Using Alternative Initiatives Footnotes

[1] The initiative process often is called direct democracy, as opposed to representative democracy. Because usage is not uniform, the generic term “initiative” is used throughout this article to describe measures placed on a ballot by petition of citizens. Other terms commonly used for initiated measures, regardless of whether they are for constitutional amendment or statute, have included “ballot proposal,” “ballot measure,” “proposition,” and “plebiscite.”

[2] Proposition BB on the November 2, 1993 ballot in San Francisco.

[3] This article does not take a stand on the wisdom of initiative law-making in general. Experts before me make very persuasive arguments about the shortcomings of the initiative process. However, in the present political climate, few can argue seriously that the initiative process should be abolished. Therefore, this article will address how the existing process of introducing alternatives through counter-initiatives should provide the opportunity for more balanced results.

Because of space constraints, this article will not address one of the major criticisms of the initiative process: the tyranny of majority rule and appropriate protection and representation of minority views. For discussion on these issues, see THOMAS E. CRONIN, DIRECT DEMOCRACY: THE POLITICS OF INITIATIVE, REFERENDUM, AND RECALL (1989); DAVID B. MAGLEBY, DIRECT LEGISLATION: VOTING ON BALLOT PROPOSITIONS IN THE UNITED STATES (1984); Lynn A. Baker, Direct Democracy and Discrimination: A Public Choice Perspective , 67 CHI.-KENT L. REV. 707 (1991); Julian N. Eule, Representative Government: The People’s Choice, 67 CHI.-KENT L. REV. 777 (1991); William H. Riker, Comment on Baker, “Direct Democracy and Discrimination: A Public ChoicePerspective,” 67 CHI.-KENT L. REV. 791 (1991).

Judicial review will be addressed only as it reflects how the courts interpret conflicting provisions. For more information on why an alternative standard of review may be appropriate, refer to Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503 (1990).

4 Taxpayers To Limit Campaign Spending v. Fair Political Practices Comm’n, 799 P.2d 1220, 1236 (Cal. 1990).

5 Under either “the stringent standards ordinarily applicable to restrictions upon First Amendment rights, or the balancing test applicable to First/Fourteenth equal opportunity to engage in political activity, the fiscal year provisions of Proposition 73 must fail.” Service Employees Int’l Union v.Fair Political Practices Comm’n, 747 F. Supp. 580, 589 (E.D. Cal. 1990), aff’d, 955 F.2d 1312 (9th Cir.) and cert. denied sub nom. California Fair Political Practices Comm’n v. Service Employees Int’l Union, 112 S. Ct. 3056-57 (1992).

The fate of Proposition 73 and Proposition 68 may not yet be final. At oral argument before the California Supreme Court in November of 1993, there was some discussion of reviving Proposition 68. Todd Woody et al., Defense Faces Tough Questioning on ‘Fear of Cancer,’ THE RECORDER, Nov. 3, 1993, at 1, cited in Elizabeth M. Stein, Note, The California Constitution and the Counter-Initiative Quagmire, 21 HASTINGS CONST. L.Q. 143, 181 n.308 (1993).

[6] Proposition 128 on the November 1990 statewide ballot in California.

[7] Jorge Casuso, California gets dizzy from initiative fever, CHICAGO TRIBUNE, Sept. 30, 1990, at 1.

[8] Dan Walters, Some Initiatives Try to Confuse , L.A. DAILY J., Feb. 21, 1990, at 6.

[9] Id. Reference is to Proposition 130 on the November 1990 statewide ballot in California.

[10] Walters, supra note 8 (referring to Proposition 65 on the 1986 California ballot).

11 Id.

[12] A growing strategy is to by-pass the initiated statute process and instead introduce all initiatives as amendments to the constitution. In many states, if two initiatives pass, the initiative with the greater number of votes prevails over a conflicting initiative on the same ballot. However, because a constitutional amendment supersedes a statute, a constitutional initiative would control over a statutory one, even if the constitutional initiative passed with fewer votes.

[13] Proposition 126 on the 1990 California ballot. Legislation and amendments to be approved by the public, but which are placed on the ballot by the legislature rather than by a signature campaign of the people, are often called referenda or referendums.

[14] Taxpayers, 799 P.2d at 1246 n.1 (Mosk, J., concurring and dissenting).

[15] Hallye Jordan, Initiative Would Void Others on Ballot, Suit Says, L.A. DAILY J., June 14, 1990, at 1 (referring to court documents filed by Steven L. Mayer in Van de Kamp v. Eu available in author’s files).

[16] Thirteen citizen initiatives and four legislative measures.

[17] Proposition 140, addressing limits on terms of office
for elected officials did pass. It might be considered an alternative to
Proposition 131, which also addressed terms of office.

[18] THOMAS M. DURBIN, INITIATIVE, REFERENDUM AND RECALL: A RESUME OF STATE PROVISIONS, Report 81-63A 751/110, Congressional Research Service (1981).

