Direct Democracy Under Attack 

State supreme courts in Utah and Michigan recently issued twin landmark decisions limiting the legislature’s power to quash citizen initiatives. These decisions spell major victories for direct democracy — that is, citizens’ power to change their laws by popular vote. In the immediate future, the Utah decision paves the way for the lower court to reinstate citizen-initiated redistricting reform; under the Michigan decision, citizen-drafted worker protections will soon take effect.

But both decisions also hang in the balance this coming election. In Utah, the legislature has referred a Hail Mary ballot measure asking voters to overrule the court; voting rights groups, in turn, have sued to block the legislature’s measure from being tallied.

In Michigan, one member of the narrow majority is up for a retention election, meaning the court could reverse course in a future ruling should that justice lose her position.

Direct Democracy’s History

The decisions — League of Women Voters of Utah v. Utah State Legislature and Mothering Justice v. Attorney General — add to a centuries-long debate about how power should be distributed between citizens and their elected representatives. In colonial America, some communities governed themselves through direct democracy. But America’s 18th century founders feared that this system of government, on a national level, would lead to ill-advised laws that harmed political minorities. So they structured the federal government as an indirect (or “representative”) democracy in which citizens elect representatives who either make laws or elect others to do so.

States by and large followed suit in their state constitutions, concentrating power in legislative bodies. But by late in the 19th century, a consensus had spread — spurred by the Progressive movement — that legislatures were far from a perfect agent for enlightened policymaking. To the contrary, their members were often corrupt, beholden to special interests, uncommitted to their own campaign promises, and unresponsive to public opinion. Citizens needed a more direct way to ensure that state laws reflected the popular will. To Progressives, “only free, unorganized individuals could be trusted” and “any intermediary body such as politicians, political parties and legislative bodies were inherently corrupt.”

In Utah (in 1900) and Michigan (in 1913), as in roughly half of the states, Progressive reformers succeeded in amending their constitutions to add mechanisms for direct democracy. Thanks to these reformers, both Utah and Michigan voters can pass or repeal legislation; in Michigan, they can also amend the constitution.

In the decades since it was instituted, direct democracy has enabled voters to enact popular policies across the political spectrum. In recent years, progressive voters have used it to great effect in states where Republican-led legislatures have entrenched their own power through gerrymandering. For example, voters have intervened to expand Medicaid coverage, raise the minimum wage, impose term limits, and legalize medical marijuana. Utah has a particularly gerrymandered legislature, and Michigan did too until voters organized to amend their constitution, taking redistricting power out of the legislature’s hands and creating a bi-partisan, independent redistricting commission.

Utah High Court Protects a Citizen Initiative from Repeal by the Legislature

Utah voters passed an initiative establishing a semi-independent redistricting commission in 2018, the same year that Michigan voters established their commission. But because Utah only allows citizens to enact legislation by initiative — not amend their constitution — the Utah legislature responded with its own law essentially repealing the voter initiative. Then, the legislature passed another partisan gerrymander, drawing maps that heavily favored Republicans. The League of Women Voters sued, arguing that the legislature’s actions violated the public’s right to “alter and amend” their government by citizen initiative.

Because the Utah Constitution empowers both citizens and legislators to enact statutes — with no express hierarchy between these two sources — this case required the state supreme court to think broadly about the political theory animating the constitution and how the framers sought to balance popular sovereignty and legislative power. What the court found was that, by conferring on citizens a right to “alter and reform” their government and by later empowering them to enact legislation, the constitution gave citizens direct policymaking authority over their legislators on matters of governmental reform.

The court started with the state constitution’s declaration that “all political power is inherent in the people” and “they have the right to alter or reform their government as the public welfare may require.” This section, the court concluded, places the people above their representatives, with the latter as mere “servants” or “agents.”

To be sure, this language is not incompatible with a representational democracy structure in which all legislative power is channeled through lawmakers, with the only popular check being periodic elections. To the contrary, the principle that political power rests with the people is also core to American representative democracy, whose founders also waxed eloquent about the legitimacy of government stemming from the “consent of the governed.”

But the provision vesting power in the people is not the only one in which Utahns retain control over their elected government. Just a few years after becoming a state, Utah amended its constitution to empower citizens, by popular vote, both to initiate and to repeal legislation. From contemporaneous sources, both sides of the debate over this amendment understood “that when the people spoke through an initiative, they would have the final say on the matter at issue.” In fact, that was the whole point of adding a provision giving voters the ability to change legislation; after all, when citizens and legislators agree on policy, there’s no need for an initiative or referendum.

Although the court set out a constitutional history that casts doubt on any act by the legislature to thwart a citizen-enacted statute, the court’s ultimate holding was narrow, tailored to the case at hand: The right to vote on legislation, “operating together” with citizens’ independent the right to “reform or alter” the government, protects citizen-initiated governmental reform statutes from unnecessary repeal or “impair[ment]” by the legislature. And legislative interference is unnecessary, and therefore unconstitutional, unless narrowly tailored to a compelling state interest. Any lesser protection would make it too easy for the legislature to repeal citizen statutes, making “illusory” their right to reform their government.

