How Courts Oversee Ballot Initiatives
The United States is primarily a representative democracy in which voters play an indirect role in making laws by electing legislators. Twenty-five states have added some degree of direct democracy to their constitutions, allowing citizens to enact statutes or constitutional amendments by popular vote via a ballot initiative or to reject recently enacted legislation via a referendum. Other states have a less direct process for involving voters in lawmaking: they allow the legislature to refer statutes or constitutional changes for a popular vote.
Most states with direct democracy added this feature during the Progressive Era around the turn of the 20th century in response to concerns that legislatures were being corrupted by wealthy insiders and were not responding to the popular will. Progressive reformers sought to reclaim for citizens a certain amount of the lawmaking power they had ceded to their representatives, albeit with various procedural constraints designed to ensure sufficient deliberation.
Since its inception, American direct democracy has faced legal challenges. An early lawsuit claimed it was incompatible with the “republican form of government” guaranteed to states in the U.S. Constitution. The U.S. Supreme Court held that “the framework and political character” of a state’s government is a political question outside the Court’s power to decide, thereby leaving it to states to decide whether to innovate in this way.
These days, federal courts play a relatively limited, but still important, role in adjudicating disputes related to direct democracy. Because initiatives are an exercise in politics, federal courts apply First Amendment protections to the initiative process to ensure that state restrictions do not impinge on free speech. And after initiatives pass, federal courts review them to determine whether they violate federal constitutional rights or conflict with any federal laws.
State courts are more closely involved in the initiative process. They adjudicate disputes over technical requirements governing how many signatures are required to qualify for placement on the ballot, how signatures can be gathered, how an initiative is worded, how broad it can be, and how it is described to voters. In adjudicating these disputes, courts are sometimes called on to decide whether statutory requirements unreasonably interfere with petition and referendum rights, and sometimes merely to determine whether initiative sponsors are meeting the requirements. State courts also ensure that initiatives do not violate state constitutional constraints. Finally, they enforce initiatives after they pass, just as they enforce other constitutional and statutory laws.
Courts shield the ballot initiative process from political interference.
Initiatives are a mechanism for citizens to override legislators and officials — and the party leaders who influence them. As such, initiatives often involve policy issues where lawmakers are misaligned with citizens, and they often provoke a backlash. Time and again, legislators and officials have responded to successful initiatives by attempting to ratchet up procedural requirements for future initiatives. When they do, voters bring suit, calling on courts to draw a line between the proper role that state politicians play in ensuring orderly electoral processes and the people’s constitutionally protected right to direct democracy.
For example, the Michigan Supreme Court is poised to hear a dispute over whether the legislature has the power to “adopt and amend” a proposed initiative, thereby altering its contents, or whether the people have a right to vote on the initiative as initially proposed. This dispute arose after the legislature “adopted and amended” (and watered down) a minimum wage initiative and an accumulated paid leave initiative.
Sometimes, ballot sponsors sue because state officials are holding up the ballot initiative process. The Missouri Supreme Court recently ordered the attorney general to certify a reproductive rights initiative he had blocked. Similarly, the Arkansas Supreme Court recently intervened to require certification of a marijuana legalization initiative, invalidating a statute that had empowered the board of election commissioners to hold up initiatives.
Other specific instances of this interplay are discussed below.
Courts oversee signature collection requirements.
Direct democracy states require sponsors to obtain a certain number of signatures before an initiative can be placed on the ballot. This threshold is intended to ensure that only initiatives with broad popular appeal come before the electorate. Recently, some legislatures have imposed new, stricter requirements around signature gathering. Such requirements touch on how many signatures sponsors must collect, when and how they must do so, and from what parts of the state they must obtain these signatures. Courts often adjudicate disputes over whether these statutory requirements are reasonable or whether they unduly constrain the constitutional right to direct democracy.
