BALLOT BOX BATTLES WITH THE COUNTER-INITIATIVE:
PUBLIC CHOICE OR CURE FOR AGENDA CONTROL?
by K. K. DuVivier
University of Colorado School of Law
Campus Box 401
Boulder, CO 80309-0401
(c) 1993 by K.K. DuVivier.
Discussion draft; please do not cite or quote without permission of author.
Table of Contents
- I. BACKGROUND
- A. History of the Initiative
- B. The Counter-initiative’s Role in Initiative Fever
- C. Despite the Increase, Voters Want to Keep the Process
- II. DEFINITIONS OF CONTRARY MEASURES AND CONVENTIONAL RESOLUTION OF CONFLICTS
- A. Presumption of Validity
- B. Determining Whether Initiatives Conflict
- 1) Sequential enactments
- 2) Determination of conflict
- C. Resolution of Conflicts
- III. VOTING THEORY AND THE ROLE OF THE COUNTER-INITIATIVE
The ballot initiative process is barely a century old, and some of its major flaws are just now coming to light. In this age of the sound byte, a simplified “yes/no” choice is an appealing solution to complex questions. As with legislation, voters are content to let someone else figure out the details.
Initiative law, however, has none of the checks of the legislative process. Initiative drafters, unlike elected representatives, are not accountable to voters in the electoral process. Although many drafters may believe their efforts are altruistic, public choice theory demonstrates that initiative drafters can manipulate the initiative process to promote their own individual interests. The November 1993 passage of an initiative permitting a single San Francisco police officer to carry his dummy highlights how self-serving initiatives can be.
While many voters hold the initiative process sacrosanct, scholars and legislators have called for changes to an imperfect process. Reforms may be warranted, but those that seek to increase the number of signatures to qualify a measure for the ballot are misguided. By making ballot accessibility more difficult and by reducing the number of initiatives, these reforms place agenda control more squarely in the hands of a few monied interests.
In contrast, the use of counter-initiatives may mitigate the problem of interest-group agenda control. Counter-initiatives — multiple initiatives addressing similar issues on a single ballot — have been widely criticized by the few commentators who have recognized the phenomenon. Because counter-initiatives are a relatively new, but growing, force, most counter-initiative battles are being fought on the ballot, rather than in the courts. California has addressed the interpretation of counter-initiatives, but guidance for interpreting them in other states may come from prece dents addressing the resolution of individual provision conflicts.
Counter-initiatives allow diverse groups to participate more fully in addressing an issue than simply registering a “yes” or “no” response to a general concept. Agenda control is wrested from a single individual or interest group and shared by others most affected by the result. Counter-initiatives can focus the debate and help educate conscientious citizens. Although a simple choice may be appealing, counter-initiatives force all voters to recognize their role in and accountability for the detailed outcomes resulting from citizen-made laws.
In June of 1988, a majority of California voters passed two ballot initiatives on campaign reform: Proposition 68 and Proposition 73. But Californians have yet to see any campaign reform in their state. The California Supreme Court determined both initiatives proposed “alternative regulatory schemes, [and there was] a fundamental conflict” between them, therefore, only the initiative with the greatest number of votes, Proposition 73, could be operative.4 This result insured there would be no re form, because shortly before the California Supreme Court’s decision, the significant provisions of Proposition 73, those limiting campaign contributions, were declared unconstitutional.5
The November 1990 ballot in California represented one of the largest counter-initiative battles in history. The battle started with the introduction of “Big Green,” a comprehensive “16,000-word environmental measure that would curtail the felling of ancient forests, halt the spraying of dangerous pesticides and restrict offshore oil drilling. . . .” Big Green was not stringent enough for some, so “anti-logging militants” introduced a “more radical anti-logging initiative.” Fearing that simply to oppose the other initiatives would be a losing strategy, the timber industry entered the fray by countering with Proposition 138, a more moderate regulation of timber harvesting.