[19] Arizona, Arkansas, California, Colorado, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, and South Dakota.

[20] Charles M. Price, Initiative Qualifying In The States, 1898-1989: Variations in Usage, FAMILY, LAW & DEMOCRACY REPORT (Feb. 1990). The following western states provide for constitutional amendment and statutory enactment by initiative, unless otherwise indicated. Alaska – Alaska Stat. [section] 15.45.010 to 245 (no initiative for constitutional amendments); Arizona – Ariz. Const. art. 4, pt. 1, [section] 1; art. 22, [section] 14; Ariz. Stat. [section] 19-101 to 144; California – Cal. Const. art. 2,3, 8, 10; Colorado – Colo. Const. art. 5, 1 and Colo. Rev. Stat. [section] 1-40-101 to 133 (1980 & Supp. 1993); Idaho – Idaho Code [section][section] 34-1802, 34-1804 to -1806, 34-1809, and 34-1813 (no initiative for constitutional amendments); Montana – Mont. Const. art. 3, [section] 4 and Mont. Code Ann. [section] 13-27-101, -105; Nevada – Nev. Const. art. 2, [section] 2, art. 19, [section] 2, 6 and Nev. Rev. Stat. [section][section] 295.015(2), 295.025(1), 255.035(1), 295.025(2); Oregon – Or. Const. art. 4, [section] 1 and Or. Rev. Stat. [section] 254.030; Utah – Utah Code Ann. [section][section] 20-11-2, 20-11-3, 20-11-6 (no initiative for constitutional amendments); Washington – Wash. Const. amend. 7, 26, 30 and Wash. Rev. Code [section][section] 29-79-010, -020, -120, -130 (no initiative for constitutional amendments); and Wyoming – Wyo. Const. art. 3, [section] 52 and Wyo. Stat. [section][section] 22-24-101, -103, -115, -120 (no initiative for constitutional amendments).

[21] The following midwestern states provide for constitutional amendments and statutory enactment by initiative, unless otherwise indicated. Illinois – Ill. Const. art. 14, [section] 3 (amendment of Art. IV only, statutes and referendum on public policy issues); Michigan – Mich. Const. art. 12, [section] 2, art. 2, [section] 9 and Mich. Comp. Laws [section][section] 168.471 – 472; Missouri – Mo. Const. art. 3, [section][section] 50, 51, 52 and Mo. Rev. Stat. [section] 126.051, 126.141; Nebraska – Neb. Const. art. 3, [section][section] 2, 4; North Dakota – N.D. Const. art. 105; Ohio – Ohio Const. art. 2, [section] 1 and Ohio Rev. Code Ann. [section] 2519.01 (Anderson or Baldwin 19); Oklahoma – Okla. Const. art. 5, [section][section] 2, 3; and South Dakota – S.D. Const. art. 23, [section] 1, art. 3, [section] 1 and S.D. Codified Laws Ann. [section] 2-1-1.

[22] Maine provides only for statutory enactments by initiative – Me. Const. art. IV, pt. 3, [section][section] 18, 19. Massachusetts provides for both constitutional amendment and statutory enactment by initiative – Mass. Const. amend. art. 48, Init. pt. 2, [section][section] 3, 7, Init. pt. 4, [section] 2, Init. pt. 5, [section] 1, Gen. Prov. pt. 5, Gen. Prov. pt. 6.

[23] Arkansas provides both for constitutional amendment and statutory enactment by initiative – Ark. Const. amend. 7 and Ark. Code Ann. [section] 2-208. Florida provides only for constitutional amendment by initiative – Fla. Stat. [section] 100.371.

[24] In addition, many local jurisdictions throughout the states have initiative provisions that are applicable only locally and are not addressed here.

[25] Because referenda placed on the ballot by a state or local government still require approval by the electorate and once passed are generally treated the same as initiated measures, in this article no emphasis will be placed on the distinction between referenda and citizen initiatives when discussing the impact of alternative or counter-initiative measures.

[26] Inaugural Address of Governor Hiram Johnson, reprinted in F. HICHBORN, THE STORY OF THE SESSION OF THE CALIFORNIA LEGISLATURE OF 1911, ii-iii app. (1911) cited in James E. Castello, Note, The Limits of Popular Sovereignty: Using the Initiative Power To Control Legislative Procedure, 74 CAL. L. REV. 491, 503 n.60 (1986). See also Charles M. Price, Initiative Qualifying In The States, 1898 – 1989: Variations in Usage, FAMILY, LAW & DEMOCRACY REPORT 4-5 (Feb. 1990) (“When the initiative process was added to the California Constitution in 1911, it was intended as a political tool to pry the state government from the grips of a monopoly, the Southern Pacific Railroad. But now many political experts maintain it is the initiative [process itself] that erodes state government.”).

[27] Price, supra note 26.

