interviewby author with Joel Fox of the Howard Jarvis Taxpayers Association, 27 February 1998.
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In California's increasing pattern of establishing taxing and spending
policy by initiative, Proposition 98, an initiative that guaranteed a certain
percentage of general- fund and tax revenues, was placed on the 1988 ballot. The combination of declining revenues because of Proposition 13,
and earmarked taxes because of Proposition 98, led local governments to
increase revenue by fiddling with assessment districts that fell outside Proposition 13's restrictions. The anti-tax movement's response was the 1996
Proposition 218-which created new assessment districts and instituted a
requirement that increases in such taxes could be voted down by 50 percent of those who vote.50 Together, Propositions 13, 62, and 218 make increasing local taxes very difficult in California.
The most frequently cited clone of Proposition 13 is MassachusettsProposition 2-1/2. This measure froze the set market value of property as assessed in 1980 and limited property taxes to no more than 2-1/2 percent of
that assessment. In subsequent years, property taxes could rise no more
than 2.5 percent of the previous year's levy. The initiative also cut the auto
excise-tax, and required the state to pay, starting in 1980, for any program
it mandated on a locality.
A third application of plebiscitary democracy to fiscal policy is Colorado's
Taxpayer Bill of Rights (the TABORAmendment), or Measure A-i, enacted
in 1992. Rather than lower existing taxes as Propositions 13 and 2-1/2 did,
the TABORAmendment forbids special elections to be held for tax increases
at both the state and the local level. Instead, any tax increases must be
decided by the voters in general elections. The measure also places an
annual limit on fiscal year spending and fiscal year revenue collections for
state and local governments. These limits rise with inflation and population growth and can be suspended temporarily by referendum. Lastly, the
amendment required that 1 percent of the budget be held in reserve for
emergency purposes for the first three years, and currently requires 3 percent.51
The tax-revoltinitiatives, typified by the votes in California, Massachusetts,
and Colorado, have two major consequences. They effectively transfer power
to the electorate-a change that troubles Colorado Governor Roy Romer.
He believes that "this takes the issues of taxation away from representative
government."52 Second, they strengthen state governments at the expense
of local governments. Local governments now rely more on state aid to
replace the lost revenues. As Stephen D. Gold has argued, "The Tax Revolt
led to increased centralization of decisionmaking at the state level because
local governments had to rely on state aid to replace the property tax revenue they lost."53
50Before Proposition 218, it took 50 percent of registered voters to defeat a tax increase.
5'Interview by the author with Sharon Eubanks, Senior Attorney for Special Projects, Office of Legislative Legal Services, Finance Team, Colorado General Assembly, 2 March 1998.
52DirkJohnson, "Taxpayer Revolt in Colorado Raises Alarm About Lost Services," The New YorkTimes,
15 November 1992, pp. 1-18.
53StevenD. Gold, "The Tax Revolt 10 Years Later," StateLegislatures14 (September 1988): 17.
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159
State and local governments have been more limited in what they can do
to raise revenue. This problem has been compounded by the fact that
federal aid to states and localities for programs like education has declined.54
Yet another consequence of the tax revolt, according to the California legislative analyst, is that state governments have had to divert revenues from
other taxes to "backfill some of the lost local revenues."55This in turn hurt
some services generally funded by state governments. "Bycutting property
taxes, which fund local governments, state resources available for social
services and universities were reduced."56 California is not alone in having
higher education feel the squeeze of tax initiatives when voters repeatedly
refused to enact a sales tax. Grattan Kerans, director of government relations for Oregon's system of higher education, put it succinctly: "Higher
education is the accordion of the state budget...When things are tight we
get squeezed."57
State-imposed restrictions on local tax options has meant that local governments have turned to unrestricted taxes or to fees and indirect taxes.
Given that so much of the anger of the tax revolt was directed at the property tax, and because this tax is most important to local governments, it has
left local governments scrambling to find other sources of revenue. One
consequence has been greater emphasis on the sales tax. This in turn means,
in some instances, that local governments put a premium on shopping malls
and other sales-tax producing activities and less emphasis on encouraging
housing and manufacturing.
GayRights
During the 1970s, voters in a few localities cast ballots on ordinances
banning gay rights. The campaigns attracted national media attention in
part because Anita Bryant, an evangelical singer, campaigned aggressively
with her organization Save Our Childrento repeal the Dade County, Florida,
ban on anti-gay discrimination. California voters decided two measures
with gay rights ramifications: the 1978 Briggs initiative banned homosexuals from teaching in public schools, and a 1988 ballot measure sought to
quarantine AIDS victims and declare AIDS a communicable disease. The
latter measure was sponsored by anti-tax celebrity Paul Gann. Both measures were effectively labeled as extreme and were defeated at the polls.
