Defining Democracy

Passing referenda on issues from taxes to car insurance, racial preferences to welfare benefits for immigrants, California is the land of the ballot initiative. But it has also become the home of the constitutional challenge, as opponents of successful initiatives rush to the courthouse to test the legality of any voter measure the moment it passes. Provisions of Proposition 187, the immigration referendum that passed in 1994, remain tied up in a trial court. And last year's California Civil Rights Initiative may also face years of litigious delays.

Rep. Sonny Bono (R-Calif.), the only non-lawyer on the House Judiciary Committee, wants to discourage those who would use the courts to block the implementation of an initiative simply because they backed the losing side. For the second consecutive session of Congress, Bono has introduced HR 1170, the State Initiative Fairness Act.

Following the same procedure used to review challenges to the Voting Rights Act, Bono's bill would require federal courts to set up a three-judge panel to decide any constitutional challenge to a statewide initiative. At least one of the judges must sit on an appellate court. Requiring three judges rather than one to initially rule on the constitutionality of a referendum should curtail "judge shopping." Opponents today often find a sympathetic trial judge who, by issuing restraining orders or using other legal mechanisms, can leave the fate of an initiative in limbo for years. Another provision of the bill would require any appeal of the initial panel's decision to go directly before the U.S. Supreme Court.

Bono's bill passed the House by a healthy 266-159 margin last session but was never scheduled for a Senate vote. Bono is talking with several members of the Senate Judiciary Committee, hoping one of them will sponsor this bill.