[28] Jorge Casuso, California gets dizzy from initiative fever, CHICAGO TRIBUNE, Sept. 30, 1990, at C1.

[29] Id.

[30] States that provide for both the statutory and constitutional amendment initiative tend to have more initiative activity than states that provide for only one or the other. All of the top five provide for both. Price, supra note 26.

[31] Id.

[32] In 1914, California voters were also asked to approve 11 bond measures placed by the Legislature on the ballot. This is testimony to the heavy use of initiatives in their early years.

[33] Aaron Wildavsky, Representative vs. Direct Democracy: Excessive Initiatives, Too Short Terms, Too Little Respect for Politics and Politicians, 2:3 THE RESPONSIVE COMMUNITY 31, 33 (Summer 1992).

[34] Calfarm Insurance Co. v. Deukmejian, 771 P.2d 1247 (Cal. 1989). See also Taking All Too Much Initiative; Government By the People? Or By Judges?, LOS ANGELES TIMES, Sept. 27, 1990, at B6.

[35] Information prepared by the Colorado Legislative Council Staff as of April 1992 did not indicate whether some of the 1912 amendments may have been referred by the legislature. The second highest number of constitutional amendments on the ballot in Colorado was nine in 1974.

[36] Petitions Everywhere, BOULDER DAILY CAMERA, May 27, 1992, at 8A (Editorial) (“As the number of initiatives grows, so does the potential for confusion. The time to start minimizing the confusion is now, during the petition season. The people can keep the number of ballot initiatives under control by declining to sign any petition merely because the idea ‘sounds interesting,’ because its backers claim ‘a right to put their ideas on the ballot,’ or for any other reason other than a belief in the proposal itself.”).

[37] “Many voters are disaffected by the Legislature, too, which is why groups resort to initiatives in the first place.” Gordon E. Baker, a political scientist at the University of California in Santa Barbara.

“Kelly Kimball, president of Kimball Petition Management in Los Angeles, which has made a tidy profit by charging industry groups and other special interests from 70 cents to $1.50 a head to gather signatures on all manner of measures, said: ‘The initiative process is not there because the legislators are doing their jobs. If they were doing what they were supposed to do, I would be out of business.'” Robert Reinhold, Ballot Becomes a Burden in California, N.Y. TIMES, Sept. 24, 1990, at A16.

However, following the November 1990 ballot sporting thirteen initiated measures, a L.A. Times Poll found that “more than seven in ten Californians think the initiative process has ‘gone out of control.'” Initiatives: The Monster That Threatens California Politics; Out of Control, the Process Itself Now Needs to be Reformed, L.A. TIMES, Nov. 12, 1990, at B4.

[38] “There is no clear support for restricting the number of initiatives on the ballot, increasing the signature threshold, or prohibiting the use of paid signature gatherers.” p. 462 & 464 [reference?]

[39] Amy Downs, Citizen Democracy, Citizen Sponsored Initiatives: Filling The Legislative Vacuum On Discrimination Issues, NATIONAL CIVIC REVIEW 413, 413 (Fall 1991).

[40] Petitions, supra note 36.

[41] Bill Hornby, Lending a hand in running a democracy, THE DENVER POST, ?date, discussing Thomas Cronin and Robert D. Loevy, COLORADO POLITICS AND GOVERNMENT: GOVERNING THE CENTENNIAL STATE (University of Nebraska Press – due out in spring 1993?)

[42] This article will not attempt to address comprehensibly the need for reform. As some of the anecdotes included in this article indicate, the initiative process and the use of counter-initiatives have been subject to manipulation and abuse. However, to discuss theory, this article will presume, as do the courts, that voters know what they are voting for. Some reforms — e.g., those focused on disclosure requirements — may make this assumption a reality.

[43] In 1993, the Colorado legislature amended Colo. Rev. Stat. [section] 1-40-109 (formerly [section] 1-40-105) (Supp. 1993). The amended statute requires signatures from eight percent of the legal voters to qualify a petition for the ballot. The previous version of the statute only required signatures from five percent of voters who cast votes at the preceding election (Supp. 1992).

[44] Reinhold, supra note 37 (quoting Eugene C. Lee, political scientist at the University of California at Berkeley).

[45] Pacific State Telephone and Telegraph Co. v. Oregon, 223 U.S. 118 (1912). The Court concluded that the initiative process was simply a form of government in addition to the republican form, and it neither eliminated nor superseded the representative process.


[47] Eule, supra note 3 at 1546.

[48] Fischer, 41 HASTINGS at 88. [check] “Judicial acceptance of ballot propositions has been essentially unquestioning and laudatory of the process.” Fischer p. 68 “[I]t is ‘the duty of the courts to jealously guard this right of the people. . . [I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.” Associated Home Builders v. Livermore, 557 P.2d 473, 477 (Cal. 1976).

