APPENDIX: A PROPOSED CONSTITUTIONAL AMENDMENT
Section -.
[Initiating and ratifying amendments.]
In addition to the methods of constitutional amendment provided elsewhere in this
article, the people of this state reserve unto themselves the power to propose and ratify
constitutional amendments by initiative subject to the following procedures and restrictions:
(A)
Citizen's Commission on Constitutional Amendment. .An independent
commission to consist of nine members is hereby created, which shall be known as the
"Citizen's Commission on Constitutional Amendment" or "CCCA." The CCCA shall be
/-
composed of six appointed members and three elected members. Each of the following state
officials shall appoint one person to serve as a member of the CCCA: the Speaker of the
House of Representatives; the President Pro Tempore of the Senate; the Governor; the
Anomey General; the Chief Justice of the Supreme Court; and the Chief Judge of the Court
of Appeafs. No more thao three of the appointed members of the CCCA shall be from the
same political party. Registered electors shall elect three members of the CCCA from
single-member districts. Such districts shall coincide with the state's congressional districts
unless otherwise apportioned by law. Elected members of the CCCA may not simultaneously
-,
hold another elected state office. All members of the CCCA shall serve for a term of four
years from the date they are elected or appointed. Except as specified in this constitution, the
CCCA shall prescribe its own rules of order and procedure in accordance with the State
Administrative Procedure Act. The legislature shall provide suitable quarters for the CCCA,
appropriate funds for its lawful expenses and compensate its members for their services.
(B)
Duties and Powers of the Commission. It is the duty of the CCCA to
receive, consider and vote upon initiatives to amend this constitution submitted by the people
-,
of this state. The CCCA shall have the powers necessary to carry out these duties.
(C) Approval and Circulation of Pmmtions.A petition to initiate a constitutional
amendment must be sponsored by twenty or more registered electors who shall serve as the
sponsoring committee for that initiative. Such a petition must be approved as to form by the
CCCA or its designated representative before it may be officially circulated. The CCCA
shall issue rules governing the form of a petition, the frequency with which it may be
r'
submitted, and the time, place and manner of its circulation, except that all approved
petitions mus be printed in both English and Spanish.
Certification of Petitions. After circulating an approved petition, the
sponsoring committee shall submit it to the Secretary of State for certification. The Secretary
of State shall certify an approved petition if that petition was signed by eight percent of the
registered electors in the State, including at least two percent of the registered electors in each
congressional district, and the signatures were collected in accordance with law. The number
of registered electors who signed the petition shall be measured as a percentage of the total
/-
number of votes cast for all candidates for Governor in the last gubernatorial election. The
Secretary of State shall verify that each petitioner is a registered elector in a manner
prescribed by law.
(E)
Public Hearings. The Secretary of State shall promptly file certified petitions
with the CCCA. The CCCA shall promptly provide public notice, hold public hearings and
receive written comments on each initiated constitutional amendment that is the subject of a
certified petition.
(F)
Withdrawal or Modification. Following public hearings and the opportunity
to comment on an initiated constitutional amendment that is the subject of a certified petition,
the amendment's sponsoring committee shall have the opportunity to withdraw or modify that
amendment. Any such modification must remain within the scope and purpose of the original
initiative. The CCCA by a majority vote shall make the final determination as to whether the
sponsoring committee's modification falls within the scope and purpose of the original
initiative and may issue rules governing the withdrawal or modification of initiated
amendments consistent with this article.
(G) Votes and Opinions of the Commission. Following the opportunity to
"
withdraw or modify an initiated constitutional amendment and the CCCA's final
determination regarding any modification proposed by the sponsoring committee, the CCCA
promptly shall vote either in favor of, or in opposition to, the initiated amendment as a
whole. Each CCCA member may accompany his or her vote on an initiative with a concise
written opinion, and the CCCA may cause these opinions to be published as provided by law.
0,
(H)
Submittal to the Electorate.
Following the CCCA's fmal vote on an
initiative to amend the constitution, that initiative shall be placed on the ballot at the next
general election. If a majority of the CCCA has voted in favor of an initiative, then that
initiative must receive a majority of the votes cast on the initiative in the general election in
order to become part of the constitution. If a majority of the CCCA has voted in opposition
to an initiative, then that initiative must receive at least two-thuds of the votes cast on the
initiative in the general election in order to become part of the constitution.
