Wednesday, October 22, 2008

State Constitutional Law- Election Day 2008 provisions

Election day means not only voting for candidates but voting on specific provisions.  By my count, more than 35 states have ballot measures in the upcoming election.   According to the National Conference of State Legislatures, Ballot Update, as of October 15, 2008,

a total of 152 questions have qualified for statewide ballots.  59 of these are citizen initiatives -- most of the rest were referred to the ballot by state legislatures or, in the case of Florida, the state's Taxation and Budget Reform Commission.  Three are questions automatically referred by state constitutions, asking voters if they want to hold a constitutional convention.

Most of the time, the initiative or referendum process is governed by a state's constitution.  Citizen initiatives, as the name implies, are placed on the ballot after a requisite number of signatures, and would seem to be the model of direct democracy, although certainly they have been subject to criticism.

Is there a difference - - - or should there be one - - - depending on whether the citizen initiative, or the referendum  referred to the ballot by the legislature, would result in a statute or in a constitutional amendment?

Indeed, on the ballot in November in Colorado is Referendum O, referred to the ballot by the legislature, that concerns citizen initiatives and the resulting laws.  It lowers the number of signatures required when the result would be a statute and makes it more difficult for the legislature to amend that statute.  However,it would make it more difficult to amend the state constitution by increasing the number of signatures and imposing a geographical diversity requirement for signatures.   

Recall that Colorado was the source of Amendment Two, which prohibited the state from enacting any laws or policies "whereby homosexual, lesbian, or bisexual" classifications would entitle a person to make a claim of discrimination or protected status - - - the United States Supreme Court declared this provision unconstitutional under the Fourteenth Amendment's equal protection clause in Romer v. Evans, 517 U.S. 620 (1996).   And in Colorado this year, 8 of the 10 initiatives on the ballot would seek to amend the state constitution.  They include provisions that would ban affirmative action, change the definition of 'person' in the Colorado Constitution to include any fertilized egg, embryo or fetus, and prohibit automatic union dues deductions from public employee payrolls.

Interestingly, many of the otherwise excellent sources for state ballot measures do not first categorize ballot measures by whether they would result in statute or constitutional amendment.  Instead, the process by which a measure appeared on the ballot - - - citizen initiative or legislative referendum - - - is a prominent classification.   The topic of the measure is also obviously an important feature. 

Nevertheless, there are several excellent websites that will assist a Con Law Professor in keeping track of the 152 questions on the ballot in November.  In addition to National Conference of State Legislatures, Ballot Update, The Initiative and Referendum Law Institute at the University of Southern California Ballotwatch is excellent, as is the wiki ballotpedia.   Less "objective" but with a truly stellar set of maps is Ballot Initiative - - - the interactive map has pop-ups for each state and there is a set of 11 maps for download on "key" issues with great color. 

One key issue is, as in years past, is same sex-marriage.  California's Proposition 8 would change the California Constitution to eliminate the right of same-sex marriage as found by the California Supreme Court in In Re Marriage Cases, 183 P.3d 384 (Cal. 2008), by defining marriage as limited to one man and one woman.  Florida's Amendment 2 would change the Florida Constitution to define marriage as limited to one man and one woman and also provide "no other legal union that is treated as marriage or the substantial equivalent thereof shall be valid or recognized."  Arizona's Proposition 102, sponsored by the state legislature, would amend the Arizona Constitution to provide that only a union of one man and one woman be recognized. 

For Con Law and other professors, state constitutional law issues provide not only an opportunity for hypotheticals and scholarship, but also for academic activism.   The UC-Davis website has a model page offering faculty experts on five of California's ballot propositions and the initiative process itself.  What's great about this page is that it not only "lists" faculty experts, but provides their point of view.  So for example, we learn that our colleague Diane Marie Amann who teaches ConLaw at UC-Davis does not support Proposition 4 (parental notification and waiting period for minors seeking abortions) and says "contrary to the assertions of some proponents, Proposition 4 would not help prevent sexual predation" and there "is virtually nothing in the text that aims at that goal."

Unfortunately - - - or fortunately -- - here in New York, I have little chance for academic activism on  a ballot proposal.  Our sole proposal is entitled " Civil service exams" and is described as a "Legislative amendment that makes technical change in condition allowing veterans advantage in exam."  Although perhaps I should do some more research....


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