More recently, advocates of gay rights have used the initiative to enact
local ordinances that protect gays and lesbians or include homosexuals as a
protected minority. Colorado municipalities like Aspen, Boulder, and
54Federalaid for individuals has grown since 1988, a change due in part to increased federal funding
for Medicare See, League of California Cities, ExecutiveSummary:Financing Cities,An Analysis of the Years
Since Proposition13 (Sacramento, CA: University of California, 1990), p. 2.
55Statement of the Legislative Analyst to the California Taxpayers' Association, "Decision 90: BallotBox Budgeting," 26 September 1990, p. 5.
56Gold, "The Tax Revolt 10 Years Later," 17.
57WilliamH. Honan, "Without Money to Build, Western Colleges Innovate to Handle More Students,"
The New YorkTimes,25 September 1996, p. B9.
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Denver had enacted such ordinances. Opponents of these ordinances
sponsored Colorado Amendment 2 in 1992. Amendment 2 overturned
these local ordinances and stipulated that sexual orientation could become
a protected classification only through a new state constitutional amendment. The heated campaign involved threats of boycotts by gays and lesbians if the measure was adopted. Despite these threats, voters enacted the
amendment. Concerns about local control and intergovernmental relations were not major issues in the campaign.
The initiative was first challenged in the state supreme court, which
declared the initiative unconstitutional for denying fundamental rights to
gays.58The case then moved to the U.S. Supreme Court, and as is often the
case with enacted initiatives, the U.S. Supreme Court declared
Amendment 2 unconstitutional.59 In Evans v. Romer,the Court ruled in a
six-to-three vote that it is unconstitutional for a state to exclude gays from
protection against discrimination. In this case, the Court again upheld the
supremacy of the U.S. Constitution and its guarantees against a plebiscite.
The implications for federalism are clear: the Court continues to be willing to
overturn votes by the people if such votes interfere with U.S. constitutional
guarantees.
Rent Control
Opponents of rent control in Massachusetts faced much the same predicament as did opponents of gay rights ordinances in Colorado. In 1970,
the Massachusetts legislature passed a statute permitting localities to impose rent control. Boston, Brookline, and Cambridge then enacted such
statutes. In 1989, voters in Cambridge voted down an initiative to repeal
rent control by a two-to-one margin. Unable to defeat rent control locally,
opponents then sponsored a 1994 statewide initiative to end rent control.
The measure passed with 51 percent of the vote. In Cambridge, the vote
against the initiative was 58 percent.60 In Massachusetts, as in Colorado
and California, when interest groups are losing locally, they have sometimes successfully employed the statewide initiative as a tool to preempt
local actions.
Busing, Zoning, and Land Use
Another example of using the initiative to reverse a local government
decision is the 1978 Seattle School Board decision to use busing and school
reassignment to integrate Seattle's schools. Opponents of the decision then
placed on the ballot a statewide initiative (Initiative 350) that ended the
58Evansv. Romer,882 P. 2d 1335 (Colo. 1994).
59Evansv. Romer,U.S. 116 S. Ct 1620 (1996).
60HowieFain, "Rent Control in Massachusetts: Notes on Cambridge Electorate," National Civic Review
84 (Spring 1995): Netscape version.
Ballot Initiatives and Intergovernmental Relations
161
use of busing for integration. The initiative passed, only to be reversed by
the federal courts, including the U.S. Supreme Court.61
Zoning and land-use planning have long been seen as primarily local
government powers. Yet, in this area, again, initiative activists have pushed
statewide solutions. The most notable example is California's 1972 Proposition 20, the costal zone initiative. Conservationists, tired of the challenge
of dealing with 15 counties, 45 cities, 42 state units, and 70 federal agencies, proposed an initiative that established common criteria for future development of California's coastline. One observer of this campaign
concluded that expecting local governments to accomplish statewide objectives is a futile hope in the absence of strong state decisions that can
override local action-or inaction-when necessary.62
Local action that permits hazardous waste to be stored in North Dakota
prompted a statewide initiative which limits that practice (Initiative 6 in
1996). The measure passed narrowly, and the statewide standard effectively restricts even private hazardous-waste storage facilities. The politics
of the coastal zone and hazardous-waste initiatives demonstrate that it is
practicality more than ideology that often pushes interest groups to seek
statewide solutions through the initiative process.