(I)
Conflcting Amendments. The CCCA by a majority vote shall make the fmaI
r
determination as to whether an initiated amendment conflicts with any other constitutionai
amendment question that is scheduled to appear on the same ballot. If two or more
conflicting amendment questions receive the number of votes required to become part of the
constitution, then only the amendment receiving the greater number of votes shall become
part of the constitution.
(J)
Separate Voting. If two or more amendments, whether proposed by the
legislature or initiated by the people, are submitted to the voters at the same election, then
such amendments shall appear on the ballot in a manner that allows voters to vote on each of
n
them separately. This subsection shall not be construed to require that an initiated
amendment embrace no more than one subject.
(K)
R e ~ c z i o m .Neither this article nor any other conslitutional provision
regarding amendment of this constitution shall be subject to the people's power to initiate
constitutional amendments. The people's power to initiate constitutional amendments shall
not be used to denigrate the constitutional rights of minorities.
1
During 1992-93, the constitutional initiative generated
1
34 proposed amendments, "a record high as measured by biennium
averages during the past 60 years."
Janice C. May, State
Constitutions and Constitutional Revision, 1992-93, in 30 Boox
THE
STATES 2 (Council of State Gov'ts
2
or
ed., 1994-95 ed. 1994).
David Kehler and Robert M. Stern, Initiatives and the
1980s and 1990s, in 30 Boor
or THE
STATES, supra note 1, at 279,
By comparison, only three state legislatures passed term
286.
limits bills during this period.
3
Id.
See Evans v. Romer, 882 P.2d 1335 (Colo. 1994), cert.
granted, 115 S. Ct. 1092 (1995); LULAC v. Wilson, 908 F. Supp.
755 (C.D. Cal. 1995).
While these initiatives were pending in
court, Californians were in the process of placing another
initiative on the ballot to end affirmative action programs that
h
64
benefit women and racial minorities.
See Pamela Burdman
&
-,
Aurelio Rojas, Affirmative Action Ban Set for Ballot:
Supporters Turn in Over a Million Signatures, S-
CCRI
F-NCI-CO
CHRON., Feb. 22, 1996, at All.
See Hans A. Linde, When Initiative Lawmaking is not
1
"Republican Government": The Campaign Against Homosexuality, 72
OR.
L. REV. 19 (1993). The claim that state initiatives violate
the guaranty clause was also raised during an earlier era.
W~rrxunHow==
5
TAP-, POP-
See
G O V E ~ N ~ E N T72-80 (1913).
See Robert F. Williams, The State Constitutions of the
Founding Decade:
Pennsylvania's Radical 1776 Constitution and
its Influences on American Constitutionalism, 6 2 T-WZ.~ L. REV.
541, 544-48 (1989).
6
r-
Richard Briffault, Distrust of Democracy, 63 TEX. L.
Lv.1347,
1350 (1985) (reviewing DAVID B.
LEGISLATION: VOTING
(1984))
ON
DIRECT
~ C ~ L E ~ Y ,
BALLOT PROPOSITIONSIN
THE
UNITED STATES
.
Thomas Gais
7
&
Gerald Benjamin, Public Discontent and
the Decline of Deliberation:
Reform, 68 TEMPLEL.
&v.
A
Dilemma in State Constitutional
1291, 1292 (1995).
8
Id. at 1314.
9
The two states that required popular ratification of
their original constitutions were Massachusetts and New
Hampshire.
10
Williams, supra note 5, at 546-47.
James A Henretta, Foreword:
Rethinking the State
Constitutional Tradition, 22 RuTam~sL.J. 819, 826-27 (1991).
,--~
65
Maryland ~eclarationof Rights of 1776, art. IV, in 4
11
SOVRCES
-D
DOC-ENTS
UNITED STATES CONSTITUTIONS 372 (William
F. Swindler ed. 1975).
12
One of the more extreme exercises of this inherent
power occurred in Georgia in 1945, when the legislature proposed,
and voters accepted, a single, 92-page amendment that replaced
the statels 1877 constitution in its entirety.
Despite the fact
that the enactment of this ttamendmenttt
plainly violated the
procedures expressed in the 1877 constitution, the Georgia
Supreme Court upheld the new constitution as an exercise of the
people's
inherent power.
Wheeler v. Board of Trustees, 37 S.E.2d
322 (1946); see Michael G. Colantuano, Comment, The Revision of
American State Constitutions:
Legislative Power, Popular
Sovereignty and Constitutional Change, 75 C-.
