Direct Democracy and Civil Rights: The Importance of Strict Procedure and Opportunity to Challenge Anti-Gay Ballot Initiatives

Matthew R. Panichi

INTRODUCTION A pure democracy can admit no cure for the mischiefs of faction. A common passion or interest will be felt by a majority, and there is nothing to check the inducements to sacrifice the weaker party. 1

Lets put it on the ballot.2 A common battle cry from those who seek to circumvent representative democracy, this call for a public vote is the quintessential solution espoused by those behind anti-gay, direct democracy ballot measures. After all, we live in a democracy. Should we not be able to decide issues based on the democratic principle that the majority shall rule? At first reaction, the answer seems simple. However, as the above quote from James Madison suggests, common passions of a majority party can lead to the unfair treatment of those in the minority. Nowhere better is this seen than in the use of anti-gay ballot measures in the present-day direct democracy process. Since the beginning of the 20th century, direct democracy has continually gained momentum in the United States. Today, there are twenty-four states that 1 THE FEDERALIST, NO. 10, at 133 (James Madison) (B.F. Wright ed., 1961). 2 Chris Christie, Governor of New Jersey, Statement calling for a same-sex marriage ballot initiative (Jan. 24, 2012), available at http://www.mrctv.org/videos/chris- christie-calls-gay-marriage-ballot-initiative (last visited May 18, 2012). 1

provide this populist form of governance either through a direct ballot vote (ballot initiatives) or referendum.3 In 2012 alone, over seventy questions have been approved to appear on ballots across the United States and because it is a presidential election year, that number is expected to grow.4 Issues range from tax measures, eminent domain and congressional terms limits, to more divisive matters such as abortion and gay marriage. This essay focuses on the latter category, those that implicate civil rights and protections guaranteed under the Constitution. This essay will first look into the most current example of the use of direct democracy to withhold marriage equality right to same-sex couples. Followed by a brief history of the origins of direct democracy, including the early arguments made by our Founders against such an institution, the second section of the essay focuses specifically on how direct democracy has been used to deny equality to gays and lesbians. In the final section, suggestions and arguments are made that, if implemented within the direct democracy framework, could serve to better protect civil rights and the rights of unpopular minority groups.

3 INITIATIVE & REFERENDUM INSTITUTE, State I&R, IRI, http://www.iandrinstitute.org/statewide_i%26r.htm (last visited May 18, 2012). 4 In 2008, there were 174 ballot questions. 2008 BALLOT MEASURES, Ballopedia, http://ballotpedia.org/wiki/index.php/2008_ballot_measures (last visited May 18, 2012). 2

I. AN INTRODUCTION TO DIRECT DEMOCRACY: PAST AND PRESENT A. North Carolina. A Glimpse into Direct Democracy On May 8, 2012, North Carolinians went to the polls and had the opportunity to vote on Amendment 1, which ballot language described as A Constitutional amendment to provide that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized by this State.5 Surprisingly, defining marriage through constitutional amendment is not unique. North Carolina is now the 30th state to ban same-sex marriage through a constitutional amendment. What is unique about this vote, however, is that samesex marriage was already illegal in North Carolina. It was banned in 1996 by the state legislature. Why then, the need for Amendment 1? The answer is two-fold. First, the amendment does more than just define marriage as between a man and a woman. As discussed below, it goes much further than that. Secondly, amid the growing support behind allowing same-sex couples to marry, constitutional amendments provide conservative groups who oppose marriage equality with something they desperately need - an almost immovable roadblock.6

5 S. 514 2011 Leg., 409th Sess. (N.C 2011). 6 2011 Gallup Poll suggesting 53% of Americans support the legalization of same- sex marriage. GALLUP (May 20, 2011), available at http://www.gallup.com/poll/ 117328/marriage.aspx (last visited May 18, 2012). 3

Although same-sex partners do not have a legal right to marry in North Carolina, there are some parts of the state that offer domestic partnerships.7 Through those partnerships, same-sex couples have the opportunity to take advantage of benefits offered to public employees, including access to health care. However, because of the broad language of Amendment 1, these rights will more than likely be stripped. And because the language of the amendment states that marriage between one man and one woman is the only domestic legal union that shall be valid or recognized by this State, the potential for the future offering of civil unions to same-sex partners in the state is virtually eliminated.8 This effect leads into the second goal of the amendment, which is to prevent future rights being extended to same-sex couples. Amendment 1 effectively cements this new definition of marriage into state law and shields it from redefinition by either the state legislative or judicial branches. As opponents of same-sex marriage have found, the tactical response to the growing trend in support for gay marriage and civil unions is to hit the pause button and stop social progress in its tracks. North Carolina has shown us there is no better way to achieve this than to amend their constitution. 7 Durham and Orange Counties, along with the cities of Durham and Greensboro, and also the towns of Chapel Hill and Carrboro offer domestic partner benefits to public employees. 8 According to the ACLU, the phrase domestic legal union has never been used in the state and will undoubtedly be subject to various and potentially harmful interpretations. Rachel Blunk, Maxine Eichner, Barbara Fedders & Holning Lau, Potential Legal Impact of the Proposed Same-Sex Marriage Amendment to the North Carolina Constitution (June 6, 2001), available at http://www.acluofnc.org/file s/Final%20Marriage%20Amendment%20Report%202.pdf (last visited May 18, 2012). 4