Also in response to Big Green, farm groups and chemical manufacturers introduced Proposition 135. Proposition 135 would control pesticide use, but required less stringent regulations than Big Green. In 1986, these same farm groups and chemical manufacture rs had simply opposed a pesticide initiative on the ballot and “were clobbered.” With Proposition 135, they hoped to make a “pre-emptive strike,” but Big Green supporters outmaneuvered the chemical industry by revealing its counter-initiative strategy in advance.11
On the same 1990 ballot in California, another battle raged over taxes on alcoholic beverages. Several groups including The California Chapters of Mothers Against Drunk Driving, The California Association of Highway Patrolmen, and The California Council on Alcohol Problems sponsored Proposition 134, an initiative statute to place a “nickel-a-drink” tax on alcohol to fund various health, mental health, and criminal justice programs. The alcohol industry responded first by lobbying the legislature to place a legislative constitutional amendment  concerning taxes on alcoholic beverages on the ballot for citizen approval. Second, the alcohol industry helped fund a “Trojan horse” or “ballot virus” measure, Proposition 136. Under the guise of a taxpayer’s right to vote on new taxes, a provision in Proposition 136 could have invalidated completely Big Green and Proposition 134, as well as two crime control measures.
Of the seventeen initiated measures on the California statewide ballot in 1990, only three passed. All of the counter-initiative measures failed. Although the use of counter-initiatives waxes and wanes, in most states they are a viable method of introducing alternative viewpoints. The lessons to be gleaned from states and local governments with a history of counter-initiatives use may well benefit those that have not yet experienced this phenomenon.
Part I of this article will provide some history of initiative and counter-initiative use throughout the states. Part II addresses how portions and entire initiative measures have been deemed in conflict and how such conflicts have conventionally been resolved. Finally, in Part III, voting theory is discussed and the role of the counter-initiative in balancing the agenda control special interests have exercised in formulating initiatives without opposition.
Twenty-three states and the District of Columbia have constitutional or statutory provisions relating to some form of statewide initiative for constitutional amendments or statutory enactments. Some states have both constitutional and statutory initiatives.
The initiative is somewhat a “western phenomenon” in the United States because eleven western states and eight midwestern and plains states have initiative provisions. In contrast, only two eastern states, two southern states and the District of Columbia have such provisions. The Commonwealth of Pennsylvania section of Common Cause is currently attempting to introduce the initiative process in that state.
Not only are initiatives enacted independently of the legislature, in many states the executive veto is not permitted, and the legislature may not amend or repeal an initiative measure.
The first states to adopt the statewide initiative procedure were South Dakota and Oregon in 1898. In California, the initiative and referendum process was introduced after a fifteen-year struggle by the Progressive movement culminated in the election of its candidate Governor Hiram Johnson. Governor Johnson won largely on the promise to stop the corruption of “the former political master of this State, the Southern Pacific Company.”
In the early decades of the twentieth century, initiatives were numerous and commonplace. Beginning in the early 1940s and extending through the 1960s, initiative politicking declined substantially in all states. Many experts came to believe it was out of date.
Some commentators credit angry voters in California with the rebirth of the initiative process. Since California voters passed Proposition 13 in 1978, initiatives have seen a dramatic resurgence. In some states direct democracy legislating rivals legislating by the elected representatives or the executive in terms of overall policy significance. “‘Initiative fever’ [in California] has reached epidemic proportions.”
Initiative use has surged in response to a growing public disenchantment with federal and state elected officials. Many voters have a jaundiced view of their elected officials fueled by negative campaigns and massive PAC contributions from special interests. “The initiative gives the public, at least in some states, a chance to bypass these ‘tainted’ politicians and government institutions and take power into their own hands. Clearly, public disillusionment with elected officials has helped generate a new interest in the initiative.”
California and Oregon alone have accounted for one-third of all initiatives qualifying in the 1980s. Throughout this century, these two states have had the highest consistent initiative propensity. Montana, a moderate-use state overall, was the third most active initiative state in the 1980s. The five high-use states (Oregon, California, North Dakota, Colorado, and Arizona) account for nearly 60 percent of initiatives qualified in the 23 initiative states.
At the other end of the “initiative-propensity continuum,” five states accounted for only 7 percent of the state initiatives (Idaho, Maine, Nebraska, Nevada, and Utah).
In terms of numbers of measures and pages in the ballot handbooks, the use of counter-initiatives contributes significantly to the proliferation of measures on each ballot. The November 1990 ballot in California had seventeen initiatives and constitutional amendments, the highest number since 1914 when there were also seventeen initiatives. Three-fifths of the total measures ever submitted to California voters have been introduced during the last twenty years, or just one-quarter of the initiative’s history in the state.
