A Federal Constitutional Amendment to Protect State and Local Ballot Initiatives

An idea for a 28th Amendment that could unite activists of both major political parties and across the ideological spectrum

Ballot initiative systems where voters can directly implement laws or overrule their state legislatures currently exist in 26 states.¹ They are an invaluable tool for implementing public policy, creating new individual legal rights, protecting the will of the democratic majority, and fighting corruption.

However, in 2013, in Hollingsworth v. Perry,² the United States Supreme Court created a major anti-democratic loophole for any state with a ballot initiative system.

Hollingsworth held that Under the United States Constitution, elected state officials charged with defending their state’s laws now have an effective veto power over the laws passed at the ballot box that they personally oppose.³ And those citizens who pass ballot measures have no recourse to enforce the laws that they enact at the ballot box as a matter of federal constitutional law.

At the time it was decided, I supported the outcome of Hollingsworth. However, I now think the Constitution should be amended to overturn this decision.⁴ Here’s why:

I. The Benefits of a Ballot Initiative System

The creation of ballot initiative systems are considered a political triumph of the Progressive Era of the late 19th and early 20th centuries.⁵ They allow the public to enact laws and implement significant public policy changes that their own elected officials might never enact themselves.

This may seem counterintuitive in a system of representative democracy. After all, there is no national ballot initiative system at the federal level. And our elected officials are supposed to represent our interests.

However, our state constitutions are documents of independent force.⁶ In our system of American government, each state government is its own independent co-sovereign.⁷ States are “laboratories of democracy” and have the ability to create new methods of governance.⁸

Although there are legitimate concerns with the consequences of allowing voters to enact laws that are destructive without the wisdom of the traditional legislative process, history and experience demonstrate the necessity of these systems.⁹

Gerrymandering is a prime example. Citizens have had to turn to the ballot box to enact independent redistricting commissions to end gerrymandering that their own state legislatures would never have created on their own.¹⁰ Elected officials have little interest in giving up the power to gerrymander because it reduces their own power and potentially jeopardizes their own jobs.

But extreme gerrymandering poses a threat to democracy because it can manipulate the electorate in such ways that who is elected does not reflect what the electorate voted for. One way in which authoritarian Victor Orban has kept power in Hungary is by changing the electoral rules to gerrymander his party a near certain majority, regardless of how Hungarians vote.¹¹

With modern technology, it has been far easier to draw district maps that create permanent partisan advantages. In some states, a majority of voters can vote for Democratic state legislative candidates but find themselves with a Republican controlled Legislature. In other states, a majority of voters can vote for Republican state legislative candidates but find themselves with a Democratic controlled Legislature. The same can happen with Congressional elections.

But in states with ballot measure systems, the citizenry have a tool to fight back and preserve democracy. What elected officials will not do, the citizens can do themselves.

Beyond the immediate policy objective of any individual ballot initiative, there are greater principles behind a ballot initiative system that are worth supporting.

First, there is a practical purpose to ballot initiatives. When there is partisan gridlock, citizens can enact laws that otherwise could not be passed legislatively. The ballot initiative system also enables the citizens to overrule bad decisions by the legislature.

The most immediate example that comes to mind is California’s mountain lion hunting ban, originally signed into law by Ronald Reagan in 1972. The ban, however, was not permanent, requiring renewal every five years. When the State Legislature refused to renew the law, advocates went to the ballot box. In 1990, over the State Legislature’s objection, Californians voted to permanently ban mountain lion hunting.

With a ballot initiative system, citizens can also bypass corruption, a lack of independent journalism in state capitols, and kneejerk partisan politics in order to enact good laws. Citizens can also enact bad laws - many bad laws. But to quote a Ukrainian, citizens have the democratic right to make their own mistakes.

Second, there is a more fundamental benefit of ballot initiatives. The beauty of a direct democracy system is that in a time of increasing political polarization, it allows citizens to come together in common purpose. Citizens can leave their respective political packs, having the opportunity to see each other as fellow Americans. It gives Americans a chance to recognize what they have in common with those who vote for different political parties, rather than emphasize what sets them apart.