Time will tell how far the negative affects of Amendment 1 will reach. A few things are known, however. Conservative lawmakers in North Carolina had been trying to get this amendment on the ballot for the past eight years. In 2011, finally in control of both the house and the state senate for the first time in over 140 years, they succeeded. Vote For Marriage N.C., the organization behind the Amendment 1 push, then began their campaign. Armed with television commercials that stated marriage is what God created to give children a mother and a father, the organization received 70% of its financing from self-described conservative religious organizations.9 Adding to this misfortune is early evidence of the possibility that the success of Amendment 1 may have been due to unclear ballot language. Just a little over a week prior to the vote, Public Policy Polling revealed that only 40% of potential voters were aware that the amendment would ban both same-sex marriage and civil unions. When asked whether they would vote for the amendment knowing it banned both, only 38% said they would.10 Unfortunately, we may never know the full extent to which ballot language uncertainty played in the success of the amendment. Taken as a whole, however, the amendment serves as the quintessential example of how direct democracy can serve as a tool to deprive civil rights to a minority group. 9 Mark Binker, Money Totals for Lead Groups in Amendment Fight, (May 1, 2012), available at http://www.wral.com/news/state/nccapitol/blogpost/11041104/ (last visited May 18, 2012). 10 Amendment One Still Up 14 Points in N.C., Public Policy Polling (May 1, 2012), available at http://www.publicpolicypolling.com/main/2012/05/amendment-one- still-up-14-points-in-nc.html (last visited May 18, 2012). 5

B. History of Direct Democracy We cannot claim ignorance as to the dangers of direct democracy. Allowing citizens to enact laws directly, instead of through representatives, was worrisome to those who founded this Country. James Madison, the Father of the Constitution, was vehemently opposed to allowing direct democracy and argued strongly against such government in his famously entitled Federalist 10. Pure democracy, in his words, can admit no cure for the mischiefs of faction.11 By faction, Madison was referring to citizens who are united and actuated by some common impulse of passion.12 He went on to write that A common passion or interest will, in almost every case, be felt by a majority of the wholeand there is nothing to check the inducements to sacrifice the weaker party.13 Popular government, or direct government, he concluded, enables majorities to sacrifice to its ruling passion or interest both the public good and the rights of other citizens.14 Madison fought for and won his argument for representative democracy. Those who wrote the Constitution understood the need for a filtering process in the manner which we enact laws. The representative democracy, or republican form of government, they argued, would have a voice that was more consonant

11 THE FEDERALIST NO. 10, at 133 (James Madison) (B.F. Wright ed., 1961). 12 Id. 13 Id. 14 Id. 6

to the public good than if pronounced by the people themselves.15 By enacting legislation through elected representatives, laws would therefore be appropriately filtered. Lawmakers serve as a buffer between the people and the laws enacted upon them. They hold hearings, deliberate, fight for a consensus, even compromise.16 Each law must pass two chambers, sometimes getting sent back to the chamber of origin several times. Once that process is complete, laws are then subject to approval from the governor, who, in most states, can either sign, veto, or pass without signature. If he or she does choose to veto the bill, both chambers then have an opportunity to override the veto with a two-thirds majority vote. It is a long, arduous and sometimes ineffective process. However, it was chosen due to its ability to protect minority parties from majority rule. For one hundred and twenty-four years, direct democracy was relatively nonexistent in the United States. In 1911, California voted to enact legislation that would provide citizens the opportunity to introduce both ballot initiatives and referendums.17 Since then, twenty-three other states have enacted laws into their state constitutions to allow their citizens to do the same.18 Ballot initiatives are by far the more popular form of direct citizen legislation. Over 70% of citizens in the United States live in a city 15 Id. 16 Daniel C. Lewis, Bypassing the Representational Filter? Minority Rights Policies under Direct Democracy Institutions in the U.S. States, 11 STATE POLITICS & POLICY QUARTERLY, 198, 200 (2011). 17 Karl Manheim, John S. Caragozian & Donald Warner, Rebooting California Initiatives, Conventions and Government Reform: Symposium Introduction, 44 Loy. L.A. L. Rev. 393, 405 (2011). 18 Daniel A. Smith & Caroline J. Tolbert, Representation And Direct Democracy in the United States, 42 JOURNAL OF REPRESENTATIVE DEMOCRACY, 25 (2006). 7