L. F&v.
1473,
1482-86 (1987).
1
,
See Colantuano, supra note 12, at 1476.
I4
DAVID D. S C ~ K ~ D T ,CITIZEN LA-XERS:
TXE BAX-MT
INITIATIVE F~VOLUTION 4-5 (1989).
IS
Bucx'a
16
DAVID B. MAOLEBY, DIRECT LEGISLATION: VOTING
LAW DICTIONARY 784 (6th ed. 1990).
~ROROSITIONS
IN THE
ON
BALLOT
UNITED STATES 35-36 (1984).
17
BLACK'S
le
LLE
DIRE~Y
LEGISUTION,
,
19
S C ~ I D T ,supra note 14, at 5-8.
20
Id. at 16-17.
21
LGLEBY,
DIRECT LBOISLATION~ supra note 16, at 38-39.
LAW DICTIONARY, supra note 15, at 1281.
supra note 16, at 36.
/-'
22
D O ~ O T H YI. CLINE, NEW M E X S C O ~ B 1910 CONSTITUTION:
A
,f--.
lgTIlC=NTURY PRODUCT 44-45 (1985); Thomas J. Mabry, New Mexico's
Reminiscences of 1910, 19 N.M.
Constitution in the Making:
HIST.
REV. 168, 177-80 (1943); Edward D. Tittmann, New Mexico
Constitutional Convention:
Recollections, 27 N.M.
HIST. REV.
177, 181 (1952).
21
SCHMIDT, supra note 14, at 6-9.
24
Pacific States Tel.
&
Tel. Co. v. Oregon, 223 U.S.
118
(1912).
P
15
SCMIDT, supra note 14, at 24.
26
TLIFT, supra note 4, at 54.
27
Id. at 64.
08
See William F. Swindler, State Constitutions for the
20th Century, 50 NEB. L. REV. 577, 585 (1971) (quoting George W.
Wickersham, New States and Constitutions, 21 YALB L.J.
1, 24
(1911)).
29
Swindler, supra note 28, at 585.
seen in the Supreme Court's
This obsession can be
decision to invalidate a New York law
setting an eight-hour day for bakers.
Lochner v. New York, 198
U.S. 45 (1908).
30
Swindler, supra note 28, at 585-86.
31
See MAGLBBY, DIRECT LEGISLATION, supra note 16, at
38-39; Thomas C. Marks, Jr.,
the People:
One State's
Constitutional Change Initiated by
Unhappy Experience, 68 TEMPLE L. REV.
1241 (1995) (providing a history of the initiative provision in
Florida's
constitution).
32
Henretta, supra note 10, at 830-31.
For a listing of
the states that employed constitutional revision commissions
during the middle of the twentieth century, see Albert L. S t u n ,
The Development of American State Constitutions, PU~LIUS: THE
J
o
,
31
FED=-LISX,
New Mexico's
Winter 1982, at 57, 84-86.
Constitutional Revision Commission (NMCRC)
estimated that it would cost $ 4 million to hold a constitutional
convention in 1995.
NMCRC, REPORT
OF
TWE
CONSTITUTION-
&VISION
C O M M I P ~ X O N98-99 (Dec. 1995).
31
During the four-year period from 1967 to 1970, the
products of constitutional conventions in seven states, including
New Mexico, were rejected by voters.
590-91.
Swindler, supra note 28, at
For a discussion of how more recent efforts to call a
state constitutional convention have failed, see Gais & Benjamin,
supra note 7, at 1303-04.
15
According to one recent survey, "the number of active
constitutional commissions has declined from thirty-two between
1965 and 1969, to nine between 1975 and 1981, and down to three
between 1990 and 1991.
Gais
&
Benjamin, supra note 7, at 1303.
36
May, supra note 1, at 5.
37
See e.g.,
1994).
N.M. STAT. ANN. 5 5 12-15-1 to -7 (Repl. Pamp.
Other constitutional commissions operating under
statutory authority are listed in May, supra note 1, at 26-27.
18
See FLORIDA CONST. art. XI, 5 6.
PP
See e-g., TEXAS CONST. art. XVII, 5 2 (created to
prepare for the state's
convention of 1974).