For example, the Idaho Supreme Court blocked legislation that would have increased the signature threshold from 6 percent of qualified electors in 18 legislative districts to 6 percent in 35 legislative districts. The court held that because the Idaho Constitution enshrines the people’s right to enact laws “independent of the legislature,” the legislature may not restrict that right absent a compelling state interest — and even then must tailor any restriction narrowly to that interest. The court also held that, by handing a kind of veto power to lower-population districts, the statute would institute a “‘tyranny of the minority’ . . . [that would] seriously undermine the people’s initiative and referendum powers enshrined” in the state constitution.
Similarly, the Michigan Supreme Court invalidated a statutory geographic distribution requirement for petition signatures, holding that a 15 percent cap of signatures per congressional district “imposes an additional substantive requirement that does not advance any of the express constitutional requirements.” Litigation is pending against a new Arkansas law that requires signatures to be gathered from at least 50 counties (up from the original requirement of 15 counties) and prohibits sponsors from curing signature defects if the deadline for filing petitions has passed.
Courts have invalidated various other canvassing restrictions as inconsistent with direct democracy rights. For example, in Missouri, a closely divided supreme court rejected a legislative effort to prohibit signature gathering before a secretary of state certifies a referendum, holding that this requirement did not guarantee sufficient time to gather signatures and therefore unreasonably impinged on the constitutional right to hold popular referenda. Similarly, the Arkansas Supreme Court invalidated a requirement that sponsors of ballot initiatives obtain background checks on canvassers.
Courts also review canvassing restrictions to ensure they do not implicate other rights. Federal courts have recognized that petition circulation is “core political speech because it involves ‘interactive communication concerning political change.’” Accordingly, courts have invalidated various restrictions on signature collection, such as prohibitions on paid canvassers, requirements that petition circulators be registered voters and wear badges displaying their names, requirements that their names and addresses be made publicly available, and restrictions on where and when they can canvas. Courts have divided on whether states can or cannot, consistent with the First Amendment, prohibit sponsors from paying canvassers per signature gathered
In addition to reviewing restrictions on signature gathering, courts also resolve disputes over the validity of individual signatures and whether state officials are properly reviewing them. For a term limits initiative in North Dakota, the secretary of state invalidated nearly 30,000 signatures because he perceived a pattern of fraud based on a small number of signature inconsistencies. The sponsors sued, and the North Dakota Supreme Court ordered the secretary to place the initiative on the ballot, holding that state law did not authorize these rejections. The Arizona Supreme Court similarly rejected an attempt to throw out signatures for a proposed campaign finance transparency initiative based on technical legal defects.
Courts have also applied First Amendment principles to invalidate state actions that disqualify signatures for immaterial reasons. Courts sometimes uphold official decisions to exclude signatures. In Oregon, for example, the state supreme court agreed with the secretary of state’s decision to exclude signatures from inactive voters based on the state constitution’s specification that signatures be from “qualified” voters.
Courts review ballot descriptions.
When measures are placed on a ballot, they are accompanied by a brief description intended to inform voters as to how the measure, if adopted, would change state law. In some states, the secretary of state drafts this description, sometimes together with a special ballot board or the attorney general; in others, the sponsor drafts it. Courts adjudicate disputes over whether explanatory language is “clear and honest,” often with some deference toward any state officials involved in the process but with an eye to ensuring that voters have the information they need to make a “reasoned, rational decision.” In deciding these cases, courts can become participants in the drafting process, revising the challenged description and issuing the final version.
In states where officials draft the ballot description, sponsors sometimes challenge these descriptions as misleadingly negative. Courts have been confronted with this issue recently because reproductive rights advocates have been proposing constitutional protections by ballot initiatives in several states, and state officials opposed to these initiatives have been in charge of drafting these ballot descriptions. In Ohio, sponsors challenged the description drafted by the state ballot board on the grounds that it was argumentative, misleading, and confusing. The court mostly rejected these claims, requiring only one minor tweak to the description. By contrast, when the Missouri Secretary of State tried to describe proposed reproductive rights initiatives as allowing “dangerous” abortions by unlicensed individuals up to “live birth,” a court invalidated these descriptions as “argumentative” and as “not fairly describ[ing] the purpose or probably effect of the initiative[s].” The court then wrote and certified its own descriptions. The decision was largely upheld by an intermediate appellate court and is likely to go up to the state supreme court.