The November 1988 state ballot in California also sported multiple counter-initiatives. Four initiatives dealt with reform of automobile insurance rates (Propositions 100, 101, 103, and 104). Only one of the four, Proposition 103, passed. In May 1989, a declawed version of Prop. 103 was upheld by the California Supreme Court; the court said Prop. 103 was valid, but the insurance commissioner can grant relief from rollbacks, where necessary to establish “fair and reasonable” premium levels.
In Colorado, the November 1992 statewide ballot contained ten initiated constitutional amendments, the highest number on the Colorado ballot since 1912 when voters were asked to vote on fourteen constitutional amendments. Of the ten initiatives in 1992, four constitutional amendments addressed gambling in different areas in the state. The ten measures on the Colorado ballot in November 1992 were distilled from about forty-five different voter petitions circulating before the election (six for a school voucher concept, eleven for gambling). The remaining measures did not garner enough valid signatures to be placed on the ballot.
Although counter-initiatives tax voter patience and require more time to study the issues and to vote, few citizens are willing to abandon this safety-valve process. In a statewide poll conducted in 1985 by the Institute of Politics & Government, seventy-one percent of Californians said they liked the initiative process. “Clearly, the initiative and referendum processes offer expedient means for citizens to ask and answer those politically sensitive questions that politicians have successfully avoided.” “[I]t enlivens political debate and offers a needed pipeline for reform.”
In Colorado, in a special poll conducted in 1990 by Talmey-Drake Research, more than fifty percent of voters said they “think there are ‘not enough’ ballot issues.” An additional fifteen percent thought “there are the ‘right number.'” Combined, about “70 percent [expressed] satisfaction with the process.”
In an effort to halt this locomotive coming upon them, some states have turned to reforms. One proposed solution is to increase the threshold number of signatures to qualify a measure for the ballot. Change such as the “indirect initiative” would put a measure to public vote only if it failed to pass in the legislature. Despite shortcomings with the process, few voters are willing to give the initiative up. “They view it as sort of a whip, something to hold over the head of the Legislature. . . . There’s something fundamentally important about it.”
In states that permit citizen initiatives, several initiative measures frequently appear on the ballot. How then is it determined that two or more initiatives are counter-initiatives? Few courts have addressed the invalidation of one entire initiative by a countervailing measure. More often judicial analysis has focused on a determination of specific conflicting provisions.
This section will address how courts traditionally have defined conflict and how they have resolved such conflicts in the context of both individual initiative provisions and entire counter-initiatives.
In 1912 the United States Supreme Court determined that the initiative system of direct democracy did not violate the federal Constitution’s guarantee of a “republican form of government.” Since that time, courts have focused not on the legitimacy of the process, but instead “on the standard of legal review to be used in assessing the legitimacy of individual ballot initiatives.”
While some commentators have urged heightened judicial scrutiny of initiatives, “judicial acceptance of ballot propositions has been essentially unquestioning and laudatory of the process.” Courts generally give ballot initiatives great deference and express reluctance to overturn them. A few states have even stripped their judiciary of the power to review initiatives at all.
Despite strong arguments concerning the need for judicial intervention, courts seem sensitive to claims that they are elevating their judgments over the expressed will of the people. “While the initiative and referendum may not fit into a given philosopher’s model, and while these powers may, like any others, be misused from time to time, one would hope that the courts will not fall prey to the elitist argument that the people do not know what is best for them and therefore need someone else to tell them.” Most recently, the United States Supreme Court declined the opportunity to require higher judicial scrutiny for an initiative measure when it upheld California’s property tax relief initiative Proposition 13.
Because of the revered status of citizen-made law, it is not surprising that initiatives are rarely invalidated in their entirety. Generally, only severed portions of an initiative are found invalid; the remaining provisions may be implemented. In California, the courts have completely invalidated only three of the twenty-nine initiatives passed since 1974. Counter-initiatives played a key role in these invalidations; two of the three were invalidated as irreconcilable with a conflicting alternative. Thus, the survival of any of an initiative’s objectives may hinge on whether it is classified as a counter-initiative.
Because there is a presumption that all law should be given proper effect, whether passed directly by the people or by their representatives, the courts generally are cautious in determining that initiatives contain mutually exclusive provisions. The analysis requires first a determination of conflict under a range of tests. Second, state by state rules determine how the conflict is to be resolved.
Most often the issue of conflict in statutory or constitutional provisions arises when a subsequent provision is enacted. However, there is a strong presumption against implied repeal of a statutory or constitutional provision by subsequent enactment. The rule applied to legislation providing that subsequent enactments are “to be construed harmoniously with antecedent provisions” frequently applies as well to initiatives.