or state that uses the initiative process, which allows citizens to propose laws and directly vote on those measures.19 The referendum process, although not used as frequently, is very similar. Referendums are used retroactively to repeal laws previously enacted by state or local legislatures.20 All in all, over 2,300 ballot initiatives have been voted on, with a passage rate just over 40%.21 Initiatives and referendums have been used to vote on just about every fiscal and social issue subject to legislation, including taxes, marijuana laws, environmental preservation, gun control, abortion, marriage laws and health care. Unfortunately, the civil rights of many citizens end up in the cross fire, either through direct attack or as the byproduct of laws passed under other stated goals. The civil rights of gays and lesbians are no exception.

II. DIRECT DEMOCRACYS AFFECT ON CIVIL RIGHTS, GAY RIGHTS Since its inception, the process of direct democracy has long been affecting civil rights of American citizens, including those of unpopular minority groups. History has shown that time and time again, when civil rights some which have been deemed fundamental under the Constitution are subject to popular vote, those rights can be infringed upon. African American voting rights, 19 Id. 20 What are Ballot Propositions, Initiatives, and Referendums? Initiative & Referendum Institute at the University of Southern California (2011), available at http://www.iandrinstitute.org/Quick%20Fact%20-%20What%20is%20I&R.htm (last visited May 13, 2012). 21 Overview of Initiative Use, 1904-2009, INITIATIVE & REFERENDUM INSTITUTE, (September, 2010), available at http://www.iandrinstitute.org/IRI%20Initiative%20Use%20(2010-1).pdf (last visited May 18, 2012). 8

womens suffrage, race-based employment discrimination and abortion rights all have suffered horrible defeats at the ballot box.22 Historically, ballot measures have involved targeting the civil rights of minority groups in relation to housing and accommodations, school desegregation, English only laws and AIDS policies.23 Research has shown that citizens have approved over three-fourths of ballot measures restricting civil rights, compared to only a third of all measures in general.24 The rights of gays and lesbians have not been spared from direct democracy. In fact, in most cases they are the intended targets of ballot measures with the goal to either stop progress toward equality, or in some instances, strip rights that have already been afforded. According to Amy Stone, a professor of sociology who has written extensively on the subject, the proficiency of direct democracy measures targeting rights of gays and lesbians grew after early success in local anti-gay referendums in the 1970s.25 These referendums, she claims, were the Religious Rights response to small gains the LGBT were making at the local level.26 Emboldened by their success at the voting booth, starting in the late 1980s, more and more statewide ballot measures began to be introduced.27 From 1993 to 1996, thirteen states and over thirty cities and towns attempted to introduce 22 Amy L. Stone, Gay Rights at the Ballot Box, 3 (Univ. of Minn. Press 2011). 23 Barbara S. Gamble, Putting Civil Rights to a Popular Vote, 41 AMERICAN JOURNAL OF POLITICAL SCIENCE, 245, 253 (1997). 24 Id. at 245 25 Stone, supra note 22, at 11. 26 Id. 27 Id. 9

seventy-nine anti-gay ballot measures.28 As the success of anti-gay measures grew, so did their presence on ballots. Overall, between 1974 and 2009 there were 149 anti-gay ballot measures put to public vote at both the state and local level.29 These measures included both referendums to rescind gay rights laws and also initiatives seeking to ban same-sex marriage, fire gay and lesbian teachers, and restrict any future pro-gay laws.30 Currently, the initiative is by far the more popular tactic. Whereas the referendum was used retroactively, the initiative gained popularity due to its ability to strike first and proactively pass laws. The most current data by Professor Stone divides anti-gay ballot measures into two main categories. Legal-restrictive initiatives, which account for 31% of anti-gay ballot measures, attempt to rescind any current rights held or curtail any future legislation that may grant certain rights or protections to the LGBT community.31 Marriage or partnership initiatives, accounting for 25%, are those ballot measures that seek to rescind current or constrain relationship recognition rights to same-sex couples, such as domestic partnerships, civil unions and marriage.32 This second category of ballot measures has become the more popular of the two. For instance, in 2004 alone, eleven states banned same-sex marriage through constitutional amendment.

