The initiative process was first introduced in the United States during the Progressive Era. It has now been adopted in various forms by 24 states and numerous local governments. Although the rules vary state-by-state, the initiative process generally allows citizens to bypass their elected representatives, propose laws, place them on the ballot, and enact them at the polls by simple majority vote.
Initiative use has varied over time and between states. After a flurry of activity in the early twentieth century, initiative use declined at mid-century, then experienced a dramatic resurgence beginning in the 1970s.
Initiative use has also varied across states. Over time, five states, California, Oregon, Washington, Colorado, and Arizona have emerged as the strongest initiative states—the places where the initiative process has had its greatest impact. But initiative use has expanded in other states, as well.
Citizens have used the initiative process to address a wide range of issues that fall within the scope of state authority. The issues have tended to cluster within several subject areas. The database categorizes them as follows:
1. Political and government reform
2. Health, welfare and morals
3. Economic regulation
4. Environment
5. Tax
6. Criminal procedure and punishment
7. Education
The database details these patterns by categorizing voter-approved initiatives by state, year, and subject matter.
Initiative Litigation
The second element of this database is post-election initiative litigation. Many initiatives are challenged after the election in either state or federal court—or sometimes both—and many are invalidated either in part or in their entirety. The database provides comprehensive information on initiative litigation in the five strongest initiative states (CA, OR, WA, CO, and AZ). Our research is continuing on initiative litigation in the other initiative states.
The data from the strongest initiative states confirm that courts have exercised an extremely powerful and important check on the initiative process. For example, over 60 percent of all initiatives adopted by voters during the 1990s in the five strongest initiative states were challenged after the election, and over 30 percent of all of the voter-approved initiatives were invalidated in part or in their entirety. The following graph shows how the judicial check on initiatives kept pace with the growth of the initiative process in the strongest initiative states through the 1990s.
Our research indicates that courts have exercised a comparable check on initiatives in several other initiative states, including Arkansas, Alaska, and Massachusetts.
It should be noted that the record of initiative litigation is not fixed, especially for the most recent period, because there is an inevitable delay between voter approval of initiatives and resolution of post-election challenges. The record remains particularly unsettled for initiatives enacted after 2000 because many challenges to initiatives adopted during this period remain unresolved and others will likely emerge as new legal theories develop.
For more information on the database, contact Ken Miller at kmiller@cmc.edu