When there is an irreconcilable conflict, however, the most recent enactment, even if passed by fewer voters than the previous initiative, prevails because the later in time is “the latest expression of the will of the people” or “the last word from the people.” Thus, a ballot proposal cannot be invalidated simply because it conflicts with an existing provision. If passed by a majority, the new law supersedes previous versions.
Three states have methods of determining conflicts and grouping counter-initiatives as alternatives on the ballot. In Massachusetts, citizen-sponsored initiatives may be juxtaposed if the legislature determines they are “alternative measures.” In Washington state, the legislature may propose an alternative to a citizen initiative. Voters are given the option first of indicating whether they wish to vote for either measure or none. If the voters indicate they do wish to choose one of the measures, they then vote their preference. If the majority of voters wish to make a choice, then the measure receiving the majority of votes becomes law. Only one measure can become law. Maine also has a system for juxtaposing a legislature-sponsored initiative on the ballot as an alternative to a citizen-sponsored measure.
In states that do not have a method for defining conflict on the ballot itself, conflicts must be determined, and resolved, after the election. Fourteen of the twenty-three initiative states have constitutional or statutory provisions to resolve conflicts if counter-initiatives are adopted in the same election. However, implementation of these conflict provisions is avoided if the court determines that the initiative measures can coexist harmoniously. Then neither initiative can be considered void for being inconsistent with the others.
There is no uniform test for determining whether initiative provisions conflict because the constitutional and statutory requirements vary widely from state to state. However, the methods for determining conflict fall generally into one of three categories: (a) Do the provisions of one initiative “imply the repeal” of another? (b) Do the initiatives have the same ultimate “purpose” achieved through similar “means”? or (c) Does the language of one of the initiatives expressly state that a conflict exists? Under the narrowest implied repeal test, few initiative provisions would be invalidated as conflicting. If express statements of conflict in an initiative are upheld by the courts, they provide the most extensive opportunities to invalidate other initiatives through a presumption of conflict.
Under the “implied repeal” test, two ballot measures are in conflict if one measure would have impliedly repealed the other had it been enacted later. This test requires extensive overlap of two potentially-conflicting provisions and is the most stringent for determining conflict.
A form of the implied repeal test was applied by the Massachusetts Supreme Court in Buckley v. Secretary of Commonwealth.74 The Massachusetts Constitution permits the legislature to group two or more initiative provisions on the ballot as alternatives to each other. Although the Massachusetts Constitution provides no guidelines for identifying measures as alternatives, the convention debates suggest that the concept of “alternative measures” involves those “which overlap, are logically inconsistent or for other objective reasons could not or should not stand side-by-side as law together.” The Buckley court refused “to give an overbroad meaning to the word ‘substitute'” and narrowed the legislature’s right to craft an alternative proposal. The legislature had the power only “to edit, polish or amend an initiative proposal while retaining in that process the sense of the proposal so revised.”
Because a legislative proposal for stiffer sentences in gun-related crimes was “quite different in context and effect” from a citizen initiative banning the private possession and sale of handguns, the Buckley court found the two measures were not true alternatives and could not be placed on the ballot as such.
The Colorado Supreme Court has traditionally used a form of the implied repeal test. The court articulated the test with the following question: “Does one [initiative provision] authorize what the other forbids or forbid what the other authorizes?” Employing this test, the court found that the differences between portions of two constitutional amendments concerning the process of reapportionment were irreconcilable and the provisions in the amendment receiving the most votes would prevail.
A less restrictive test for determining whether initiative provisions are in conflict is the “purpose and means” test. Under this standard, any two measures accomplishing the same general purpose by substantially similar means could be considered in conflict.
The Alaska Supreme Court applied a form of the purpose and means test in Warren v. Boucher.82 Under Alaska law, a citizen initiative may be invalidated if the legislature enacts a statute that is “substantially the same as the proposed [initiative].” The Warren court stated that “[the legislature] has broad power to change an initiative” and emphasized that it was not “passing here on the question of whether an amendment so vitiates an act passed by initiative as to constitute its repeal.” Instead, the court concluded that the two campaign funding measures before it were “substantially the same” because they “accomplish the same general goals” and ecause they “adopt similar, although not identical, functional techniques to accomplish those goals.” Therefore, the citizen initiative was void.
