Posted June 9th, 2008 by jpritikin

There are a number of arguments which suggest that minorities need not fear a national initiative:

• Minorities are protected by the right of free speech. The voice of minorities would be greatly amplified by NCID. Citizens Legislative Procedures Act, Section 4-F-5 would empower the Citizens Trust to disseminate a balanced analysis of initiatives via all modes of communication. Listen to an introduction to deliberative polling (12m 29s) from the 2002 Democracy Symposium.
• Direct initiative has been criticized as lacking informed deliberation, consensus-building, and compromise. Typically, initiative language is finalized prior to the beginning of signature gathering. To address this weakness, NCID incorporates a deliberative committee (see Citizens Legislative Procedures Act, 3-I) charged with receiving testimony from all stakeholders and rewriting the initiative incorporating feedback and compromise.
• Miller (2002) analyzed all initiatives from 1960 to 1999 in California, Oregon, Washington, and Colorado. Miller found that the courts invalidated, in whole or in part, 28% of the initiatives approved by voters. However, initiatives affecting minorities were invalidated at a much higher rate (46%). The courts are vigilant in examining whether initiative laws comply with the 14th amendment equal protection provision.
• Every initiative has its own unique majority and minority. For example: A citizen may be in the majority on an education initiative but in the minority on an energy initiative. Most initiatives will not start with an overwhelming majority. Advocates of both sides of an initiative will attempt to appeal to the undecided and minorities. This recurring dynamic develops concern for minorities.
• The protection extended to minorities by a ruling elite minority is no more certain than the protection extended by the majority. For example, Oklahoma Initiative 10 disenfranchised black citizens in 1910, but around the same time, numerous Jim Crow laws were being enacted by legislatures. California Proposition 1 restricted the property rights of Japanese in 1920, but then during World War II, elected officials placed some 60,000 American citizens of Japanese origin in internment camps. No form of government is perfect.

Listen to Senator Mike Gravel discuss the difference between representative lawmaking and direct lawmaking (4m 34s).

A more rigorous treatment of this issue can be found in Verhulst and Nijeboer (2007), pp. 70-72 and Allen (2002), p. 2.