-
40
See e.q.,
New York Executive Order 172 (May 26, 1993)
A
(temporary commission created by governor to evaluate convention
processes and start discussions about proposed revisions).
I
.
May, supra note 1, at 26-27.
.2
Id. at 4.
43
Id. at 3.
4.
SCWMXDT,
.5
Id. at 224.
a6
See Note, California's
supra note 14, at 222-23.
Constitutional Amendomania, 1
STAN. L. REV. 279, 281 (1949).
47
CAL. CONST. art. IV, 5 lc (1948, amended 1966) (current
version at CAL. CONST. art. 11, 5 8(d)).
Other states have tried
to curb the use of the initiative with a single-subject
r
requirement.
See, e.q.,
history of Florida's
48
Marks, supra note 31 (recounting the
single-subject requirement).
Marilyn E. Minger, Comment, Putting the nSinqlel*Back
in the Single-Subject Rule:
A Proposal for Initiative Reform in
California, 24 U. CAL. DAVIS L. I&".
49
879, 896 (1991).
See Amador Valley School Dist. v. State Bd. of
Equalization, 583 P.2d 1281 (1978).
60
See Raven v. Deukmejian, 801 P.2d 1077 (1990).
SI
See Jon Matthews, State's
Attack:
Initiative System Under
Dozens of Plans Aim at Reform, SAC-ENTO
BEE, Mar. 31,
1991, at A3.
52
See Kehler and Stern, supra note 2, at 287.
SI
MISS. CONST. art. XV, 5 273: see May, supra note 1, at
3.
&
For additional examples of the indirect initiative, see Gais
Benjamin, supra note 7, at 1309-10.
THO-s
54
E. C ~ N X N DIRECT
,
DEMOCRACY: THE POLITICS
LFERENDUM
-D
F&CIIL.L.
,,,,,,,,,L
54 (1989).
OF
This notion was
still in the minds of voters when Florida added an initiative
provision to its state constitution in 1968 in response to
"decades of abuses perpetrated by a badly malapportioned
legislature
. . . ."
Marks, supra note 31, at 1241.
See Dennis W. Arrow, Representative ~overnmentand
55
Popular Distrust:
The Obstruction/Facilitation Conundrum
Regarding State Constitutional Amendment by Initiative Petition,
CXTY U.L. REV. 3, 16-17 (1992) (citing ARXSTOTLE, Tns
17 OK-.
POLITICS Book 111, ch. vi, at 189 (T. Saunders rev. trans.
1981))
ss
.
-.
. .,.
CRONXN, supra note 54, at 55 (quoting from an 1898
speech by Edwin L. Godkin, editor of TIE NATION).
57
SC-IDT,
supra note 14, at 30 (citing a study by the
California state chapter of Common Cause).
,a
See Thad Beyle and Rich Jones, Term Limits in the
States, in 30 BOOK
OF
THE
STATES, supra note 1, at 28.
ss
CLINE, supra note 22, at 32-33.
60
CRONIN, supra note 54, at 55-56.
61
John Meyers, Remarks at the Second Annual Symposium on
Elections (Dec. 1994), quoted in A.D.
Initiative Reform:
Ertukel, Debating
A Summary of the Second Annual Symposium on
Elections at The Center for the Study of Law and Politics, 2
J.
,-
.n..
L.
POL. 313, 316 (1985).
&
California Republicans argue that
gerrymandering of electoral districts in favor of Democrats
necessitated the increased use of the initiative in recent years.
Id.
62
U r o w , s u p r a note 55, a t 22-23, offers a simple example
of logrolling found in the conflict between federal budget
deficit reduction and increased spending on defense and
entitlement programs.
Though the majority of taxpayers may
strongly favor reducing the deficit over increased spending on
either defense or entitlements, Congress in recent years has been
unwilling to side with this majority.
In order to reduce the
deficit by a significant level, Congress would have to cut both
defense and entitlement spending and thereby risk alienating two
F
minority factions that together can overpower the taxpaying
majority.
63
Gais
&
Benjamin, s u p r a note 7, at 1297.
e.
CRONIN, s u p r a note 54, at 56.
65
See S C ~ ~ ~ I DsTu ,
p r a note 14, at 30-34.
66
CRONIN, s u p r a note 54, at 48 (quoting J.W. SULLIVAN,
DIRECT LEGISL~TSONU Y
THE
CITIZENSHIP
T-OUQII
THE
INXTI~TIVEAND
REF~RENDWM5 (1893)).