28 Id. at 23 29 Stone, supra note 22, at XV. 30 Id. at 6 31 Id. 32 Id. 10

A major issue in these ballot measure campaigns is the opportunity to play to public fears. Not only that, but in some cases to mislead or outright lie to voters. The right to vote is one of the most cemented rights available in this Country. But armed with the wrong information information that was put forth based on stereotypes and mistruths this right can be used to exploit the direct democracy process in favor of a national anti-gay agenda. This November, two more states, Maine and Minnesota, are poised to put marriage rights up for public vote.33 Currently, in Maryland, same-sex marriage opponents are in the process of gathering signatures to place a referendum on the November ballot to repeal the Civil Marriage Protection Act passed by the state legislature in March of 2012. The Act, which passed by a 72-67 vote, made same-sex marriage legal in Maryland and would allow couples to wed as early as January of 2013. If the referendum succeeds, Maryland will serve as yet another example of the power of direct democracy to subvert representative democracy and place civil rights directly into the hands of the voting public.

III. HOW TO PROTECT MINORITY RIGHTS WITHIN DIRECT DEMOCRACY

There is a void in opportunity to prevent gay rights from being voted on in state and local ballots. Under the current constitutions of most states, a simple majority vote by its citizenry, pushed onto the ballot by groups with national 33 Josh Goodman, A Turning Point for Gay Marriage, The Pew Center on the States (May 4, 2012), available at http://www.pewstates.org/projects/stateline/headlin es/infographic-a-turning-point-for-gay-marriage-85899384474 (last visited May 18, 2012). 11

agendas and a barrage of out-of-state financing, can roll back civil rights guaranteed by federal and state constitutions, taking years of social progress with it. For example, in less than six months time, ballot initiative Proposition 8 stripped away the right to same-sex marriage, a right that the California Supreme Court had just a few months earlier deemed fundamental.34 A similar problem surfaced in 2009, after Maine was poised to become the first state to legalize same-sex marriage through the state legislature. In less than six months, with help from the same public relations firm behind the success of Proposition 8 and possibly illegal funding from the National Organization for Marriage, a 53% simple majority voted to repeal the law by referendum.35 In California, there are numerous calls from both sides of the political spectrum to rein in the direct democracy process. This sentiment was highlighted even further when California Supreme Court Chief Justice Ronald M. George proclaimed that the constitutional and statutory structure of the state has been 34 On May 15, 2008, In re Marriage Cases (2008) 43 Cal.4th 757, the California Supreme Court struck down the states ban on same-sex marriage. On November 4, 2008, Proposition 8 was decided. 35 The National Organization for Marriage (NOM), while under investigation by the Maine Ethics Committee for allegations of violating state campaign disclosure laws, filed suit against the State to overturn those laws. As a result, a federal court ordered the unsealing of documents surrounding the involvement of NOM in the 2009 Maine referendum. One of those documents contains a message from a staff member to NOMs board of directions claiming that NOM was intimately involved in Maine from the beginning, helping create and manage the StandforMarriageMaine.com referendum committee, collecting twice as many signatures as necessary to get gay marriage on the ballot, and ultimately funding almost two-thirds of the campaign. Bill Nemitz, No Wonder Anti-Gay Group Went Confidential, The Portland Press Herald, April 1, 2012, available at http://www.pressherald.com/news/no-wonder-nom-marked-memos- confidential_2012-04-01.html 12

brought about not by legislative fact-gathering and deliberation, but rather by the approval of voter initiative measures, often funded by special interests.36 In referring to the quick and easy manner in which rights are given and taken through direct democracy in California, the Chief Justice playfully pointed to a law passed on the same day as Proposition 8 that regulated confinement in fowl coops, remarking that Chickens gained valuable rights in California on the same day that gay men and lesbians lost them.37 On a more serious note, he spoke of the need of people in his state to consider fundamentally reforming the voter initiative process or continue on a course of dysfunctional state government, characterized by a lack of accountability on the part of our officeholders as well as the voting public.38 The comments by Chief Justice George represent a growing awareness of the dangers of direct democracy and the need to reform the need to recognize that certain fundamental rights should not be subject to popular vote. How, though, do we prevent civil rights issues, including those which affect the rights of gays and lesbians, and other unpopular social groups, from being placed on ballots? The answer lies in more strict pre-ballot procedures, the requirement of supermajority votes, and the ability to preemptively challenge, in federal court, any ballot measure that infringes on a constitutionally protected right or targets a minority group. By no means does this essay suggest total abolishment of direct 36 Jennifer Steinhauer, Top Judge Calls Calif. Government Dysfunctional, N.Y. TIMES, October 10, 2009, available at http://www.nytimes.com/2009/10/11 /us/11calif.html?_r=2 (last visited May 18, 2012) 37 Id. 38 Id. 13

democracy processes within state and local government. It is, however, advocating that the aforementioned reforms, if properly implemented, can help protect the civil rights of powerless and vulnerable minorities from the potential tyranny of majority rule and secure the vision for a true representational democracy set forth by our nations founders.

