ABSTRACT

As with other arenas of electoral law, opposing lawyers in courthouses across the United States are battling over ballot measures. The most commonly used mechanism of direct democracy, the initiative, allows individuals to petition a requisite number of signatures to place a statutory or constitutional measure on the ballot for citizens to adopt or reject at the polls.1 From the recent decision by the Supreme Court of the United States, Doe v. Reed, upholding the state of Washington’s public disclosure of signatures on ballot measures, to the upcoming hearing by the high court on the constitutionality of Proposition 8, California’s 2008 initiative banning same-sex marriage, judicial challenges are a central part of direct democracy. If the flurry of legal challenges seems almost as commonplace as the ballot measures themselves, the level of vitriol between defenders of citizen lawmaking and those who wish to provide safeguards on the process is equally intense. The push-and-pull to regulate the “the will of the people” is as heightened today as ever over the century-old practice of direct democracy in the American states (Cain and Miller, 2001; Smith and Tolbert, 2004).