6,
Id. at 196.
6a
Briffault, s u p r a note 6, at 1368.
69
CRONIN, s u p r a note 54, at 97.
70
Arizona enacted a "motor voterm law by initiative in
1982, and Colorado soon followed with its own "motor voter"
initiative in 1984.
SC-IDT,
Supra note 14, at 30.
71
See generally Beyle & Jones, supra note 58.
72
For more on the issue of tax reform initiatives, see
Gais & Benjamin, supra note 7, at 1293-94, and sources cited
therein.
73
7.
See SC-ZDT,
supra note 14, at 143.
New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)
(Brandeis, J., dissenting).
7s
J ~ c xL M Ar
~ ,&ERICAN
IZENAISBANCE:
A S-TEOY
FOR
TXE
1980s, at 189 (1979).
76
See David D. Magleby, Let the Voters Decide?
An
Assessment of the Initiative and Referendum Process, 66 C a ~ o .L.
REV. 13, 29. (1995).
77
See Arrow, supra note 55, at 46-48 (citing several -.
studies suggesting a correlation between voter turnout and ballot
initiatives).
7e
See id. at 48; SC-ID=,
79
SC-ID-,
80
See Arrow, supra note 55, at 49.
(I1
See Sc-X~T, supra note 14, at 27-28.
82
See Arrow, supra note 55, at 26-28.
83
Letter from Thomas Jefferson to James Madison (Dec. 20,
supra note 14, at 26-27.
supra note 14, at 27.
1787), reprinted in Ga-T
Iseul~sIN
HI--RY
115 (Richard
Hofstadter ed. 1958).
a.
The term "initiative industryw was coined by David
Magleby in DIRBCT LEOISSLATION, supra note 16, at 59.
-~
In California, only twenty percent of the proposals
as
P-.
that were titled actually made it to the ballot during the 1980s.
Magleby, Let the Voters Decide, supra note 76, at 23, 28.
86
LGLEBY, DIRECT LEISIQ~TION,
supra note 16, at 61.
In one such example, agricultural interests "sent young
87
people into middle class neighborhoods with large glossy pictures
of Chicanos picking onions.
Residents were told
. . . that by
signing the petition they would be 'helping farm workers.'"
The
real purpose of the initiative petition was to restrict farm
labor organizing practices.
aa
Ertukel, supra note 61, at 319.
The U.S. Supreme Court struck down a Colorado law that
prohibited the use of paid signature collectors. See Meyer v.
Grant, 486 U.S. 414 (1988).
,P.
For a compelling critique of this
decision, see Daniel H. Lowenstein
&
Robert M. Stern, The First
Amendment and Paid Initiative Petition Circulators:
A Dissenting
View and a Proposal, 17 HIS TINE^ CONST. L. Q. 175 (1989).
09
Magleby, Let the Voters Decide, supra note 76, at 30.
90
Id. at 24; see also Matthews, supra note 51, at A3.
91
See Minger, supra note 48, at 885.
But see Daniel H.
Lowenstein, California Initiatives and the Single Subject Rule,
30 U.C.L.A.
L. REV. 936, 958 (1983) (arguing that the presence of
these types of logrolling in the initiative process is "probably
benign" )
.
92
Magleby, Let the Voters Decide, supra note 76, at 30.
9-3
Id.
9.
Id. at 31.
-
9s
Id. at 33.
96
Gais & Benjamin, supra note 7 , at 1302.
-7
L ~ L EDIRECT
B Y ,LEOISLATION,supra note 16, at 116-17.
98
Magleby, Let the Voters Decide, supra note 76, at 25.
9e
Gais
1W
This initiative was held to violate the Fourteenth
&
Benjamin, supra note 7 , at 1300.
Amendment of the U.S. Constitution in Reitman v. Mulkey.
387
U.S. 369 (1967).
101
See Michele Arington, English-Only ~ a w sand Direct
Legislation:
Riqhts,
102
the Battle in the States Over Language Minority
7 J. L.
&
POL. 325, 343 (1991).
See See Evans v. Romer, 882 P.2d 1335 (Colo. 1994),
cert. granted, 115 S. Ct. 1092 (1995); Linde, supra note 4.
103
See LULAC v. Wilson, 908 F. Supp. 755 (C.D. Cal. 1995).
101
See Burdman
10s
&
Rojas, supra note 3 , at All.