II. Many Strongly Loyal Partisan Voters Often Reject Their Party’s Position When Voting on Ballot Initiatives

Increasing political polarization demonstrates the wisdom of ballot initiative systems too. Frequently, voters do not behave in ways that their state’s partisan politics would seemingly dictate. In Oklahoma, where the Republican controlled state legislature refused to accept the Obamacare Medicaid expansion, voters voted for a Medicaid expansion at the ballot box.¹²

Oklahoma is not becoming a blue state any time soon. The voters remain committed Republicans. Trump carried 65% of the state’s voters in both 2016 and 2020. But where Oklahoma’s elected officials opposed Obamacare’s Medicaid expansion, Oklahoma voters had the ability to expand Medicaid coverage over their objections.

After the United States Supreme Court overturned Roe v. Wade, voters in deep red Kansas, Kentucky, and Montana voted to protect abortion rights within their own state constitutions.¹³ While most of their state’s elected officials supported the decision and opposed the right to choose, a majority of the voters were able to choose otherwise.

Abortion far from the only issue where voters in Republican states have diverged from the stances of their elected representatives. For example, minimum wage increases on the ballot in Missouri, Nebraska, Arkansas, Florida, South Dakota, Alaska, Montana, and Ohio have all passed overwhelmingly. In 2018, Florida voters voted to restore voting rights to formerly incarcerated felons in 2018.¹⁴

In swing states, Republican voters have voted differently from the party line on ballot measures. When it was still a swing state, Oregon voters voted repeatedly against changing the Oregon Constitution to ban obscenity as protected free speech and voted repeatedly for legal assisted suicide of the terminally ill.¹⁵ In 2020, 62% of Nevada voters approved a constitutional protection of same-sex marriage even though the statewide margin between Biden and Trump was less than 3%.¹⁶

But it is not just Republican voters who will vote differently from party line on ballot measures. For example, in 1996, California’s voters voted to prohibit race and gender based affirmative action even while voting to re-elect Bill Clinton by a substantial margin, who had opposed and campaigned against the measure. Significant numbers of Democratic voters split their votes, not aligning with party position.

In 2020, California voters demonstrated their penchant for vote splitting once more.

Voters were asked to repeal the state’s prohibition against race and gender based affirmative action and to repeal a property tax limitation known as Prop 13. The Democratic Party and allied political organizations poured significant resources into passing both of these initiatives. Voters were also asked to overturn recent employment legislation classifying rideshare app workers as employees. The Democratic Party and allied political organizations strongly opposed it.

Joe Biden won California in a massive landslide with nearly 64% of the vote. Yet voters rejected the Democratic Party’s endorsements on the ballot measures. Over 57% of voters rejected bringing back race and gender based affirmative action and over 58% of voters supported allowing app-based workers to become independent contractors. Voters also rejected attempts to restrict Proposition 13.

What all of these results demonstrate is that even as Americans are often capable of independent thinking that is not swayed merely by political partisanship. When Americans vote on a single issue presented before them, they are not necessarily going to vote simply as their political parties dictate.

In a time of increasing division and political polarization, the potential unifying benefit is important. However, there’s a significant problem lurking for ballot initiatives.

III. The United States Supreme Court’s Decision in Hollingsworth v. Perry Jeopardizing the Ballot Initiative System

Like any law enacted by a state legislature, local city council, or even Congress, laws passed through a ballot initiative system are subject to the federal constitution and evaluated the same way by the courts.¹⁷ Even when passed directly at the ballot box, the citizenry can no more violate the United States Constitution than their elected legislative bodies.¹⁸

This is a good thing. Voters should not be able to evade constitutional restrictions to take away the rights of minorities, doing what their elected representatives cannot.

However, when a state law is challenged in court as a violation of the United States Constitution, the state typically defends the constitutionality of the law.

But what if the state declines to do so? What if a state tells the court that the plaintiffs are right and the law should be struck down?

Typically, a group with an interest in the law can step into the shoes of the state and defend the law. In the case of ballot initiatives, that group is usually the official proponents of the ballot initiative.