A. Pre-Ballot Procedure The entire initiative and referendum process, in general, is in need of a substantial overhaul. Setting aside, for a moment, the issue of ballot measures that specifically affect civil rights or target minority groups, there are certain across-the-board changes state governments can adopt by following the lead of other states and working within the framework of the progress those states have already made. Those strategies involve stricter guidelines surrounding the initial signature gathering stage of ballot measure process. In the past five years in California, marriage rights have been extended to same-sex couples by the legislature, upheld by the State Supreme Court, then taken away by constitutional amendment, Proposition 8, the most expensive ballot initiative campaign in the history of direct democracy. The same California Supreme Court that had just affirmed the right to same-sex marriage, now handcuffed by the broken system in which allowed such measures, was forced to uphold the amendment (the right for same-sex couples to marry was reinstated

14

by the ninth circuit in Perry v. Brown).39 The direct democracy procedures in place in California are not unique to that state, as the numerous states that allow initiatives and referendums use very similar procedures. However, due to its position in the spotlight, Californias direct democracy system highlights the need for state-by-state reform. When the decision In re Marriage Cases was handed down, the largest anti-gay campaign in the countrys history was launched.4041 Religious groups, along with nationwide anti-gay marriage institutions and large out-of-state and instate individual donors began pumping records amounts of money into the fight to amend Californias constitution and ban same-sex marriage. A staggering amount of $83 million was spent between the two sides.42 Eighteen thousand same-sex couples had been legally married since the California Supreme Court overturned the States ban on gay marriage. Their constitutionally protected right to marry, along with the right of future same-sex couples wishing to do the same, was now going to be decided through a statewide popular vote. However, with so much at stake, anti-gay groups needed to only collect just over 690,000 signatures in order to get the proposed amendment on the November 2008 39 See Perry v. Brown, 671 F.3d 1052 (9th Cir. 2012). 40 In re Marriage Cases, 43 Cal.4th 757 (Sup. Ct. 2008). 41 Stone, supra note 22, at 37. 42 Tracking the Money: Final Numbers, L.A. TIMES, February 3, 2009, http://www.lat imes.com/news/local/la-moneymap,0,2198220.htmlstory (last visited May 18, 2012). Compared to the slightly more than $13 million total spent on all campaigns to ban same-sex marriage in the 13 states that voted to do so in 2004. Sue OConnell The Money Behind The Marriage Amendments, NATL INST. ON MONEY IN STATE POLITICS (Jan. 27, 2006), available at http://www.followthemoney.org/press/ReportView.p html?r=236 (last visited May 18, 2012). 15

ballot.43 This number represents the required eight percent of the total number of voters who cast ballots in the previous gubernatorial election. Put another way, in 2008, there were 15,537,046 registered voters, yet signatures from only 4.4% of those voters would be enough to qualify the measure onto the ballot and open the door to an almost irreversible constitutional amendment.44 The problem with the signature requirement in most states, including California, is three-fold. First, the minimum signature requirement is simply too low. In North Dakota, for example, you can get an issue affecting civil rights on a ballot with signatures from only two percent of the total population of the state.45 Second, the manner in which signatures are gathered is flawed. Most states allow sponsors of ballot initiatives to employ signature gatherers on a pay persignature basis, a system that is rife with fraud46. Finally, states need to continue 43 CALIFORNIA SECRETARY OF STATE NEWS RELEASE (June 2, 2008), http://www. sos.ca.gov/admin/press-releases/2008/DB08-068.pdf. 44Californias Constitutional Amendment, Proposition 8, was struck down by the 9th Circuit ruling in Perry v. Brown as unconstitutional for violating equal protection. However, the ruling is seen as very narrow in that it relied on the fact that the California Supreme Court had already granted same-sex couples the right to marry (18,000 couples married in less than six months) and Prop. 8 was rescinding that right. Therefore, challenges to other state amendments where the right to same-sex marriage was never granted may not be able to rely on Perry. 45 THE BASIC STEPS TO DO AN INITIATIVE IN NORTH DAKOTA STATUTES AND AMENDMENTS DIRECT INITIATIVE PROCESS, State I&R, IRI, http://www.iandrinstitute.org/New%20 IRI%20Website%20Info/I&R%20Research%20and%20History/I&R%20at%20the %20Statewide%20Level/Basic%20steps/North%20Dakota.pdf (last visited May 18, 2012). 46 Ohio State Rep. Jennifer Garrison, Testimony to House & Ethics Comm. (Jan. 12, 2010) (Declaring that in 2009 alone, signatures of 23 deceased residents were found on ballot petitions. Also citing a 2008 incident where petitioners working on behalf of payday loan companies were claiming the goal of the petition was to lower interest rates, when in fact they were trying to raise them). 16

the trend in statutorily banning out-of-state signature gatherers from being employed by groups proposing ballot measures.