Voters sometimes challenge descriptions drafted by state officials as misleadingly positive, particularly if they fail to explain how an initiative will alter the status quo. For this reason, the Oregon Supreme Court recently held up an initiative that would give parents a constitutional right to enroll their child in any K–12 public school statewide that had capacity. The court ordered the attorney general to revise the initiative’s caption and description to clarify that it would eliminate the discretion school administrators currently exercise in admitting nonresident students.
Some other courts afford state officials more leeway. In Ohio, for example, not only did the court recently reject a challenge to the ballot board’s unfavorable description of a reproductive rights initiative, but just before that, the court allowed the board to favorably describe a legislatively referred initiative. That referred initiative would have made it harder for voters to amend the constitution, including by requiring a supermajority, and the court allowed the board to describe this change as “elevating” the standard without explaining what that meant. Even that favorable description could not save the initiative from defeat.
Courts hear similar challenges to descriptions drafted by sponsors. In Nevada, for example, a citizen challenged a ballot initiative that would have required voters to present certain identification at the polls, arguing that the initiative description was misleading because it claimed that the initiative would improve “voter integrity” and speed up the processing of mail-in ballots. The court agreed, rewriting the description to be briefer and more neutral in tone.
Sometimes, instead of rewriting a description, courts simply strike it from the ballot. For example, in Florida, where the legislature requires that the Florida Supreme Court review every initiative beforehand, the court struck down a proposed 2022 ballot initiative that would have allowed for the purchase and personal use of marijuana. The court ruled that the ballot summary was “affirmatively misleading” because it implied that voters could legalize marijuana completely, when they could only remove state, but not federal, prohibitions.
Sometimes, state officials deem a description inaccurate and refuse to place it on the ballot, and sponsors ask the court to intervene. For example, in 2022, the Michigan Board of Canvassers’ Republican members tried to block a voting rights initiative from the ballot, claiming that the initiative failed to adequately warn voters of the degree to which it would alter the Michigan Constitution. The Michigan Supreme Court rejected this position and ordered the board to place the initiative on the ballot. It held that that the board was overstepping its narrow discretion and rejected its substantive objections. The initiative passed resoundingly. The court similarly intervened when the board tried to block a reproductive rights initiative on the ground that the spacing between words made it too difficult to read.
In addition to reviewing ballot descriptions, courts also review descriptions used to solicit signatures supporting an initiative. For example, opponents of an Alaska initiative to require parental involvement for minors seeking an abortion sued to block the initiative from the ballot, arguing that the signatures were invalid because sponsors had not disclosed to signatories that minors currently can access abortion without informing a parent and that the proposed restriction would be enforced through criminal penalties imposed on physicians. The Alaska Supreme Court agreed that these omissions were misleading but held that they were not so misleading as to necessitate striking the initiative from the ballot. Instead, the court ordered that the description be corrected to convey this information to voters.
Courts enforce single-subject rules.
State constitutions that allow direct democracy generally have a “single-subject rule” requiring that each initiative only include provisions that are reasonably related to each other and can be grouped together under a single subject. At least one state initiated this requirement by statute. Single-subject rules serve two related purposes: preventing sponsors from aggregating support for multiple proposals, some or all of which would never have sufficient popular support to pass on their own (sometimes called “logrolling”), and avoiding voter confusion.