Suppose though that a federal district court holds that a state law is unconstitutional. Normally, we would expect the state would appeal that ruling. After all, district courts can get things wrong. There is a reason that appeals courts exist. If the state doesn’t appeal the ruling, the lower court ruling stands and the law is gone.

But what if a lower court holds a state law passed by ballot initiative is unconstitutional and the state decides to not appeal?

Imagine a scenario where citizens enact a law at the ballot box that most of their elected officials opposed. Those same elected officials are now charged with defending the law in court. They refuse to defend the law in court. A court strikes down the law as unconstitutional. With a lower court getting rid of a law they opposed, the elected officials decide not to appeal the ruling, ensuring a law they didn’t want does not go into effect.

After Proposition 8, which banned same-sex marriage, passed in 2008, the State of California refused to defend the law in court when challenged as unconstitutional in federal court. The only two elected officials in the state who could defend the law, the Governor and the Attorney General, both refused to do so. Thus, the official ballot measure proponents who had placed Proposition 8 on the ballot were allowed to step in for the state and defend the law in the district court.

Unsurprisingly, when the federal district court struck down Proposition 8 as unconstitutional, the proponents of Proposition 8 wanted to appeal the decision to the Ninth Circuit Court of Appeals. They had invested a great deal of time, money, and effort to pass Proposition 8 at the ballot box. Having won that battle, they wanted to see the law enforced.

But a problem arose for them. Under pre-existing federal precedent for who can bring a case, it was unclear that they could actually appeal the decision.

In federal court, one cannot simply bring a case, one must have what is known as “standing”.¹⁹ That is where one has an actual injury from the conduct of the government that is more than simply speculative or conjectural.²⁰ It’s not enough to simply bring a case against the government for blatantly violating the constitution, one must show that they are directly harmed by the government’s action.²¹

The “standing” requirement is one that is constitutionally required by Article III of the United States Constitution.²² It is a fundamental constitutional rule that governs federal court proceedings, so much so that not even Congress can legislatively confer standing on others who would not ordinarily have it.²³ This same standing rule also applies to those seeking to appeal adverse district court rulings.²⁴

In the case of Proposition 8, the issue arose as to whether the official proponents of Proposition 8 could appeal when the state refused.²⁵ The California Supreme Court unanimously held the proponents of Proposition 8 had standing under state law to appeal the decision against them.²⁶ The Ninth Circuit Court of Appeals then unanimously held the proponents of Proposition 8 had standing under federal law to appeal and proceeded to decide the case.²⁷

However, in Hollingsworth, the United States Supreme Court disagreed.

In a cross-ideological 5-4 decision (both Justice Ruth Bader Ginsburg and Justice Antonin Scalia joined the majority), the United States Supreme Court held that the official proponents of Proposition 8 had no legal ability under the U.S. Constitution to appeal the decision holding Proposition 8 unconstitutional.²⁸ Thus, Proposition 8 was dead, and had been since the federal district court first struck it down in 2010.

I cheered this decision at the time. Not just because it ended Proposition 8, which took away my rights and enshrined my second class citizenship, but because it was well in line with the United States Supreme Court’s prior precedents. The Court demonstrated that it would not carve out a gay exception to the United States Constitution just to help the cause of those wishing to take away gay rights.

While I still think the case was correctly decided under existing precedents, it is time to amend the Constitution to reverse this decision. Official proponents of ballot initiatives should be allowed to fully defend the laws that they pass at the ballot box in federal court. Not allowing it and enabling elected officials to negate laws they dislike is an affront to the values of democracy as well as fairness in the legal system.

Groups seeking to challenge laws often have the ability to cherry-pick judges to get favorable outcomes (at least initially). Some readers may be familiar with Trump appointed U.S. District Court Judge, Matthew Kazmaryck, a longtime anti-abortion activist who issued a ruling this year declaring that the abortion pill, mifepristone, was illegal. His court was handpicked by the lawyers seeking to make the pill illegal.