The court remanded the case to the lower court to determine whether the creation of the independent redistricting commission was intended to “alter or reform” the government and, if so, whether the legislature had unlawfully “impaired” the measure. 

In sending the case to the lower court with this guidance, the high court rejected the defendants’ argument that claims alleging impairment of citizens’ right to alter and reform their government were “nonjusticiable political questions” — and by extension that gerrymandering claims are also nonjusticiable. The “alter and reform” provision speaks in clear “rights” language, the court explained, evincing an intent that courts intervene when necessary. More generally, the court went on, the framers situated this right within the constitution’s core Declaration of Rights, which were intended to “limit[] the power of government.” That limit that would be meaningless without judicial enforcement, the court said.

The legislature did not take this unanimous decision well. To the contrary, legislators swiftly called an emergency session and passed a ballot measure which, if approved by voters this year, would give the legislature express power to repeal citizen initiatives. They buried that provision under a misleading description and language ostensibly aimed at the unrelated goal of curtailing “foreign influences” over initiatives, increasing the risk that some citizens will vote for the measure without realizing that they are weakening future voter initiatives. The League of Women Voters swiftly sued, arguing that the legislature was misleading voters. A district court agreed. The legislature has appealed, in language that with rich irony accuses the plaintiffs of trying to “squelch” voters’ “precious right” to decide issues “at the ballot box.”

Michigan High Court Blocks Legislative Efforts to Amend an Initiative

Because Michigan adopted independent redistricting by constitutional amendment in 2018, its legislature now better reflects public opinion. Mothering Justice v. Attorney General is a holdover from before this reform was enacted, when gerrymandering had produced a legislature well to the ideological right of, and at odds with, the electorate.

Under the Michigan Constitution, when citizens propose an initiative and obtain enough signatures to qualify it for the ballot, the legislature can respond in one of three ways: It can enact the initiative as is; it can reject it, thereby putting it up for popular vote; or it can reject it and put forward its own measure, allowing the two to compete on the ballot.

In 2018, citizens put forth two popular initiatives to raise the minimum wage and institute other worker protections. In a tactic known as “adopt and amend,” the legislature adopted these initiatives verbatim — thereby preventing a popular vote — and then in the same session passed additional legislation scaling them way back. Proponents of the initiatives sued, claiming that the legislature had violated their direct democracy rights. A closely divided supreme court agreed.

The court started from a similar place as the Utah court did: Michigan’s constitution, like Utah’s, expressly provides that all political power is “inherent in” the people. Drawing on recent scholarship by professors Jessica Bulman-Pozen and Miriam Seifter, the court read this provision as expressing a “democracy principle,” on which any ambiguity in the constitution must be “liberally construed” in favor of the people’s right to direct democracy. Then, given that the constitution did not expressly authorize the legislature to amend citizen initiatives in the same session that it adopted them, the court held that such amendment was incompatible with the initiative right and therefore unconstitutional.

In both Michigan and Utah, the defendants argued that the legislature had not violated direct democracy rights because voters could always respond in kind with a referendum. As did the Utah court, the Michigan court brushed this argument aside as plainly stacking the deck in the legislature’s favor, noting “it is difficult to fathom that the framers intended for voters to expend countless resources and time to gather thousands of signatures to place an initiative on the ballot only to have to do so all over again via a referendum after the Legislature adopts and then amends the initiative.”

The Michigan decision differs from the Utah decision in a few respects: Far from being unanimous, it was a 4–3 decision. It was broader, protecting all citizen initiatives, not just those aimed at reform the government. And the court reached the ultimate question in the case, finding that the legislature had violated the constitution and remedying that violation by reviving, as binding law, the initiatives as originally adopted. As a result, in just a few months, the state’s minimum wage will increase by $2 and most employees will be entitled to paid sick leave. 

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In several states across the country, legislatures and state officials are undermining direct democracy through a variety of tactics — from trying to raise the threshold for citizen initiates to pass, to making it harder for them to qualify for the ballot, to drafting biased ballot descriptions intended to dissuade voters from supporting them. The Utah and Michigan supreme courts have pushed back hard on one form of that strategy, reaffirming that direct democracy was instituted precisely to empower citizens over their elected representatives.

The Brennan Center for Justice filed an amicus brief in support of the plaintiffs in League of Women Voters of Utah v. Utah State Legislature.

Alice Clapman is a senior counsel at the Brennan Center for Justice.

Suggested Citation: Alice Clapman, Direct Democracy Under Attack, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sept. 16, 2024), https://statecourtreport.org/our-work/analysis-opinion/direct-democracy-under-attack.