But c.f. City and County of San Francisco v. Farrell, 648 P.2d 935 (Cal. 1982) (The California Supreme Court narrowly interpreted Proposition 13, the Harvis-Gann Initiative, to only a limited class of taxes and sharply reduced the effectiveness of the requirement that the taxes be approved by a two-thirds majority.). People v. Superior Court (Engert), 647 P.2d 76 (Cal. 1982) (Ballot initiative setting aside a case that invalidated the death penalty was not controlling.).

[49] E.g., Legislature of the State of California v. Deukmejian, 35 Cal. 3d 658, 683 (1983) (Richardson, J., dissenting).

[50] At one time, article 6, section 1 of the Colorado Constitution restricted the ability of lower courts in Colorado to invalidate initiatives. Although this Colorado provision is no longer in effect, the Nevada Constitution still contains such a restriction. NEV. CONST. art. XIX, [section] 1, cl. 2. Nevada courts, however, have not considered this provision a bar of their ability to review initiatives. Eule, supra note 3, at 1546 n. 184.

[51] See generally Eule, supra note 3.

[52] Legislature of the State of California v. Deukmejian, 34 Cal. 3d 658, 683 (1983) (Richardson, J., dissenting) (initiatives entitled to “very special and very favored treatment”) (emphasis in original); James v. Valiterra, 402 U.S. 137, 141 (1971) (provisions for referenda demonstrate “devotion to democracy”).

[53] Donald S. Greenberg, The Scope of the Initiative and Referendum in California, 54 CALIF. L. REV. 1717, 1747-48 (1966).

[54] Nordlinger v. Hahn, 112 S. Ct. 2326 (1992). See also Amador Valley Joint Union High School Dist. v. State Board of Equalization, 22 Cal. 3d 208, 259 (1978) (“It is our solemn duty to ‘jealously guard’ the initiative process, it being ‘one of the precious rights of our democratic process'”).

[55] A rare alternative view was taken in Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 295 (1981) (“In the courts’ view, it is irrelevant whether a law is enacted by a legislative body or by the people. Voters have no more right to violate the constitution than does a legislative body.”).

[56] Severability clauses are inserted in anticipation of litigation. “Senate President Pro Tempore David Roberti, however, tried to negate the use of severability clauses in initiatives. He introduced a constitutional amendment which, among other things, prohibited severability clauses in initiatives (Senate Constitutional Amendment 9, 1991). This proposal would have meant that if any part of an initiative were declared unconstitutional by the courts, the entire initiative would be invalid. Roberti dropped this provision from the measure.” DEMOCRACY BY INITIATIVE, supra note 46 at 302 n. 6.

[57] See Chemical Specialties Mfrs. Ass’n v. Deukmejian, 227 Cal. App. 3d 663 (1991) (Prop. 105, passed in November 1988, required disclosures in a number of unrelated areas, thus it was considered in violation of California’s single-subject rule); see also Taxpayers To Limit Campaign Spending v. Fair Political Practices Comm’n, 799 P.2d 1220 (Cal. 1990); Estate of Gibson v. Bird, 139 Cal. App. 3d 733 (1983).

[58] Estate of Gibson (Prop. 5 passed in June 1982, was invalidated because its dates of effect for repealing the gift and inheritance tax conflicted with Prop. 6) and Taxpayers (Prop. 68, passed in June 1988, was invalidated because it established a comprehensive campaign finance system in conflict with Prop. 73).

[59] See, e.g., Walker v. State Bd. of Elections, 359 N.E. 2d 113 (Ill. 1976) (courts will favor a construction that will render every provision operative); De’sha v. Reed, 572 P.2d 821 (Colo. 1977) (each word should be given proper effect and as far as possible each provision must be harmonized with every other).

[60] The Supreme Court of Michigan rejected an argument that an initiated proposal was on a “higher plane” than a conflicting proposal submitted to voters by the legislature. The legislative proposal received the highest number of affirmative votes, and therefore prevailed. In re Proposals D & H, 339 N.W.2d 848 (Mich. 1983).

[61] Sanford v. Garamendi, 284 Cal. Rptr. 897 (Cal. Ct. App. 1991).

[62] In re Martin, 245 S.E.2d 766 (N.C. 1978).

[63] The “standard rules of statutory construction . . . requiring that statutes be harmonized wherever possible, should not apply to initiatives because initiatives do not go through the same legislative compromise process of hearings and debates as do statutes and other legislation. . . . [U]nlike the initiative process, conflicting statutes are not passed simultaneously by the legislature. . . .” Note, supra note 5 at 174, citing Brief Amicus Curiae of California Teachers Association in Taxpayers, supra note (No. S-012016).

[64] State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139 (W. Va. 1988).

[65] State ex rel. Kanawha County Bldg. Comm’n v. Paterno, 233 S.E.2d 332 (W. Va. 1977).

