Editing Direct Democracy: Does Limiting the Subject Matter of Ballot Initiatives Offend the First Amendment?

Citizens of twenty-four states make law alongside their legislatures by means of the ballot initiative process. In many of these states, constitutional provisions limit the subjects open to the initiative process to insulate certain areas of governance, like taxes and appropriations, from the volatility of direct democracy. Some states have recently adopted or considered subject matter restrictions that lack this pragmatic, nonpartisan rationale. These restrictions seek to close the initiative process to certain political outcomes, signifying a possible trend toward forestalling political change—and shaping state political agendas—by redefining the subject matter bounds of state initiative processes. Litigants have challenged these restrictions on First Amendment grounds, but the circuits have disagreed on the basic question of whether subject matter restrictions implicate the First Amendment at all. This Note argues that subject matter restrictions burden expressive conduct composed of nonspeech and speech elements: respectively, lawmaking and political agenda setting through ballot qualification. Accordingly, it proposes that courts apply intermediate scrutiny to restrictions on the subject matter of initiatives, affirming those that insulate state constitutional rights but invalidating those that simply calcify the electoral gains of transient political majorities.