The California Supreme Court also seemed to apply a form of the purpose and means test in Taxpayers to Limit Campaign Spending v. Fair Political Practices Comm’n.87 Although the two propositions set forth varying schemes for campaign reform, the court looked to the overall purpose of the initiatives and how they were presented to voters to conclude that they were mutually exclusive alternatives. “[W]hen two or more measures are competing initiatives, either because they are expressly offered as ‘all or nothing’ alternatives or because each creates a comprehensive regulatory scheme related to the same subject . . . ,” the two propositions conflict and only the one with the highest number of supporting votes can become law.
There is even some indication that Colorado may be moving away from the traditional implied repeal test. In Submission of Interrogatories on Senate Bill 93-74,89 the Colorado Supreme Court first reiterated its confidence in the traditional test by stating that it “should not resort to rules that give effect to one provision at the expense of the other unless there is irreconcilable, material, and direct conflict between the two amendments.” Applying the traditional test, the Colorado Supreme Court found “no irreconcilable, material, and direct conflict” between Amendment 1 (a comprehensive tax-reform and budgetary measure) and Amendment 8 (a funding mechanism for recreational lands). This conclusion would seem to permit all provisions of both amendments to take effect.
However, the Senate Bill 93-74 court went on to recognize an “implicit conflict” between the two amendments. The court then continued its analysis with an emphasis on each amendment’s purpose: how to balance the underlying purposes of each amendment in an effort to “give effect to the expression to the will of the people in enacting both amendments.” Finally, Amendment 8 prevailed because its proceeds were exempted from the restriction provisions of Amendment 1.
One of the newest devices on the initiative scene is language expressly stating that the initiative, or portions of it, are in conflict with one or more initiatives on the same ballot. Such an express provision is an efficient method of defining conflict. With the wording in the initiative itself, voters are put on notice of the conflict and their obligation to make a choice between options. Furthermore, if the initiative containing the conflict language passes with a greater number of votes, the courts might interpret the conflict provision as an express mandate of the people.
In its most benign form, such a statement of conflict would only express the obvious: that two provisions dealing with the same subject matter conflict. However, some recent initiatives have contained more expansive expressions of conflict. Such an expansive provision has been variously dubbed a “winner-take-all” provision, a “ballot virus,” or a “Trojan horse.”
Proposition 136 on the November 1990 ballot in California contained one of the most extensive ballot virus provisions yet proposed. Hidden in the Trojan horse guise of a proposition that would limit taxation and allow more voter control of finances, Proposition 136 contained language that could have infected and completely eliminated four unrelated measures on the November 1990 ballot.
Opponents challenged Proposition 136 as a violation of California’s single subject rule. Under Proposition 136’s terms, any propositions that conflicted in part — whether they addressed environmental concerns, crime control, or liquor taxes — became “void in their entirety.”
Voters resolved the battle of Proposition 136 and its ballot virus provision; the measure was defeated at the polls before the California Supreme Court had an opportunity to rule on its validity. No other state courts have yet been challenged to interpret a similar ballot virus measure.
Once the provisions of two initiatives are deemed to be in conflict, the states have two basic methods for resolving the dispute. In eight of the fourteen states that address conflicts, only one measure can become law if more than one initiative passes on the same subject. In these states, if two or more measures on the same subject are enacted, then “the one” or “the measure” or that entire initiative receiving the highest number of affirmative votes prevails.
In contrast, five states require that most provisions of conflicting initiatives be harmonized. If two or more initiatives are passed dealing with the same subject, then the provisions of the one receiving the fewer votes are void only if they conflict with specific provisions in the measure receiving more votes. If two or more measures are adopted, then the one receiving the greatest number of votes shall be adopted “in all particulars as to which there is a conflict” or “as to all conflicting provisions.”
Traditionally, California has resolved conflicts by harmonizing provisions. For example, in Estate of Gibson v. Bird,106 the California Supreme Court attempted a provision-by-provision comparison of two successful measures that both repealed the state’s inheritance tax laws in 1982. The court determined the two measures were essentially the same, but they conflicted only with respect to the effective date. Therefore, the initiative receiving more votes, and its effective date, superseded only the conflicting measure’s retroactive date-section. All other provisions were harmonized.