[66] Floridians Against Casino Takeover v. Let’s help Florida, 363 So. 2d 337 (Fla. 1978)(disapproving/reversing Weber v. Smathers, 338 So. 2d 819). See also Union Electric Co. v. Kirkpatrick, 678 S.W. 2d 402 (Mo. 1984)(if initiated law conflicts with a constitutional provision, if adopted it becomes a law subject to constitutional challenge).

[67] See infra notes 74-79 and accompanying text.

[68] E.g., in 1988 the Washington state legislature used this method to propose an alternative to a toxics initiative. The citizen initiative polled more votes. DEMOCRACY BY INITIATIVE at 310.

[69] ME. REV. STAT. ANN.

[70] Arizona, Arkansas, California, Colorado, Idaho, Massachusetts, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Utah, and Washington.

[71] In State ex rel. Nelson v. Jordan, 450 P.2d 383 (Ariz. 1969), voters approved two propositions placed on the ballot by the legislature. One measure increased the term of all statewide officials, including the state auditor. The other measure, approved by approximately 60,000 fewer votes, abolished the office of state auditor. The court found that “where two provisions of the constitution are in conflict, it is the duty of the court to harmonize both so that the constitution is a consistent workable whole.” Id. at 386. The court thus held that the state auditor’s office was abolished and that the terms for all other statewide officers were increased.

[72] City of Glendale v. Buchanan, 578 P.2d 221 (Colo. 1978). “Every reasonable presumption is to be indulged in favor of a constitutional amendment which the people have adopted at a general election.” Id. at 224.

[73] Robert G. Stewart, The Law of Initiative Referendum in Massachusetts, 12 NEW ENG. L. REV. 455, 501 (1977).

74 355 N.E.2d 806 (Mass. 1976).

[75] In this system only one of the two measures can be enacted. Stewart, supra note 73 (citing MASS. CONST. amend. XLVIII and LEGISLATIVE RESEARCH COUNCIL, REPORT RELATIVE TO REVISING STATEWIDE INITIATIVE AND REFERENDUM PROVISIONS OF THE MASSACHUSETTS CONSTITUTION, H.5435 at 88-89 (1975)).

[76]Stewart, supra note 73 at 500 (citing 2 DEBATES IN THE MASSACHUSETTS CONSTITUTIONAL CONVENTION OF 1917-1918).

[77] Buckley, 355 N.E.2d at 809.

[78] Id. at 811.

[79] Id.

[80] In re Interrogatories Propounded by the Senate Concerning House Bill 1078, 536 P.2d 308, 313 (Colo. 1975).

[81] Id. at 320.

82 543 P.2d 731 (Alaska 1975).

[83] ALASKA CONST. art. XI, [section] 4 and ALASKA STAT. [section] 15.45.210.

[84] Warren, 543 P.2d at 737.

[85] Id. at 739.

[86] Id.

87 799 P.2d 1220 (Cal. 1990).

[88] Id. at 1221.

89 852 P.2d 1 (Colo. 1993).

[90] Id. at 6.

[91] Id. at 8-9.

[92] Id. at 10-11.

[93] Id. In his dissent, Justice Vollock notes that the “overriding concern” should be to “ensure that the will of the People would be manifested.” Id. at 21. Based on the plain language of the amendments “considered against the backdrop of their accompanying ballot titles,” Justice Vollock concludes that the amendments are “mutually exclusive” and it is just the majority’s interpretation of the amendment that creates implicit conflict. Id. at 14 of dissent.

[94] See, e.g., Concerned Citizens v. City of Carlsbad, 204 Cal. App. 3d 937 (1988)[check case].

[95] Van de Kamp v. Eu (Cal. Sup. Ct. Case No. S016240). Briefs of the parties are available in the author’s files.

[96] Taxpayers, 799 P.2d at 1246 n.1 (Mosk, J., concurring and dissenting).

[97]Conflicting Law. Pursuant to Article II, sec. 10(b) of the California Constitution, if this measure and another measure appear on the same ballot and conflict, and this measure receives more affirmative votes than such other measure, this measure shall become effective and control in its entirety and said other measure shall be null and void and without effect. If the constitutional amendments contained in this measure conflict with statutory provisions of another measure on the same ballot, the constitutional provisions of this measure shall become effective and control in their entirety and said other measure shall be null and void and without effect irrespective of the margins of approval. This initiative is inconsistent with any other initiative on the same ballot that enacts any tax, that employs a method of computation, or that contains a rate not authorized by this measure, and any such other measure shall be null and void and without effect.”

[98] Proposition 136’s conflict provision could have nullified Proposition 128 (“Big Green”, an environmental measure), Proposition 129 (comprehensive crime control), Proposition 133 (safe streets), and Proposition 134 (consumer-backed nickel-a-drink liquor tax), even though there was no substantive conflict between the majority of the provisions of these measures and those of Proposition 136.