ProvidingforLocal Option
Although the tendency of many statewide initiatives is to enhance the
power of state government at the expense of local governments, some initiatives provide for local options. Utah voters in 1992 faced an initiative
that would permit at local option legalized pari-mutual gambling. Utah,
one of only two states that do not permit any form of gambling, overwhelmingly rejected the initiative. Proponents of the measure, seeking to make
their measure more saleable to Utah's voters, included the local choicewhy not let the voters decide the argument?
An important counter example of an initiative that permitted local
governments to depart from the statewide initiative is California's
Proposition 9, the Political Reform Act of 1974, later amended by
Proposition 73 in 1988 and by Proposition 208 in 1996. These initiatives set
state standards for campaign finance reporting and regulation, but local
governments are permitted to enact additional restrictions in areas like
contribution restrictions and disclosure requirements, expenditure ceilings
and matching funds, audits, and wealthy candidate restrictions. Scores of
California local governments enacted tougher standards in one or more of
these areas. Berkeley, for instance, limits individual contributions to $250
per candidate per election, a limit lower than the state limit of $1,000. The
6
Washingtonv. SeattleSchoolDistrictNo. 1, 458 U.S. 457 (1982).
62StanleyScott, GoverningCalifornia'sCoast (Berkeley, CA: Institute of Governmental Studies, University of California, 1970), p. 118.
Publius/Winter 1998
162
Political Reform Act requires full disclosure of entities or persons receiving
payments from the candidate of $100 or more but in Newport Beach, all
vendors, regardless of amounts received, must disclose their payments received from candidates.63 Proposition 9 also gave the voters the option to
loosen the standards of the Political Reform Act if a majority so voted. No
jurisdiction has done so. While California local government has shown a
tendency to go beyond the structures of the statewide initiative in campaign finance reform, this remains an isolated example of initiatives permitting local options.
CONCLUSION
The initiative process has been important in the federal system as an agendasetting device. People in other states and nationally pay attention to plebiscites around the country, and some issues generate national movements.
Examples include the nuclear freeze, term limitation, and tax limitation
movements. Prominent initiatives can also serve as precursors for themes
and issues in subsequent presidential campaigns or can become part of
national party platforms.
State and federal courts play an essential role in deciding on the constitutionality of successful initiatives. The courts have not hesitated to declare unconstitutional all or parts of initiatives approved by voters. The
role of the federal judiciary in reviewing state and local initiatives is especially important to the maintenance of constitutional supremacy and fundamental rights. Cases involving school integration, discrimination in
housing, abortion, the death penalty, and campaign finance are some examples of areas in which the courts have declared state initiatives unconstitutional.
Federalism concerns are not central to most campaigns, but such concerns can become important when initiatives are implemented. In California, state and local law enforcement officials now face uncertainty about
their role in marijuana policy. Although much of the illegal immigration
initiative has been declared unconstitutional, the measure did send a message to Washington and Mexico that illegal aliens are not welcome in the
Golden State.
In terms of intergovernmental relations, the recurrent pattern across
states is for initiative activists to use a statewide vote to establish uniform
standards across the state to mandate specific policies for federal, state, or
local governments.4 This has meant that some locally enacted laws on gay
63Report and Recommendation of the California Commission on Campaign Financing, Money and
Politics in the Golden State: Financing California's Local Elections (1989):
pp. 507-517.
64Voterinitiatives resemble federal mandates in that they impose policy priorities and costs on state
and local governments. They differ from federal mandates in that it is the voters of the state enacting the
mandate on their own government. For a useful explication of the impact of federal mandates on state
and local governments, see Paul Posner, "The Politics of Federal Mandates: Congress on the Frontiers of
Federalism" (Ph.D. diss., Columbia University, 1995).
Ballot Initiatives and Intergovernmental Relations
163
rights, rent control, hazardous waste, and property taxes have been replaced
by a single state policy designed to reverse local experiments. A few counter
examples exist in areas like campaign finance reform, but they are the
exception.
This tendency to use the initiative to establish uniformity in policy would
almost certainly be a part of any national initiative process when matters
like auto emission standards, or teacher testing would be challenged by
interest groups that oppose actions taken in a handful of states. A single
national vote could reverse this state experimentation. In any future
debate over a national initiative, this tendency needs to be part of that
discussion.