Different state courts enforce these rules with different levels of strictness. In some states, courts allow any provisions to be grouped together that are “germane” to a common purpose. In others, courts require some stronger connection, such that the provisions “function together in an interrelated way,” “depend upon one another,” or “form an interlocking package necessary to accomplish one overarching objective.” An example of a measure that might satisfy the weaker but not the stronger test is the victims’ bill of rights invalidated by the Pennsylvania Supreme Court in 2021. Although this measure included a package of rights all relating to crime victims, the specific rights included — such as a right to restitution and a right to participate in parole proceedings — were not interdependent. Similarly, the South Dakota Supreme Court invalidated an initiative to legalize medical marijuana that had passed by over 54 percent, because it combined three independent goals: legalizing and regulating marijuana, ensuring access to medically necessary marijuana, and regulating hemp.
Sometimes courts, applying a single-subject rule, strike an initiative from the ballot before the election. The Colorado Supreme Court blocked an animal welfare initiative from appearing on the ballot because it combined the objective of extending animal welfare standards to livestock with the objective of broadening protections against sexual acts with animals of any kind. The court ruled that “animal cruelty” was too broad a unifying subject to satisfy the state single-subject rule. This is a fairly typical dispute in single-subject rule cases: initiative sponsors propose a unifying concept, and courts decide whether this concept is specific enough to satisfy the rule’s goals of preventing logrolling and avoiding voter confusion.
In another pre-election case, the Massachusetts Supreme Court applied a single-subject rule to block an initiative sponsored by rideshare companies to classify drivers as independent contractors. Critically, the sponsors had tried to include a provision narrowing rideshare companies’ legal liability toward third parties harmed by drivers. In an opinion reflecting the overlap between single-subject rules and other rules protecting voters against misleading ballot language, the court focused on the vague, misleading language in the description, as well as the fact that the initiative combined multiple independent provisions.
Some courts prefer to review single-subject rule challenges after rather than before an election, generally on the theory that before an initiative is passed, its constitutionality is not a live controversy, and sometimes also to avoid a rushed judgment. For example, although the Pennsylvania victims’ rights measure mentioned above was challenged prior to its placement on the ballot, the Pennsylvania Supreme Court allowed the measure to appear on the ballot but ordered the secretary to hold off on certifying the results. Ultimately, the court permanently blocked certification.
In cases where courts have found a single-subject rule violation, they have provided differently scaled remedies. Specifically, courts have differed on whether valid pieces of an initiative can be severed from the invalid pieces and preserved or whether an initiative must be struck down in full if any part of it is invalidated.
In addition to reviewing initiatives under a single-subject rule, courts sometimes intervene when state officials invoke such a rule to block an initiative. For example, the Alaska Supreme Court recently ordered the lieutenant governor to certify an election reform initiative for the ballot, rejecting his position that the initiative violated the state single-subject rule. The initiative — encompassing campaign finance reform, open primaries, and ranked-choice voting — might well have been held to violate the stricter single-subject rules applied in some other states, but the Alaska Supreme Court applied a more lenient test merely requiring a logical connection between these three provisions.
Courts ensure consistency with other constitutional and statutory law.
As the country’s foundational document, the U.S. Constitution trumps state law when the two conflict. That includes the individual rights the Constitution enumerates — states cannot violate these by any means, including through direct democracy. Sometimes ballot initiatives impinge on federal constitutional rights and are challenged in state or federal court on that basis. Additionally, state constitutions, including the individual rights they enumerate, constrain what statutes citizens can enact through ballot initiatives.
In 1992, Coloradans amended their constitution to prohibit local governments from enacting antidiscrimination protections for LGBTQ+ residents. The U.S. Supreme Court struck this amendment down, holding that the Equal Protection Clause prohibited states from singling out groups for disparate treatment based on sheer animus.
In several states, voters have approved initiatives to regulate gun purchases and ownership. These have been challenged under the Second Amendment. When passed as statutory initiatives, they have also been challenged under state constitutional analogues of the Second Amendment. In Oregon, an initiative requiring registration and banning large-capacity magazines is currently enjoined by a state judge under the Oregon Constitution, whereas a federal judge had ruled it constitutional under the U.S. Constitution. A similar initiative in California was upheld in a lower federal court in a decision that was recently vacated and remanded by the U.S. Supreme Court.