[99] Van de Kamp v. Eu briefs. Brief of opponents at 22 (“No purpose relevant to [Prop. 136] is served by invalidating all substantive provisions of ‘conflicting’ measures.”).

[100] Lenny Goldberg, campaign director for Californians Against Initiative Fraud, an anti-Proposition 136 organization, said Proposition 136 had collected $5 million from alcohol and tobacco industries seeking to defeat a competing nickel-a-drink initiative. Hallye Jordan, Proposition 136 Would Sabotage Tax Hikes Contained in Other Initiatives on the Ballot, 103 L.A. DAILY J., Oct. 31, 1990, at 11, col. 1.

[101] In the November 1992 election in Colorado, a similar “winner-take-all” provision was included in a Colorado Association of Commerce and Industry (CACI) petition for a ballot measure introduced as an alternative to Douglas Bruce’s “Taxpayer’s Bill of Rights” (Amendment 1). In contrast to Proposition 136, section 9 of the CACI initiative attempted to nullify a narrow range of initiatives by deeming only other measures “limiting governmental taxes, revenues, appropriations, or expenditures. . . .” to be in conflict. Although Bruce’s Amendment 1 was adopted by voters, the conflict provisions in the CACI initiative were never put to the test because the CACI measure did not garner enough signatures to be placed on the ballot.

[102] Ark. Const. amend. 7; Mich. Const. art. 2, [section] 9; Mo. Const. art. 3, [section] 51; Neb. Const. art III, [section]   ; Nev. Const. art. 19, [section] 2, [paragraph] 3.2; N.D. Const. art. III, [section] 8; Ohio Const. art. II, [section] 1(b); Utah Code Ann. [section] 20-11-20 (1987).

[103] CALIFORNIA COMM’N ON CAMPAIGN FIN., supra note 46.

[104] Ariz. Const. art. 4, Pt. 1, [section] 12; Colo. Rev. Stat. [section] 1-40-123 (Supp?) (# changed by SB93-135 effective 5/4/93) (formerly [section] 1-40-113 not 116, which applies to ordinances) (“[I]n case of adoption of conflicting provisions, the one which receives the greatest number of affirmative votes shall prevail in all particulars as to which there is a conflict.”); Idaho Code 0167 34-1811 (1981); Mass. Const. art. 48, Pt. 6, [section] VI; Neb. Const. art. III, [section] 2.

[105] In re Initiative Petition No. 314, 625 P.2d 595 (Okla. 1980) (provisions of constitution on same question should be construed together and harmonized with each other so far as possible); McCarney v. Meier, 286 N.W.2d 780 (N.D. 1979) (court must give effect to every provision and reconcile apparent inconsistent provisions); County Commissioners v. Oakland County Executive, 296 N.W. 2d 621 (Mich. App. 1980) (provisions relating to same subject matter must be read as a whole, in context, with an eye to harmonize them and give effect to all). DEMOCRACY BY INITIATIVE at 310.

106 189 Cal. Rptr 201 (1983).

107 799 P.2d 1220 (Cal. 1991).

[108] Section 10(b) provides that “those of the measure receiving the highest affirmative vote shall prevail.” CAL. CONST. [section] 10(b). The Taxpayers court acknowledged “those” could refer only to conflicting provisions and the non-conflicting provisions could be harmonized. Instead, the court determined that in a fundamental conflict, those would include all provisions (i.e., the entire measure) receiving the highest affirmative vote, and the entire measure would prevail over the counter-measure. Taxpayers, 799 P.2d at 1233-34.

[109] “In these circumstances, to patch together the nonconflicting provisions of measures that were expressly offered in opposition to each other would usurp the legislative role, creating, in the worst scenario, a Frankenstein’s monster whose existence the voters never contemplated.” Taxpayers, 799 P.2d at 1245 (Mosk, J., concurring and dissenting).

[110] Id. at 1233.

[111] Id. at 1234-35.

[112] Id. at 1235.

[113] The Taxpayer court noted:

“It does not follow that these voters attempted to analyze the measures to
ascertain which provisions conflicted, understood that the scheme ultimately
operative would be an amalgam comprised of provisions of both, or anticipated
the results that the Court of Appeal and the FPPC reached. . . . The obstacles
and uncertainties facing a court when called upon to reconcile provisions of
competing initiative measures are illustrated by the divergent conclusions.”
Id. at 1229-30.

[114] Id. at 1236.

[115] Id.

[116] Id.

[117] People v. Cortez, 6 Cal. App. 4th 1202; People v. Otto, 4 Cal. App. 4th 1642 (1991); People v. Barrow, 233 Cal. App. 3d 721 (1991).

[118] The conflict between Proposition 4 on the 1982 ballot, dealing with the requirements for obtaining bail, and Proposition 8 in the same election, characterized as a victims bill of rights, were minor.