See Julian N. Eule, Judicial Review of Direct
Democracy, 99 YALE L. J. 1503, 1581-82 (1990).
106
Magleby, Let the Voters Decide, supra note 76, at 37.
107
TAP-T,supra note 4, at 63-64.
10s
M A ~ L E S Y ,DIRECT LEGIS-TION,
109
See Ertukel, supra note 61, at 332.
110
Stanley Mosk, Speech at the Second Annual Symposium on
supra note 16, at 18-90.
Elections, (December 1984), quoted in Ertukel, supra note 61, at
329.
As an example of a flaw in a recent initiative, Mosk makes
the following observation about California's
"Victims Bill of
-
r-\
Rightsw Initiative:
"The measure provides that any prior
conviction of a felony, whether by an adult or juvenile, may be
used for impeachment of a witness.
Now the person who sat down
at the typewriter to write the measure had in mind that it would
aid in convicting a defendant who had a past criminal record.
But as written, it applies to all witnesses for the defense and
prosecution.
So if we say we had an elderly lady who was mugged
and is a prosecution witness against the mugger, she may be
humiliated by the defense lawyer by bringing up that as a
juvenile she was convicted for burglary or shoplifting
....
Now, knowing that this ancient past could be dredged up, would
that lady willingly come forward to testify against the mugger?
Obviously not."
r-
1x1
Id. at 329-30.
Magleby, Let the Voters Decide, supra note 76, at
43-44.
112
Id. at 46: Gais
&
Benjamin, supra note 7, at 1309-10:
Richard B. Collins & Dale Oesterle, Structuring the Ballot
Initiative:
Procedures that Do and Don't
Work, 66 U. COLO. L.
REV. 47, 107 (1995); Kehler & Stern, supra note 2, at 287-88
(summarizing the recommendations of three recent California
studies); CRONIN, supra note 54, at 237-38.
113
Gais
&
Benjamin, supra note 7, at 1310-13.
Coupled
with the idea of a permanent constitutional commission is the
idea that the initiative process should include notice and
comment requirements similar to those found in administrative
rulemaking.
Id. at 1310.
Greater reliance on civil society
carries with it the notion that community organizations and the
-.
like should serve as the primary sponsors of initiative
petitions.
114
Id. at 1314.
Arrow, supra note 55, at 79; CRONIN, supra note 54, at
234-35; Kehler & Stern, supra note 2, at 287-88.
115
Kehler & Stern, supra note 2, at 287-88; Collins &
Oesterle, supra note 112, at 110.
116
Magleby, Let the Voters Decide, supra note 76, at 46;
Collins & Oesterle, supra note 112, at 121.
117
Arrow, supra note 55, at 80: CRONIN, supra note 54, at
235; Collins & Oesterle, supra note 112, at 115.
XZ(L
Arrow, supra note 55, at 84; Collins & Oesterle, supra
note 112, at 109;
L o ~ s a ~
DIRECT
,
LEOIS-TION,
supra note 16, at
7
195.
119
Arrow, supra note 55, at 85; Kehler
&
Stern, supra note
2, at 287-88; CRONIN, supra note 54, at 238.
120
CRONIN, supra note 54, at 235-37; Kehler
&
Stern, supra
&
Stern, supra
note 2, at 287-88.
121
CROWIN, supra note 54, at 238-39; Kehler
note 2, at 287-88.
122
CRONIN, supra note 54, at 239.
123
Id. at 240.
12.
See Catron County, N.M.,
Ordinance 004-91 (May 21,
1991); Anita P. Miller, Private Rights in Public Lands:
Battle Intensifies, 27 U-.
121
The
LOO.
889 (1995).
See Boundary Backpackers v. Boundary County, No. 21287,
r'>
76
1996 WL 116092 (Idaho Mar. 18, 1996): United States v. Nye
?i
County, No. 95-00232-LDG (RJJ) (D. Nev. Mar. 14, 1996).
In 1995, over 100 western counties had passed such
116
plans and ordinances. Miller, supra note 124, at 891: see also
Scott W. Reed, The County Supremacy Movement:
Marketing, 30 ID-o
movement
Mendacious Myth
L. REV. 525 (1994). Members of the county
have conducted initiative and referendum campaigns with
a mild degree of success in states where such campaigns are
possible.
Recent examples include the property rights
initiatives and referenda in Arizona and Washington.