Imagine that an anti-abortion group opposed to a state constitutional amendment protecting abortion and contraception rights brings a lawsuit against the law based upon dubious legal reasoning. The state is reliably Republican and its statewide elected officials oppose abortion rights. An overwhelming majority of the state’s legislature is Republican and opposes abortion rights too.

However, a majority of the state’s citizens, political affiliations notwithstanding, support abortion rights. The state has a ballot initiative system. And notwithstanding the objections of their elected officials, the state’s voters enact a state constitutional amendment protecting abortion rights at the ballot box.

An anti-abortion group challenges the law and is able to get the case heard before a federal judge like Judge Kazmaryck. If that judge agrees to strike down that law and the elected officials, who are opposed to abortion, decide to not appeal the ruling, the ruling stands, no matter how wrongly decided. A majority of the state’s voters have passed a perfectly constitutional law only to see it negated.

This effectively gives elected officials a veto power over what citizens expressly want.²⁹ Moreover, it enables district court judges to singlehandedly issue rulings that aren’t subject to appellate review, appellate review that might very well reverse them to uphold the law. This is a familiar pattern in ballot initiative fights.

For example, when California first voted to prohibit affirmative action, a district court judge initially struck it down as unconstitutional.³⁰ The judge was reversed on appeal.³¹ When Michigan voted to prohibit affirmative action at its state universities, the Sixth Circuit Court of Appeals held that the law was unconstitutional.³² The United States Supreme Court reversed.³³

But what if California and Michigan had simply declined to defend the laws in court and refused to appeal the adverse decisions? The laws, passed by the voters, would have been struck down and legally unenforceable even though they were ultimately constitutional. Citizens who had devoted massive amounts of time, money, and effort to pass a constitutionally permissible law would see their efforts flushed down the drain.

Now, some would suggest that this scenario is improbable because elected officials, dependent on the same voters for their elections would defend laws it passes in court.

But that’s not guaranteed, as demonstrated by the Proposition 8 case. Voters often have complex feelings about their elected officials and their feelings on various issues do not neatly align. As the late New York City Mayor Ed Koch once said, “If you agree with me on nine out of 12 issues, vote for me. If you agree with me on 12 out of 12, see a psychiatrist.”³⁴

In this time of increasing partisan polarization, it is not hard to see this occurring in a variety of different circumstances and impacting issues both left and right. If a creative constitutional theory can be developed and a sympathetic federal judge found, it’s not hard to envision elected officials effectively over-ruling their citizenry.

In Republican states, voters might vote to expand Medicaid coverage, increase the minimum wage, restore voting rights to the formerly incarcerated, prevent legally adjudicated insane individuals from owning an unlimited amount of military grade assault weaponry, or protect women’s abortion and contraception rights.

Having been rejected by the voters, opponents have an opportunity to over-ride the electorate through legal chicanery.

It’s not hard to envision Democratic elected officials doing the same to their own voters on other hot button issues where voters may not agree with their party. Voters in blue states, for example, might vote to lower taxes, impose tougher criminal sentences, separate collegiate and professional sports competitions by biological sex, or implement business friendly policies.

In a time of increasing political polarization, voters in states where ballot initiatives are available are likely to take advantage of them to pass laws that the political parties running their states will not. But that same level of political polarization will serve to insulate and protect elected officials who openly defy the electorate.

It is easy to take one side or another on this issue depending upon one’s position on the ballot initiative that is litigated and what the outcome is.

If one is a strong opponent of abortion, the idea of a constitutional amendment protecting abortion being invalidated is probably superficially appealing. If one is a strong supporter of affirmative action, the idea of a constitutional amendment prohibiting affirmative action being invalidated is probably superficially appealing.

I don’t say this to cast judgment. I say this because this was how I personally felt in the early 2010s about Proposition 8. Proposition 8 was vile and harmful. I wanted Proposition 8 gone and I didn’t care how that removal came about.

However, I have come to realize that this method of removing Proposition 8 was ultimately the incorrect one.