119 Yoshisato v. Superior Court (People), 831 P.2d 327 (Cal. 1992) (complementary or supplementary measures should be compared division by division for purposes of determining conflicts).

[120] Proposition 114 received the most votes in the June 1990 election and expanded the definition of “peace officers” for purposes of death penalty sentencing. Proposition 115 was a comprehensive criminal justice reform package designed to speed and streamline criminal convictions.

[121] Id. at 333.

[122] Id. at 333-34.


[124] Even so simple a decision as recognition of the Martin Luther King Holiday in Arizona provided more than a yes-no choice. On the 1990 ballot, electors were given two alternative initiatives from which to choose. One would have recognized Martin Luther King’s birthday as a state holiday in lieu of Columbus Day, the other would have holidays for both King’s birthday and Columbus Day. Both initiatives were defeated.

[125] “Condorcet demonstrated that for any set of voting choices, alternative outcomes would emerge depending on how the choices were presented to the voters. Arrow generalized this finding to be a fundamental problem of all collective decisionmaking. . . .” Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2129-35 (1990).

[126] KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d. ed. 1963). “No method of voting can avoid the possibility of such paradoxical results.” Farber & Frickey, 65 TEX. L. REV. at 902.

[127] William H. Panning, Formal Models of Legislative Processes, in GERHARD LOEWENBERG, SAMUEL C. PATTERSON, MALCOLM E. JEWELL, HANDBOOK OF LEGISLATIVE RESEARCH 673 (1985).

[128] KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963) “In theoretically searching for democratic procedures that would aggregate the given preferences of individuals into a single collective outcome, Arrow discovered that the paradox turns out to be an inescapable feature of any decision-making process likely to be considered even minimally fair.” Slinging Arrows, supra note __ at 2131.

[129] The following is a simple example of Arrow’s theorem as presented in Daniel A. Farber and Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873, 902 and n. 172 (1987):

“[A]ssume that three children — Alice, Bobby, and Cindy — have been pestering their parents for a pet. The parents agree that the children may vote to have a dog, a parrot, or a cat. Suppose each child’s order of pet preferences is as follows: Alice — dog, parrot, cat; Bobby — parrot, cat, dog; Cindy — cat, dog, parrot. In this situation, if pairwise voting is required, then majority voting cannot pick a pet. . . . A majority (Alice and Cindy) will vote for a dog rather than a parrot; a majority (Alice and Bobby) will vote for a parrot rather than a cat; and a majority (Bobby and Cindy) will vote for a cat rather than a dog.”

[130] Panning, supra note 127 at 674-75.

[131] “One of the implications of Arrow is the difficulty of even discerning majority preferences, let alone constructing a democratic theory based on the presumed inviolability of such preferences as revealed through elections. . . .[In some instances the theory] denies the presumptive legitimacy accorded to majoritarian outcomes . . . .[and raises] skepticism about whether any true majority preference may exist.” Issacharoff at 1882.

[132] Issacharoff at 1881.

[133] Hovenkamp at 92. Hovenkamp expands the Farber & Frickey pet scenario and illustrates how voting order and weight of votes will determine the choice of pet.

[134] Expanding the Farber & Frickey pet scenario shows how presentation of a ballot initiative can distort the outcome. The initiative could be drafted to provide the children would get a dog. Alice would vote “yes” because the dog was her first choice. Bobby and Cindy might vote “no” because the dog was not their first choice of pet, or they might vote “yes” simply because they wanted some pet and the dog initiative was the only choice available. In either event, Bobby and Cindy’s true choice is not reflected by the outcome of the vote.

[135] “Public choice . . .[is] simply the application of economics to political science. The methodology of public choice is that of economics, however. The basic behavioral postulate of public choice, as for economics, is that man is an egoistic, rational, utility maximizer.” D. MUELLER, PUBLIC CHOICE (1979)(cited in Farber & Frickey, 65 TEX. L. REV. at 878).

[136] Hovenkamp at 86.

[137] “The true insight of public choice theory concerns the advantage a well-organized, discrete, and insular minority will hold when faced with opposition of less intensity by a diffuse and amorphous majority.” Issacharoff, Polarized Voting and the Political Process: The Transformation of Voting Rights Jurisprudence, 90 MICH. L. REV. 1833, 1888 (1992).


[139] Under the aegis of “tax limitation” and “The Taxpayer’s Bill of Rights,” author of Amendment 1 in the November 1992 election in Colorado, Douglas Bruce, a real estate investor, wrote in private perks such as prohibitions on all “new or increased transfer tax rates on real property” and on any new state property tax. In order to collect these taxes in the future, governmental entities will have the double burden of asking voters both to ratify a new tax and to rescind parts of Amendment 1, which is now part of the Colorado Constitution. Dale Oesterle, Bruce wrote mischief into Amendment 1, THE BOULDER DAILY CAMERA (November 28, 1992).