1. Minimum Signature Requirements The minimum signature requirement, as it stands in most states, effectively operates as merely a perfunctory requirement that is easily met. Low signature requirements defeat the purpose of the practice, which is to prove to state officials that there is public support behind the proposed measure. Therefore, states should increase their minimum signature requirements. Although some would argue this merely raises the financial barrier by costing ballot sponsors more money and time spent, this added requirement would help ensure that there is evidence of statewide support to place such a measure on the ballot. For the more drastic measure of amending a state constitution, the number of signatures for ballot approval should be no lower than 25% of the total number of citizens who voted in the most recent gubernatorial election.47 These increases, coupled with longer petition circulation periods, will allow the much needed time for lesser-funded groups to essentially catch-up to those organizations having the benefit of a running start, while also providing more time for the public to become aware of and educate themselves as to the issue they are being asked to vote on.48 47 Currently, Arizonas 15% requirement is the highest of any state. 48 See generally, Democracy by Initiative: Shaping Californias Fourth Branch of Government, POLICY ARCHIVE (May 2008). 17

2. Gathering Signatures The second important procedural change within the signature-gathering requirement is the need for states to ban the practice of paying signature gatherers on a per-signature basis. Studies show that allowing such practices opens the door to fraud, as groups backing initiatives are more likely to employ anyone who can get the most signatures, including out-of-state workers who make a career out of being a collector49. Also, signature gatherers, if paid persignature, are more tempted to use whatever tactics necessary to produce the most signatures, including forging signatures and utilizing bait-and-switch methods.50 Although one federal appellate court has ruled curtailing this practice to be a violation on First Amendment grounds51, the majority of federal courts have ruled just the opposite52. For the most part, these decisions deem the bans constitutional because they are narrowly tailored to meet the specific state interest of preventing fraud.53 Therefore, in order to protect the integrity of the direct democracy process, a process that has historically worked to deprive minority groups of fundamental civil rights, it is necessary for states to implement statutes that ban the pay-per-signature practice. 49 BALLOT INITIATIVE STRATEGY CENTER, Ballot Integrity: A Broken System In Need Of Solutions (July, 2009), available at http://bisc.3cdn.net/1fb0aa12d865ddd8c6_w wm6b9zwc.pdf. 50 Initiative & Referendum Institute v. Jaeger, 241 F.3d 614, 618 (8th Cir. 2001) (discussing a 1994 incident where 17,000 signatures were invalidated due in part to pay-per-signature). 51 Tax Reform v. Deters, 518 F.3d 375 (6th Cir. 2008). 52 241 F.3d at 617; Person v. N.Y. State Bd. of Elections, 467 F.3d 141 (2d Cir. 2006); Prete v. Bradbury, 438 F.3d 949 (9th Cir. 2006). 53 Jaeger, 241 F.3d at 73 (narrow because they were still allowed to pay other ways). 18

3. Out-of-State Signature Gatherers In Initiative & Referendum v. Jaeger, the Eighth Circuit Court of Appeals also confronted North Dakotas residency requirement, which permitted only residents of North Dakota to work as signature gatherers.54 Challenged on First Amendment grounds, the court held that because the State has an interest in preventing fraud, and with that comes the necessary power to be able to subpoena, if needed, those who collect signatures, the in-state residency requirement was a narrowly tailored measure to meet that interest.55 Although opponents of such statutory bans cite higher costs and more need to train employees, the need to prevent fraud should trump that burden. Further, the collateral effect of these bans keeps state and local issues within their respective areas, which should be a welcome result. Paying out-of-state signature gatherers to descend upon the state, work to further a special interest in which they have a stake in the outcome, and then leave, runs contrary to the spirit of the process of allowing state and local residents to decide state and local issues.

