Multiple High Courts Uphold Voters’ Right to Use Ballot Measures to Change Law

Conflicts over citizen-initiated ballot measures often reflect a tug-of-war between state legislatures and the people seeking to propose a law or constitutional amendment directly. When these disputes reach the courts, they often require assessing the scope of the people’s reserved direct democracy powers and the boundaries of state legislature’s authority — matters state constitutions do not always clearly resolve.

Recent decisions from the state supreme courts in California, Utah, and Michigan on labor and redistricting issues all upheld the primacy of the people’s direct democracy powers, reaffirming the role of the initiative and referendum to pursue policies that the state legislatures will not.

The disputes in Utah and Michigan both concerned legislative attempts to alter or repeal citizen-initiated statutes. In League of Women Voters of Utah v. Utah State Legislature, the Utah Supreme Court addressed the constitutionality of the Utah legislature’s repeal of a voter-approved initiated statute prohibiting partisan gerrymandering. And in Mothering Justice v. Attorney General, the Michigan Supreme Court considered whether the Michigan legislature violated the Michigan Constitution when it adopted two citizen-proposed statutes — one to raise the minimum wage and the other to provide paid sick leave to employees — and then heavily amended them after the time had passed to submit them to a statewide vote.

Although some state constitutions with direct democracy provisions explicitly address similar scenarios, neither Utah’s nor Michigan’s directly contemplate the legislative tactics at issue. Citing this constitutional silence, the legislatures in both states argued that their actions were permissible under their presumptive authority to legislate. However, the state supreme courts disagreed.

At the outset, the decisions are notable because they were both framed through the lens of “the democracy principle,” the state constitutional commitment to popular sovereignty, majority rule, and political equality. In other words, the courts emphasized that state legislatures must facilitate, not subvert, popular self-rule.

The Utah Supreme Court unanimously ruled that the state constitution’s declaration that “all political power is inherent in the people” and that the people “have the right to alter or reform their government as the public welfare may require,” together with the provision authorizing statutory initiatives, establishes a fundamental right for Utahns to enact government reforms through the initiative process. The court further held that any legislative attempt to amend such reform initiatives is subject to strict scrutiny. To hold otherwise, the court reasoned, would render these constitutional rights “illusory.” The Utah Supreme Court then remanded the case to the trial court to determine whether the legislature’s repeal of the ballot measure can withstand strict scrutiny — a decision that may ultimately lead to the invalidation of the state’s congressional districts.

The Utah legislature has since moved to effectively overturn the state supreme court’s decision, submitting a proposed constitutional amendment they intended to go to voters in the 2024 general election that would give the legislature the authority to amend or repeal initiated statutes. The status of this proposal is in flux, though. Last week, a Utah judge voided the measure after finding that its ballot language is misleading and that the legislature failed to properly notify the public about the proposal. Legislative leaders have appealed this decision to the state supreme court, and oral argument is set for September 25. Ballots containing the proposal have already been printed, but if the lower court’s decision stands, any votes for or against the measure will not count.

In a more closely divided 4–3 decision, the Michigan Supreme Court ruled that the legislature’s “adopt-and-amend” tactic violated the state constitution’s citizen initiative provision. The court pointed to the “three discrete options” provided by the constitution when the legislature is presented with a valid initiative petition: reject the proposal and send it to the voters, propose a competing alternative to the voters or enact it without changes, in which case it is not submitted to the voters. The court then reasoned that “it is implausible” that the constitution’s ratifiers intended to allow “a contradictory fourth option” like adopt-and-amend. The court also held that the constitutional language stating that “the people reserve to themselves the power to propose laws and to enact and reject laws, called the initiative” restricts the legislature’s plenary authority in the context of the initiative process. As a result, the court nullified the legislature’s amendments, allowing the original measures to eventually take effect as if they had never been altered.

The California case, Castellanos v. California, differed in its posture from the disputes in Utah and Michigan but similarly addressed a conflict between the state legislature’s authority and a voter-approved initiative.

Castellanos centered around an initiated statute approved by the state’s voters in 2020 as Proposition 22 that allowed app-based transportation and delivery companies like Uber and DoorDash to classify their drivers as independent contractors rather than as employees. (The ballot measure campaign was the most expensive in California history at the time and was marked by complaints over the ballot language and campaign tactics.) This classification excluded app-based drivers from the state’s workers’ compensation laws, which generally cover employees but not independent contractors.

Labor unions and other plaintiffs challenged the initiative, arguing that the state’s initiative power cannot be used to provide for workers’ compensation laws due to a provision in the state constitution purporting to give the legislature exclusive authority over the issue. This provision grants the legislature “plenary power, unlimited by any provision of this Constitution, to create, and enforce a complete system of workers’ compensation, by appropriate legislation.”

The California Supreme Court unanimously rejected the plaintiffs’ argument, emphasizing the significance of the state constitution’s direct democracy powers, which it described as “one of the most precious rights of our democratic process.” The court further asserted that “if doubts can reasonably be resolved in favor of the use of this reserve[d] power, courts will preserve it.” Analyzing prior case law interpreting a similarly worded provision and examining the history of the workers’ compensation clause, the court concluded that precluding the people from amending the legislature’s workers’ compensation laws would “unduly restrict the initiative power.” As a result, the court upheld the ballot measure but left open other questions that may be the subject of future litigation, including the constitutionality of a provision requiring a seven-eighths supermajority in each house of the legislature to amend the measure.

The decisions from the Utah, Michigan, and California supreme courts carry significant implications. In addition to reinstating or upholding consequential policies, the rulings reveal a commitment by courts to protect direct democracy rights and potentially other voting-related rights from government interference. These decisions could also serve as influential precedents for courts in other states confronting similar power struggles, offering a persuasive framework to safeguard democratic rights.

Derek Clinger is a senior staff attorney for the State Democracy Research Initiative at the University of Wisconsin Law School, which filed amici curiae briefs on behalf of legal scholars in the Utah and Michigan cases.

Suggested Citation: Derek Clinger, Multiple High Courts Uphold Voters’ Right to Use Ballot Measures to Change Law, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sept. 17, 2024), https://statecourtreport.org/our-work/analysis-opinion/multiple-high-courts-uphold-voters-right-use-ballot-measures-change-law.