Did SCOTUS save the initiative?

For about the last century, Californians have used the initiative process to enable the public to enact laws and Constitutional amendments that the Legislature either disapproved of or did not wish to pursue. The concept of such a form of participant democracy was necessary because the early 20th Century politicians were in the back pocket of, specifically, the heavily financed railroad and banking interests that dominated the state since its founding during the Gold Rush.

Many of these ideas have been half-baked. (To be honest, some weren’t even a quarter baked.) However, on occasion, the people got it right. One of those was one to change the way Congressional, as well as State Senate and Assembly, district boundaries were designed.

Until 2010, the job was left to the Legislature, where gerrymandering was the modus operandi. The majority party, assuming they had a Governor of the same, designed the districts. (After the 1990 census, with a Republican Governor and Democratic Legislature, the courts ultimately had to make the call.) In fact, the wheeling and dealing often including retaining safe districts for sitting members, even if in the other party, as a way to curry favor on future legislation.

For the 2010 census, an initiative had created a non-partisan citizen’s commission to determine district lines. To all observation, they did an excellent job. The lines were logical and did their utmost to keep from cutting cities in two (or three) as well as joining together communities with similarities of interest, such as coastal concerns.

California was not alone. Arizona and about 11 other states have some form of such a commission. It was the Arizona one that became the Supreme Court test case when their State Legislature sued the people of the state for creating such a Commission by initiative. They believed the U. S. Constitution required that Legislatures do the work of creating Congressional districts.

Today, the U. S. Supreme Court said no in a 5–4 decision. But, as importantly, they affirmed that the initiative process is the equivalent of legislation. Justice Ginsburg, writing for the majority, said, “The animating principle of our Constitution is that the people themselves are the originating source of all the powers of government.” This is a powerful endorsement of this method of lawmaking.

The initiative has a long history of producing some bad (OK, horrendous) law. But, that isn’t the point here. This ruling supports the long-held belief that the people have the right to circumvent to legislative process when it is necessary and appropriate.

The process isn’t perfect, particularly regarding the number of signatures required, how they are obtained, who is paying to obtain them and how (whether?) the supporters need to be displayed to the public. But, those are subjects for each state to determine. The overriding statement by the court is that laws made in that way are the same as if they were produced by the Legislature.

The people are a Legislature. It is sometimes hard for those sitting in the “seats of power” to understand that.


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