People of good faith are going to legitimately disagree on many hot button issues. We live in a diverse, pluralistic democracy where people reach different conclusions on many issues, both controversial and not. Recognizing that not everyone is going to see eye to eye on everything and respecting those viewpoints is the fundamental premise of our system of constitutional law.

Where conservatives, liberals, libertarians, socialists, progressives, and centrists alike should agree though is that the democratic results of the electorate, whatever they may be, need to be respected. This is true not just of elections of candidates to public office but of election results for ballot initiatives.

This doesn’t mean that voters can pass unconstitutional laws any more than their elected representatives can.³⁵ However, fully constitutional laws passed by the voters need to be respected.³⁶ They are not respected if elected officials have the ability to get rid of those laws and the citizens cannot enforce them.

Moreover, if laws passed by the electorate can be thrown out on a whim, it jeopardizes the public’s confidence in democracy and the political process.³⁷ Citizens will come to an inevitable conclusion that democracy is not worthwhile. They cannot get their elected officials to implement laws they want, cannot change who their elected officials are, and cannot change the laws at the ballot box because when they do, those same elected officials conspire with unelected courts to invalidate them.

IV. A Proposal for a 28th Amendment

What can be done to prevent this and preserve democratic rights?

I propose a 28th Amendment to the United States Constitution to reverse the United States Supreme Court.

As a starting point (others will undoubtedly have better language), I propose the following language:

Section 1. In all states with a ballot initiative process, an official initiative proponent or functional equivalent of a voter-enacted law has the right to appear as a party in any federal judicial proceeding challenging the validity of that law, in order to defend the validity of their voter-approved initiative or to appeal a judgment invalidating their voter-approved initiative when the public officials who ordinarily provide such a defense or file such an appeal decline to do so. This section shall only apply to judicial proceedings arising under Article I or Article III of this Constitution.

Section 2. In all states with a ballot initiative process, an official initiative proponent or functional equivalent of a voter-enacted law under Section 1 shall have the same rights as any state with regards to appeals to the United States Supreme Court.

Section 3. This constitutional amendment does not create new methods for or alter pre-existing methods for enacting legislation and constitutional amendments under this Constitution.

Section 4. This constitutional amendment recognizes the authority of individual states to create ballot initiative systems but does not require states to create them. This constitutional amendment shall not be construed to govern the individual laws established by any state for its ballot initiative system.

Section 5. This constitutional amendment is self-executing.

I hasten to acknowledge the reality. Passing any constitutional amendment to the United States Constitution will be extremely difficult due to the onerous process. The last constitutional amendment was enacted 31 years ago and the effort to enact that amendment had started in the 1790s.

And although there are many calls for a 28th Amendment from both left and right, most are on controversial issues where support can only be found in one segment of the electorate. They are highly unlikely to garner the needed political support necessary for the very difficult task of changing the Constitution.

Many of the proposals for constitutional amendments seem to be either (1) based on wishful thinking, (2) lacking a deep understanding of the country beyond political circles, (3) designed to boost social media accounts, (4) geared towards boosting the fundraising of individual politicians, (5) driven by the personal grievances of individual politicians, or (6) some combination.

This proposal, however, is different. It doesn’t seek to enact specific policy goals that many might oppose. It fixes a problem that activists from across the political spectrum could unite behind. And it is based upon a guiding democratic principle. In some ways, it might even prove unifying in this intense time of political polarization and division.

The United States Supreme Court created an anti-democratic loophole in Hollingsworth v. Perry. It is past time to amend the Constitution to close it, and doing so should unite Americans from across the ideological spectrum.

1. Hollingsworth v. Perry, 570 U.S. 693, 716 (2013)(Kennedy, J., dissenting).

2. 570 U.S. 693 (2013)(majority opinion).

3. Hollingsworth v. Perry, 570 U.S. 693, 721 (2013)(Kennedy, J., dissenting)(“The California Supreme Court has determined that this purpose is undermined if the very officials the initiative process seeks to circumvent are the only parties who can defend an enacted initiative when it is challenged in a legal proceeding. Giving the Governor and attorney general this de facto veto will erode one of the cornerstones of the State’s governmental structure.”)(citations omitted).

4. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.