[140141] Landes & Posner, The Independent Judiciary in an Interest Group Perspective, 18 J. L. & ECON. 875, 877 (1975).

[142] Legislator’s “single minded [focus on] reelection” requires a “responsiveness to broad constituencies . . . and helps ameliorate the influence of special interests.” D. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION at 5 (1974)(cited in Farber & Frickey, 65 TEX. L. REV. 888,889).


[144] Larry L. Berg & C.B. Holman, The Initiative Process and its Declining Agenda-setting Value, 11 LAW & POLICY 451 (1989).

[145] Berg & Holman at 451.

[146] Colorado Secretary of State Natalie Meyer, quoted in Mike McGrath, Sign of the Times, WESTWORD at 12 (June 10-16, 1992).

147 486 U.S. 414 (1988). The United States Supreme Court struck down, as unconstitutional, a Colorado statute that made paying petition circulators illegal in Colorado.

[148] Five measures in the 1990 general election had total contributions of over ten million dollars. Even at one million dollars, introducing a new initiative may be more cost effective than spending ten to twenty million dollars in contributions to advertise to defeat a measure. CALIFORNIA COMM’N ON CAMPAIGN FIN., supra note 44, at 266 Table 8.2, 270-71.

[149 150] MAGLEBY referenced in 105 L.A.D.J. p. 6 col. 6 (Jan. 14, 1992)

[151] Daniel H. Lowenstein, Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amendment, 29 U.C.L.A. L. REV. 506 (1982).

[152] Id. at ___.

[153] Berg & Holman at 465.

[154] Note supra at note 6, DEMOCRACY BY INITIATIVE, supra at note 46.

[155] CALIF.

[156] Note

[157] San Francisco Proposition O.

[158] Eule, supra note __, at 1571.


[160] Magleby

[161] Eule, supra note ___, at 1571 (addressing Proposition 103, the complex automobile insurance initiative supported by Ralph Nadar in the 198 statewide election in California).

[162] In some instances, e.g., Proposition on the 1990 California ballot, the wording of a counter-initiative is identical in parts with that of the original initiative. Rather than an attempt to obfuscate, this strategy can simplify interpretation of the initiatives. First, it aids a court’s determination that the two initiatives present separate comprehensive regulatory schemes. Second, the distinctions between alternative proposals can be highlighted by focusing on how the language differs in key parts.

[163] In digital recording, each note is achieved by a binary computer choice. If only one choice is provided, the sound is distorted and incomplete. As the number of choices is increased, a finer and finer resolution is achieved.

[164] CALIF. COMM’N, Note.

[165] In this way, a majority vote on an initiative is distinguishable from a legislative majority. In any given legislative session, a majority must be crafted from the same assembly. Bills are passed sequentially, and the same body is presumed to have been informed of and voted on the same measures. In contrast, initiative majorities can consist of totally different voters. Unless a supermajority is required, a non-vote reduces the total pool and permits uncontested initiatives to be enacted into law by a very small plurality of voters. CALIF. COMM’N ON CAMPAIGN FIN., supra note ___, at 253. Thus, it would be possible, as may be the case in Taxpayers, to have two competing initiatives pass by a majority of those voting on the initiatives with little or no overlap in the pool of voters from which the majority is derived.

[166] Taxpayers

[167] The _____ reported that 6,037,468 voters cast ballots in the June 7, 1988 election.

[168] In fact 2,720,605 is only 45% of the total number of votes cast.

[169] A frequent phenomenon in initiative voting is voter ___ Magleby. By failing to vote either “Yes” or “No” on a measure, voters express no opinion at all.

[170] Proposition 68 campaigns urged against voting for Proposition 73, labeling it a “trick to defeat the ‘real’ campaign reform.”

Taxpayers at 1229.

[171] In choosing between alternatives voters could register preferences by “bullet voting” or voting for only the initiatives for which they felt strongly. Generally, this would consolidate more votes on the initiative favored by most voters. Only if voters divided “Yes” votes between similar measures and failed to vote “No” on the opposing measure could a true majority be diluted sufficiently to prevent the measure not supported by the majority to prevail. In this instance, the opposing measures might have more votes than the two similar measures if their votes were combined.

[172] Similarly, voters may want tax reform and will vote yes for any tax reform initiative rather than choosing no reform at all.

[173] “Marat we’re poor and the poor stay poor
Marat don’t make us want any more
We want our rights and we don’t care how
We want our Revolution NOW”
PETER WEISS, MARAT SADE 57 (1970) (punctuation as in original).

[174] Counter-initiatives might also put voters on notice when they are not informed. More than 10% of voters who went to the polls in California on November __, 1990 didn’t even bother to vote on any of the record number of propositions. June ballot, 105 L.A. DAILY J., Jan. 14, 1992, p. 6, col. 6. Furthermore, the number of initiatives has dropped on future California ballots and there were none on the June 1992 ballot, a first since June 1964, before initiatives resurged.

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