Recently, in Taxpayers to Limit Campaign Spending v. Fair Political Practices Comm’n,107 the California Supreme Court determined that section 10(b) of the California Constitution did not always compel a section-by-section reconciliation. Instead, based upon a historic interpretation of constitutional language, the Court permitted a complete invalidation of the conflicting initiative. A fact that helped persuade the Taxpayer court not to harmonize provisions was that four attempts were made by various governmental bodies to reconcile the conflict. Provision-by-provision analysis achieved no less than three different “Frankenstein’s monster” interpretations: one by the Legislative Counsel, one by the Fair Political Practices Commission, and one by the court of appeals. The combined results would produce more restrictive campaign finance reform laws than either Proposition 73 or Proposition 68 above.
The “hybrid regulatory scheme” resulting from harmonization troubled the court for two reasons. First, these hybrids created “unworkable laws.” Second, the court was required to apply a “fictious electoral intent” to enact a hybrid scheme.
Taking comfort in the fact that the measures were presented to voters as mutually exclusive alternatives that sought to “propose alternative regulatory schemes,” the Taxpayer court concluded that “a fundamental conflict exists.” Thus, Taxpayer appeared to create a bifurcated standard of review for counter-initiatives. If two initiatives seek to “comprehensively regulate the same subject,” the measure receiving more votes prevails in its entirety. If the conflict between alternatives is minor, non-conflicting provisions are harmonized.
California decisions since Taxpayers have avoided invalidating any conflicting initiatives in their entirety. In some cases, the conflict between two initiatives has been characterized as minor, and the provisions of both initiatives are combined. In Yoshisato v. Superior Court,119 the court determined two measures relating to criminal justice were “complementary and supplementary” rather than “competing” because they were not presented to voters as alternatives. Non-conflicting provisions were again harmonized.
The court’s focus in both Taxpayers and Yoshisato on how a measure is presented to the voters may signal how initiative-created conflicts will be resolved. If the express statement of conflict is specific enough for the court to presume that voters are on notice that the two measures cannot coexist, the courts may enforce the provision and invalidate the measure receiving less votes. If the conflict provision in an initiative attacks by stealth, like the ballot virus in Proposition 136, the courts may not find it controlling. The very fact that other measures are passed by a majority, when voters presumably knew they would be invalidated in their entirety, might repute any presumption that the conflict provision should be applied.
Through the initiative process, the people gained an ability to set the political agenda. If the legislature avoided a controversial issue, the people could spotlight it by placing that issue on the ballot.
Because initiatives become law by majority vote, they are afforded significant validity as the “will of the majority.” Although courts often serve a countermajoritarian function by protecting the rights of individuals and minority groups, there is a presumption that a majority vote on an initiative legitimately reflects the will of most people. Furthermore, our society has an attitude “in which majoritarianism enjoys increased attention and acceptance.”
However, voting theory places into doubt the presumption that a true majority preference can accurately be measured. Manipulation of how a question is presented, or “agenda control,” can often determine the outcome of a vote. When different alternatives are presented, the majority of voters can “cycle” through different choices and no single alternative reflects a stable or true majority preference.
The ballot initiative represents one of the most extreme opportunities for agenda control in modern lawmaking. In addition, this agenda control rests in the hands of a few unelected individuals. Initiative drafters have unchecked power to formulate the issues to be addressed by a ballot measure. In contrast to the legislative process, once the initiative is drafted and voted into law, there are no opportunities for negotiation or amendment.
Under Public Choice Theory, the basis for political conduct is self-interest. Since the early 1970s, cost factors have driven the initiative option out of the grasp of smaller volunteer efforts. There has been a growing trend for initiatives to be available only for highly motivated and well-funded interest groups. Reforms that require additional signatures to qualify a measure for the ballot only exacerbate the problem by deepening the chasm between volunteer efforts and moneyed interests.
Counter-initiatives have been widely criticized for confusing voters. However, in theory, counter-initiatives provide voters with many alternatives, instead of simple yes-no choices, and should therefore provide better barometers of the will of the majority.
Ballot initiatives present a highly artificial dipolarity. Voters are given only a binary yes-no choice on any issue. In fact the number of alternatives could be as great as the number of individual voters attempting to record their preferences. Yet, generally in the initiative setting, alternatives are not addressed and voter’s individual preferences may not be registered. In reducing complex questions to such simplistic terms, the ballot initiative recreates the paradox of pairwise voting.
