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How Courts Oversee Ballot Initiatives

State courts — and to some degree federal courts — play a significant role in every stage of the direct democracy process.

Published: November 6, 2023
Gavel resting on base
Matei Brancoveanu / 500px/Getty
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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.

Read the rest of this article in State Court Report >>