Campaign finance has been another locus of contest, as voters try to reduce the influence private campaign donations have on elections. These initiatives have been challenged based on the theory that donations are a protected form of speech or association. These challenges have met mixed results, with disclosure requirements faring better than prohibitions. While the U.S. Supreme Court invalidated a state initiative to create a voluntary public funding system, an Arizona court recently upheld a statutory initiative requiring donor disclosure of “the original source of all major contributions used to pay . . . for campaign media spending.” A case is pending in Alaska challenging disclosure rules, including disclaimer requirements for ads and required reporting around contributions from certain third-party groups. Free speech and association claims have also been raised in challenges to reform initiatives, such as those that would require open primaries and ranked-choice voting. The Alaska Supreme Court recently rejected one such challenge.
Sometimes, initiative opponents claim that a particular initiative upsets the balance of authority between the federal government and the states. Because Congress has the authority to regulate interstate commerce, courts limit the role states can play in doing so. This limitation on states is called the “dormant” Commerce Clause because it is not directly stated in the Constitution but rather implied by the Constitution’s grant of authority to Congress. In Jones v. Gale, for example, the Eighth Circuit invalidated a Nebraska ballot initiative barring most corporations and other non-family-owned partnerships from buying interest in land in Nebraska used for farming or ranching, finding that the initiative discriminated against out-of-state conduct in violation of the interstate commerce clause. At the same time, courts have upheld ballot measures that burden out-of-state conduct in a nondiscriminatory way. For example, a fractured U.S. Supreme Court rejected a challenge brought by meat producers against a California animal welfare initiative that set standards for meat sold in the state (most of which was produced out of state).
Along similar lines, entities regulated by a ballot initiative sometimes claim the initiative is “preempted” by federal law — either by an express provision of federal law or by a comprehensive statutory scheme that leaves no room for parallel state regulation. (The latter type of claim is called “field preemption.”) Federal courts recently rejected a field preemption challenge to a California initiative banning the sale of flavored tobacco, holding that the U.S. Food and Drug Administration has very limited authority, leaving states free to regulate much of the market. In other cases, courts have blocked initiatives that would cover areas governed by the U.S. Constitution, such as initiatives that would impose term limits on federal offices or require certain ballot notations intended to pressure candidates to support federal term limit reform.
Courts also enforce state constitutional constraints on initiatives, such as prohibitions on unfunded mandates, restrictions on the resubmission of initiatives that have failed in the past, and limitations on more significant changes to the constitution being done through the process.
Mississippi’s supreme court not only has enforced state constitutional constraints on the ballot initiative process but has done so in such a way as to nullify that process altogether. In 2021, the court held that the state constitutional provisions for initiatives are inoperable because of outdated constitutional language requiring signature gathering from five congressional districts (when as a factual matter the state is now divided into only four congressional districts). In doing so, the court also invalidated a medical marijuana initiative that had just passed with 74 percent of the vote. This is the second time in just over a century that the Missouri Supreme Court has nullified the state’s mechanism for direct democracy.
The Mississippi Supreme Court’s approach stands out from that of other state courts, which take their constitution’s commitment to direct democracy as the starting point and then reason from there as the best way to effectuate that commitment alongside other commitments.
• • •
State courts — and to some degree federal courts — are closely involved in the direct democracy process at every stage, adjudicating disputes over signature collection, drafting, participation by other political actors, and more. In a sense, and when functioning optimally, they are part of a checks and balances system, ensuring that constitutional rights to direct democracy are respected but that the process is a deliberative one and that citizens, acting as lawmakers, do not exceed their retained authority.
Alice Clapman is a senior counsel at the Brennan Center for Justice.
Alon Goldfinger is a student at Columbia Law School and an intern at the Brennan Center for Justice.
Connie Wu is a program associate at the Brennan Center for Justice.