In 1785, the Marquis de Condorcet first observed that no accurate majority preference could be measured when three or more mutually exclusive alternatives were grouped for a vote into sequential paired alternatives. Thus “majority rule may not be able to resolve the choice among three or more mutually exclusive alternatives.” This voting paradox evolved into the study of collective choice or choice “from among multiple alternatives that are mutually exclusive.” The theory was expanded by Arrow and applied to most decision-making processes.
In simplified terms, the paradox arises because no true majority preference can be measured. The majority vote cycles to different choices as alternatives are provided. The probability of the paradox’s occurring increases rapidly when the number of individuals voting is large and the number of [citizen] preferences is multidimensional.
The presumed majoritarian outcome resulting from a statewide ballot initiative is given great deference by the courts. Criticism of judicial review often focuses on the court’s interference with the expressed will of the majority. Yet, because of the voting paradox, the initiative, which attempts to poll millions of individual preferences, is an inaccurate measure of true majority preference, if such a preference in fact exists.
Because the majority preference can cycle to different choices under the paradox, the party controlling the agenda, or presentation of choices, often controls the outcome. Thus, the paradox raises a “grave skepticism about whether the product of any decisionmaking process can be thought to represent a true ordering of preferences untainted by the constraints of the selection process. . . . Within each ranking of preferences is the ‘cycling’ problem of divergent preferences being forged into a majority vote by the constraints of the selection process. . . .”
When the conditions of the paradox exist, the actual choice among alternatives is determined by how the choices are ordered. Thus, “the person who sets the agenda can control the outcome.” With ballot initiatives, the drafters are often moneyed minority interests that can exploit agenda control to leverage their position into a majority vote.
Social Choice Theory provides an effective, albeit simplified, model for understanding the trend in initiative use in the last two decades. Small, single-minded, well-organized interest groups can convey their messages more effectively than large dispersed groups with diverse agendas. Ballot initiatives provide the ideal vehicle for such interests. There are no legislative-process checks nor is there any accountability through the electoral process.
Initiatives are drafted by unelected individuals or partisans of interest groups. They are often clumsily written. Portions may be invalidated and produce disappointing results because the authors were more interested in making a statement than writing law. Sometimes they are written to specially benefit the drafter. Legislation undergoes “hearings, debates, discussions, and calm deliberate decision-making by representatives whose full-time job is to become thoroughly informed. All of these deliberative procedures are bypassed by the initiative process.” Once an initiative becomes law, there is no process for amendment other than to have the voters pass an opposing measure.
The electoral process also provides a check on special interests that is not available in the initiative setting. Certainly, money wields power in the legislature. “Payments take the form of campaign contributions, votes, implicit promises of future favors, and sometimes outright bribes. In short, legislation is ‘sold’ by the legislature and ‘bought’ by the beneficiaries of the legislation.” However, legislators must face reelection, and they cannot be overly responsive to the pressures of special interest groups without negative repercussions at the ballot box.
Initiatives are a way for politicians to avoid responsibility and for special interests to get their own way on issues. “There is no electoral downside for special interests for putting them [initiatives] on the ballot.” Thus the legislative process minimizes the impact of minority manipulation, the initiative process rewards it.
Special interest groups have quickly moved in to make use of the initiative process. Since 1978, the trend has been toward “professionalization.” “What was once a valuable agenda-setting mechanism for citizens has increasingly become a tool of professional special interest groups.” Money has become the predominant factor. “It used to take a ground swell of popular support to get something on the ballot. Now its just money and special interests.”
After Meyer v. Grant,147 the initiative process experienced a loss of innocence. Paid signature gatherers are now a fact of life. Even citizen “grassroots” organizations such as Common Cause use them. In California, a whole industry gathers signatures and hawks propositions. At forty to sixty cents a signature, it can cost from $850,000 to one million dollars to gain enough signatures to qualify an initiative for the ballot in California. It was a $130 million bonanza for political consultants, advertising agencies, and television stations in 1988. “Anyone with the money has been able to grab the state’s soap box for an election cycle.”
Lowenstein documented that funding was the primary factor in determining the outcome of an initiative battle. Despite popular enthusiasm for a measure, increased spending by the opposing campaign could ensure its defeat. At one time civic organizations and volunteer groups could qualify an initiative. “Today, a viable qualification effort requires exorbitant financial resources, professional administration, and access to sophisticated campaign technology.”