54 Jaeger, 241 F.3d at 616. 55 Id. 19

B. Supermajority Requirements Sixteen states require a supermajority by the legislature in order to pass legislation that will raise taxes or create new taxes.56 Fifteen of those sixteen states have voted this requirement into their state constitution.57 The states have defined supermajority as being either a three-fifths, two-thirds or three-fourths majority vote. These states have decided that in addition to the representative legislative filtering process already in place, a supermajority vote in both house chambers must be met in order to raise or create taxes. Granted there have been calls for a roll back to some of these amendments due to their consequential effect of handcuffing state budgets, but the message from those behind the efforts to put these supermajority requirements in place is clear: you need more votes to get more of our money. Unfortunately, people seem less inclined to set up supermajority roadblocks within direct democracy, even when civil rights are at stake. Most states that use direct democracy, no matter the issue, be it a statutory measure or constitutional amendment, only require a simple majority for passage. And in many states, should the legislature choose to attempt to amend the constitution by asking the public to vote on it (all states except Delaware require a public vote for a constitutional amendment), they must first get a supermajority in both

56 Kim U. Hoffman & Meagan M. Jordan, The Revenue Impact of State Legislative Supermajority Voting Requirement, 10 MIDSOUTH POL. SCI. REV., 6 (2009).
57

Id. 20

chambers before it gets onto the ballot for simple majority passage by voters.58 Currently, eighteen states allow for constitutional amendment through the ballot initiative process.59 Out of those eighteen states, only six of them have placed some type of supermajority requirement in place.60 And out of the twenty-four states that allow statutory initiatives, only four have placed any type of supermajority requirement in order to pass a measure.61 As summarized in Part II, direct democracy can have very negative, longlasting effects on gays and lesbians. The common theme within the state and local initiatives and referendums that strip minority groups of fundamental rights 58 NATIONAL CONFERENCE OF STATE LEGISLATURES, Supermajority Vote Requirements, http://www.ncsl.org/legislatures-elections/elections/supermajority-vote- requirements.aspx (last visited May 10, 2012). 59 BALLOTPEDIA, Amending State Constitutions, http://ballotpedia.org/wiki/in dex.php/Amending_state_constitutions (last visited May 18, 2012).
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NATIONAL CONFERENCE OF STATE LEGISLATURES, Supermajority Vote Requirements, http://www.ncsl.org/legislatures-elections/elections/supermajority-vote- requirements.aspx (last visited May 10, 2012) (Florida requires 60% supermajority and 2/3 supermajority for any amendments that raise taxes; Illinois requires a 3/5 majority, or a majority of those voting in the election; Massachusetts requires a simple majority, but the total number of votes cast on the initiative must equal at least 30% of the total votes cast in the election; Mississippi requires a simple majority, as long as the total number of initiative votes cast equal at least 40% of the total votes cast in the election; Nebraska calls for a simple majority, so long as the total number of initiative votes cast equal at least 35% of the total votes cast in the election; in Nevada, an initiative constitutional amendment must receive a simple majority vote in two successful elections). 61 Id. (Massachusetts requires a simple majority, but the total number of votes cast on the initiative must equal at least 30% of the total votes cast in the election; Nebraska calls for a simple majority, so long as the total number of initiative votes cast equal at least 35% of the total votes cast in the election; Washington requires a simple majority vote, provided that the vote cast equals at least one-third of the total votes cast at such election; Wyoming calls for a simple majority, provided that an amount in excess of 50% of those voting in the preceding general election casted votes in favor, or against, the initiative). 21

is that many are passed by a simple majority. The 53.4% majority in Colorados famous Amendment 2, which was the subject of Romer v. Evans, the 52.24% majority in Proposition 8, and the 53% majority who passed Maines Question 1 (the voter referendum that repealed what was the first state legislation to allow same-sex marriage) are just a few examples of simply majorities voting to oppress the rights of a minority group.62 If a state chooses to afford its citizenry the right to engage in direct democracy, it must do so within the bounds of the Constitution, specifically the First Amendment right to free political speech. The requirement of supermajorities in direct democracy, do not, however, infringe upon the First Amendment. In upholding such a requirement, the 10th Circuit noted that in order to make it difficult for a relatively small special interest group to enact its views into law, Wyoming had a legitimate and reasonable interest in seeing that an initiative pass by more than a simple majority.63 The court went on to say, If Wyoming wanted to make it harder, rather than easier, to make laws by the initiative process, such is its prerogative.64 The First Amendment carries with it many guarantees surrounding the political process, specifically elections. However, it does not guarantee political success.65 Supermajority requirements in direct democracy undoubtedly help protect the rights of unpopular social groups, and do so within the framework of our 62 Romer v. Evans, 517 U.S. 620 (1996). 63 Brady v. Ohman, 153 F.3d 726 (10th Cir. 1998). 64 Id. (Supreme Court denying cert.). 65 See generally Republic Party of North Carolina v. Martin, 980 F.2d 943, 960 (4th Cir. 1993). 22

Constitution. Therefore, it is imperative that any state allowing its citizens to enact laws and amend their constitutions through direct democracy does so by requiring some measure of a supermajority vote.

