What Does Popular Sovereignty Really Mean?
Two new essays unpack recent state supreme court cases about the relationship between direct democracy and the power of state legislatures.
This year, more than 50 citizen initiatives will appear on the ballot in states across the country. As we hurtle toward Election Day, State Court Report has two new essays unpacking recent state supreme court cases that consider the relationship between direct democracy and the power of state legislatures.
Twenty-five states have some form of direct democracy baked into their state constitutions, such as ballot initiative processes that allow citizens to pass statutes or constitutional amendments by popular vote and referenda processes that create a pathway for citizens to reject recently passed legislation.
These kinds of citizen-led processes can prompt a tug-of-war with state legislatures over who gets to set policy. In a new essay, Derek Clinger, a senior staff attorney for the State Democracy Research Initiative at the University of Wisconsin Law School, recaps recent blockbuster rulings in Utah, Michigan, and California that consider this boundary between popular sovereignty and the power of state legislatures.
Each of the three cases each involved a citizen initiative that addressed a politically charged issue — a prohibition against partisan gerrymandering in Utah, raising the minimum wage and establishing paid sick leave in Michigan, and classifying app-based drivers for companies like Uber and DoorDash as independent contractors in California. In each case, Clinger argues, the state supreme court “upheld the primacy of the people’s direct democracy powers” in the face of efforts to limit or repeal the initiatives, even though the state constitution’s language didn’t provide a clear roadmap about how to adjudicate between the people’s and legislature’s powers. The rulings, Clinger contends, could offer courts in other states “a persuasive framework to safeguard democratic rights.”
Utah’s analysis is particularly notable: the court considered various provisions of the state constitution together to conclude that Utahns have a fundamental right to enact government reforms through an initiative process — meaning that any repeal of such reforms by the state legislature must be subject to a rigorous form of judicial review called strict scrutiny.
In a second essay, Brennan Center senior counsel Alice Clapman situates this Utah decision (along with Michigan’s) historically, as part of “a centuries-long debate about how power should be distributed between citizens and their elected representatives.” The Utah court’s central insight, Clapman argues, is that the state constitution — whose direct democracy provisions reflect hard-fought wins by Progressive Era reformers in the early 20th century — was intended to give citizens “direct policymaking authority over their legislators on matters of governmental reform.” After all, Clapman notes, “when citizens and legislators agree on policy, there’s no need for an initiative or referendum.”
As Clapman observes, Utah’s experience also highlights how the direct democracy debate is far from over. Soon after the state supreme court’s ruling, the Utah legislature proposed a constitutional amendment to go on the ballot this fall that would overturn the high court’s ruling. (A lower court recently blocked the amendment, finding that the ballot language was misleading and that the state had failed to advertise the amendment in newspapers as required by law. The defendants have appealed.)
This proposed amendment is an example of another trend that Clapman has documented: states have sought to make ballot initiative processes more onerous. Just last month, for example, the Arkansas Supreme Court kept an abortion initiative off the ballot after the proponents failed to meet the state’s new signature requirements. But even when initiatives make it to the ballot and become law, when it comes to legal wrangling, that’s often just the beginning.
Alicia Bannon is editor in chief for State Court Report. She is also director of the Judiciary Program at the Brennan Center for Justice.
Suggested Citation: Alicia Bannon, What Does Popular Sovereignty Really Mean?, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Sept. 19, 2024), https://statecourtreport.org/our-work/analysis-opinion/what-does-popular-sovereignty-really-mean.
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