The counter-initiative has been almost universally maligned as an obfuscatory process. Its critics argue that monied-interests have unfairly used the process to oppose and defeat legitimate citizen measures and that there is something dishonest or insidious in launching a counter-initiative instead of simply mounting a “Vote No” campaign against the original measure. They suggest it is inappropriate to bill counter-initiatives as more moderate or simplified proposals.
In some instances counter-initiatives have been deceptive. Yet, because the wording of any initiative is determined by an unelected and unaccountable individual or small group, it is the imperfect initiative process itself that provides opportunities for manipulation of voters. There is no guarantee that the drafters of original initiatives have any purer motives than those of a counter-proposal.
One of the original objectives of the initiative was to educate voters and make them participate more in the political process. Counter-initiatives can facilitate citizen education and participation. In the past two decades, the complexity of initiatives has been increasing; many require a post-graduate education to read and interpret. As a strategy for luring more voters, some counter-initiatives are simpler and more focused on a few issues than the original measure. Thus, counter-initiatives can provide an impetus for simplifying all initiatives.
Although it may be “pure mythology” to “suggest that voters approve, let alone underst[and], the many facets” of complex initiatives, courts continue to apply a presumption that the public understands what it is voting for, or else risk being charged with elitism. If voters truly understand complex initiatives, counter-initiatives should pose no threat. By proposing alternative language for key provisions, counter-initiatives can focus the debate and better educate citizens about the specific type of reform proposed.
With a single initiative, educated voters are given only one option –change as structured by the initiative’s authors, or no change. The major benefit of the counter-initiative is that it wrests this agenda control away from a single interest group. By allowing different groups to frame the question and provide voters with alternatives, counter-initiatives provide well-informed voters with better opportunities to define their preferences.
A recurring criticism of the Taxpayers decision is that in invalidating Proposition 68 entirely, the court interfered with implementation of the will of the majority. If both Proposition 73 and Proposition 68 passed by a majority vote, shouldn’t Proposition 68 be enforced when key portions of Proposition 73 were declared unconstitutional? This reasoning ignores the fact that majorities can vary initiative by initiative. 2,720,605 citizens voted for Proposition 68. Although this figure was a majority of all of those voting on Proposition 68, it was not a majority of all voters casting ballots in the June 7, 1988 election. If the total number of voters is considered, a majority of voters either voted “No” or did not vote at all on Proposition 68. If non-votes are treated as “No” votes, it was reasonable for the Taxpayer court to assume that Proposition 68 was not supported by the majority of California voters.
The presumption of informed voters can cut both ways. Although it is generally used to uphold an initiative, the presumption supports the Taxpayer result of invalidating Proposition 68 completely. Because the campaign literature marketed the two propositions as irreconcilable alternatives and urged voters to vote for their measure and against the alternative, voters who studied and understood this literature would not have voted for both Propositions.
The assumption that a non-vote is equivalent to a “No” vote favors the status quo and seems reasonable in the context of counter-initiative interpretation. It is possible to assume that California voters simply wanted reform and voted for both Proposition 73 and 68 to achieve that end. A presumption that a non-vote is a “No” vote would penalize those voters who come to the polls simply seeking reform, but not bothering to educate themselves that one method of reform might be better than another or that the two measures had been presented as irreconcilable alternatives.
Citizens should be entitled to express such general opinions, but initiatives result in detailed and complex law. Few initiative supporters would advocate a system that produces such laws through a process of uninformed decisions based primarily on the visceral responses of impressionable voters. Manipulation then becomes a serious threat. If no initiative passes, the issue may be passed on to the legislative process where representatives can be educated on the benefits of alternatives and the result can be buffered by traditional balances.
Ballot initiative use has burgeoned in the last twenty years. Dissatisfaction with the resulting laws and campaign tactics has spurred calls for reform. Although reform may be needed, one solution — requiring a higher threshold of signatures to qualify measures for the ballot — is misguided because it restricts the use of counter-initiatives.
Counter-initiatives may have been used to manipulate voters in the past, but the opportunities for abuse come from the shortcomings of the initiative process and not from the counter-initiative itself. In fact, the use of counter-initiatives can be salutary for the initiative process.
A counter-initiative may be more cost effective than an opposition campaign. Furthermore, while the original initiative permits a single group or individual to control how an issue is to be addressed, counter-initiatives permit several groups to shape the agenda on a particular issue.
Finally, a counter-initiative’s structure or an express provision identifying conflict, may facilitate how courts resolve conflicts between alternative measures.