Murphy, Northwest's Landmark Land War:
See Kim
Washington's Voters Could
Make Government Pay for Any Action that Hurts Property Values,
LOS
r-
T I M E S , Oct. 28, 1995, at Al; Steve Yozwiak,
&-E-9
Proposition 300:
Private Property Rights Protection Act Puts
State in National Spotlight, &I=. R~PUB=IC,NOV. 2, 1994, at 10.
Joseph Skinner, Green Party Revival: New Mexico, T.IE
117
P ~ o o n a s s ~ v EMay
,
1995,
SCHMIDT, supra note 14, at 173-74; see also CH.=.RLENE
118
SPRE-AX
at 14.
&
FRIT-P
CAP-,
&=EN
POLITICS
(1986).
A recent
example from the United States is the Green Party's campaign for
a referendum on logging in Maine. See Andrew Kekacs, Vote to Ban
Clear-Cutting Sought:
Maine Green Party Claims Enough Support to
Get Question on '96 Ballot, B-QOR
129
DAILY NEWS, NOV. 16, 1995.
See Magleby, Let the Voters Decide, supra note 76, at
24 n.46.
110
The proposed amendment reduces this risk but does not
eliminate it.
The legislature may still pass its own legislative
proposal that serves the same function as a counter initiative.
However, such a proposal.cannot masquerade as an atamendment"of
an initiative.
131
In this respect, the rationale for not allowing the
legislature to amend initiatives parallels the rationale for not
allowing the legislature to amend revisions proposed by a
constitutional revision commission.
See NMCRC, supra note 33, at
101.
13.2
Cal. Comm. Rpt. on Senate Const. Amend. No. 22, 1995-96
Regular Session (1995).
133
Id.
134
See Magleby, Let the Voters Decide, supra note 76, at
...-.
37.
IIS
Gais & Benjamin, supra note 7, at 1313.
136
This requirement is intended to avoid the effect of
recent court rulings that allowed aaEnglish-onlyla
initiative
petitions on the grounds that the initiative process is not
protected by the federal Voting Rights Act.
See Delgado v.
Smith, 861 F.2d 1489 (11th Cir. 1988), cert. denied, 492 U.S.
918
(1989); Montero v. Meyer, 861 F.2d 603 (10th Cir. 1988), cert.
denied, 492 U.S. 921 (1989).
130
The proposed amendment does not impose a single-subject
requirement on initiated amendments.
within the commission's
However, it is certainly
discretion to consider the number of
subjects that an initiative embraces in deciding whether to
,?
There are two main reasons why the single subject
oppose it.
,f-
requirement was omitted from the proposed amendment.
First, such
a requirement may impose an arbitrary barrier to comprehensive
reform.
Second, there are no clear standards for enforcing such
a requirement.
Florida's
See Marks, supra
note 31, at 1289 (commenting on
struggle to interpret its single-subject requirement).
Hence, the requirement is superfluous and probably amounts to the
same thing as allowing the commission to exercise its discretion.
1311
For criticism of counter initiatives, see Magleby, Let
the Voters Decide, supra note 7 6 , at 24.
139
Subsection (K) of the proposed amendment specifically
prohibits initiatives that denigrate the constitutional rights of
minorities.
,
However, the commission has some discretion in
defining what denigrates minority rights, and the question is
ultimately to be decided by the courts.
1
.
0
See SCHMIDT, supra note 14, at 287-94.
Notably absent
from the list of initiatives that obtained the votes of
supermajorities are California's
Proposition 187, see LULAC v.
Wilson, 908 F. Supp. 755, 763 (C.D. Cal. 1995) (passed by a vote
of 59% to 41%), and Colorado's
anti-gay initiative.
See Romer v.
Evans, 882 P.2d 1335, 1338 (Colo. 1994) (passed by a vote of
53.4% to 46.6%),
1
.
1
cert. granted, 115 S. Ct. 1092 (1995).
Lobbying and ex parte communications could be the
subject of administrative rulemaking or implementing legislation,
however.
142
For additional guidance, the commission and the courts
may turn to Justice Lindels recent listing of initiatives that
are suspect because they target minorities.
note 4, at 41-42.
See Linde, supra
However, the restrictions in subsection (K) do
not spring from Justice Lindels argument that anti-minority
initiatives violate the guarantee clause of the U.S.
Constitution.
n