C. Judicial Challenges Generally, in the interest of not disrupting the electoral process, it is the practice of state and federal courts to hold off review of constitutional and other challenges to a ballot measue, unless there is some showing of clear invalidity. But what could be more invalid than a measure that infringes on a constitutionally protected right or disadvantages an unpopular political minority? When it can be proven that such a measure will have such drastic effects, why should citizens opposing it have to organize, raise millions of dollars and fight tooth and nail to defeat it at the ballot box? There is a dire need to broaden the opportunities of concerned citizens to challenge such measures before they reach the stage of a public vote. The United State Supreme Court has recognized that, at times, certain unpopular minority groups will be the target of majority faction. Carolene Products Footnote 4 called attention to the fact that laws affecting discreet and insular minorities might call for a more heightened standard of judicial review.66 In Romer, Justice Kennedy pointed to Amendment 2 and noted it was simply animus toward the class that it affects, and had no rational relationship to 66 United States v. Carolene Products, 304 U.S. 144, 152 (1938). 23

legitimate state interests.67 If equal protection means anything, it must, at the very least, mean that a bare desire to harm a politically unpopular group cannot constitute a legitimate government interest. As the Court in Romer spelled out, there is no Constitutional tradition in enacting such laws. Why then, must we wait until they are enacted to challenge them? This essays final call for reform is to open up the opportunity for pre-ballot Constitutional challenges to direct democracy measures infringing on a constitutionally protected right or unfairly targeting an unpopular political minority. This smell-test challenge will allow citizens to proffer evidence and prove so, in a federal court.68 Using the language of Supreme Court decisions that have called attention to the direct target for negative treatment of certain minority groups, courts will be able to determine that either (1) the proposed ballot measure, if passed, will deprive citizens of or infringe upon a constitutionally protected right (e.g. the right to marry), or; (2) the proposed ballot measure, if passed, unfairly targets an unpopular social or political minority or curtail[s] the operation of those political processes ordinarily to be relied upon to protect minorities.69 Under the first part of this test, any ballot measure that can be proven to have such constitutional infringements can be stricken from a ballot. Proof can be found by comparing the ballots language and overall purpose to those from 67 Romer, 517 U.S. 620 at 632. 68 It is presumed that federal judges, who are not elected, but appointed, will be more likely to strike a controversial ballot measure without fear of voter repercussions from an unhappy majority. 69 Carolene Products, 304 U.S. 144 n. 4. 24

ballot measures that have been held unconstitutional by both federal and state courts, and also those that have passed constitutional muster. If a measure does indeed fail this first hurdle by working to strip a certain group of a constitutionally protected right, such as Proposition 8 was held to do in Perry, there should be no need to offer the measure up for public vote. Instead, the measure is simply prevented from being placed on the ballot. The second part of the pre-ballot challenge is more flexible, allowing challengers adequate opportunity to prove potentially harmful effects the measure is likely to have upon certain groups of people. Again, by comparing the language of the measure, its intended effects and overall purpose with previous measures, courts can fairly judge the outcome such measures will have. If the measure is found to be at odds with state and federal statutes and case law precedent intended to protect minority groups, and instead targets a group for unfair treatment, the court will have the ability to strike the measure from ballot consideration. Also, under the language in the second part of the test, a court is afforded an opportunity to throw out ballot measures that, if passed, will curtail the operation of those political processes that minority groups have historically relied upon for protection. This is an important feature, as once a state constitution is amended by popular vote, the only way to overrule that amendment is through another popular vote. As a result, the traditional legislative process and opportunity for courts to review are essentially eliminated - two means which have provided the most protection for unpopular minority groups.

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In defending these challenges, groups supporting the measures will undoubtedly be given the opportunity to offer evidence to the contrary. However, should they fail, and exhaust all avenues for appeal, their specific proposal should be barred from being placed on a ballot. Further, any future measure similar in content and effect should be viewed under the precedent set by the denial of the initial failed measure. In doing so, and also by following the aforementioned challenge guidelines in full, courts can better police ballot measures prior to subjecting the public to statewide votes that can have drastic effects stemming not only from their passage, but also their heated campaigns. Further, the pre-ballot challenges can, in practice, have the desired effect of steering those seeking to pass unjust laws, along with their organizational and financial efforts, back toward the representational form of lawmaking envisioned by the nations founders. CONCLUSION One must be cautious when suggesting limits on the democratic process. However, democracy must be something more than two wolves and a lamb voting on what to have for dinner.70 There is little question that direct democracy has its place. When civil rights are at stake, however, we must look to processes that afford more protection to those in the minority party. Representational democracy is one of those processes. Properly implemented, the suggestions and arguments made in Part III of this essay can be another. 70 James Bovard, Lost Rights: The Destruction of American Liberty, 333 (Palgrave, 2000). 26