Legal woes beset ballot initiatives

A california supreme court's decision to overturn the most expensive ballot-initiative campaign in United States' history - an Indian gambling measure approved overwhelmingly by California voters last November - has thrown a spotlight on both the surging popularity and the perils of direct-style citizen democracy.

In recent decades, as the percentages of those who vote have declined and frustrations with the political establishment have grown, the use of ballot initiatives has increased dramatically.

In the two dozen mostly Western states that allow them, the use of such initiatives has enabled citizens to bypass legislatures and vote directly on measures put before them. A number of other states, meanwhile, are considering adopting such systems.

The initiative that the August 23 ruling struck down had been approved by 63 percent of California voters, after both sides had spent a staggering $100 million in the campaign. The court's decision shows the initiative process has its own inherent risks, beyond cost.

Courts are increasingly altering or throwing out ballot measures that bypass many checks and balances in the traditional legislative process. As a result, say initiative experts, many voters are voicing increasing frustration with ballot initiatives - a process that was itself born of frustration with politics as usual.

Proposition 5 had expanded legalized gambling on Indian reservations by permitting video slot machines and card games. Dozens of tribes backed the initiative, arguing that gambling was an important source of revenue for impoverished reservations. Tribal officials estimate that video-gambling machines generate 70 percent of the revenue at Indian casinos.

Threatened by the competition of Indian gambling, Nevada casinos mounted a costly challenge to the initiative. But the Indian tribes, which spent nearly twice as much as their opponents, convinced the voters.

Yet Proposition 5 never took effect because of two legal challenges. One was brought by a labor union and the other by a group of homeowners and businesses backed by the Nevada casinos. In a 6 to1 ruling, the California Supreme Court ruled that the initiative violated a section of the state constitution forbidding "casinos of the type currently operating in Nevada and New Jersey."

Ironically, this clause was added years ago by a separate ballot initiative that opened the way for the statewide lottery. To reassure critics at the time, proponents included language meant to guarantee that the lottery was not the first step to fully legalized gambling in the state.

Not yet over

There are a number of steps that could still ultimately lead to the kind of gambling expansion sought by the Indian tribes. Gov. Gray Davis, elected last year, has already held talks with the Indians on the possible expansion of the kinds of games allowed. The tribes had sought ballot approval only after negotiations with the previous governor had broken down.

In addition, many of the Indian tribes that backed last year's successful initiative are already gathering signatures for another run at the ballot next March. This time, they want voters to approve a ballot initiative that would amend the constitution, a costlier process than an initiative that simply enacts new legislation.

Still, many analysts wonder about a system of legislating that is increasingly colliding with the courts.

Governor Davis, for instance, has spent a fair amount of his first year extricating himself from a controversial anti-immigration ballot initiative approved by voters in 1994 but largely overturned by the courts. Davis has been caught between the will of the electorate and an initiative that the courts disallowed and he opposed. After trying a compromise that backfired, Davis let the court ruling stand.

Campaign-finance reform, approved by voters in 1996, remains in limbo because of court challenges. And even California's famous antitax Proposition 13 includes parts that were never fully implemented because of court challenges.

Problems elsewhere

In other states too, the courts have increasingly blocked ballot initiatives. There have been several high-profile and successful court challenges in Colorado against initiatives that didn't abide by the state's rule that each deal only with a single issue.

Bob Stern of the Center for Governmental Studies in Los Angeles, an organization that promotes reform of the initiative process, says that generally the courts are getting bolder in blocking ballot measures. For years, the courts treated initiatives with kid gloves, eager to avoid thwarting the will of the electorate.

Mr. Stern estimates that almost half the ballot measures approved by voters in California these days are dismantled to some degree by judges.

While court intervention is deeply frustrating to many voters, Stern says the intervention underscores some needed changes in the initiative process. His organization supports a requirement that ballot measures come before the California state legislature for hearings before they're put on the ballot.

This would give legislators an opportunity to enact a bill and avoid costly initiative wars, or at a minimum, give initiatives the kind of careful legal scrutiny that is normal for new laws. Often, fairly minor revisions could avoid court challenges, he says.

But most politicians shun tinkering with the initiative process for fear of further antagonizing voters. Meanwhile, the number of ballot initiatives and dollars spent on them are growing rapidly.

Indian supporters of the gambling initiative, for instance, are paying signature gatherers $2.50 per signature to qualify their measure for the March ballot. That may establish a new base of cost that is higher than anything seen in the past.

(c) Copyright 1999. The Christian Science Publishing Society