Arizona v. Arizona

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14 Responses

  1. Avatar Stillwater says:

    Good post. And I share the view expressed in your final sentence. For example, given the AvA decision, it seems to me that the Hick! case takes on added urgency since a ruling against Hick! (that is, one that accords the citizenry the power to impose tax policy on the legislature) implies that a citizen initiative completely eliminating state taxes could hold sway in the initiated state. Now, I’m sure that the Justices are clever enough to see these types of logical entailments and the problems that potentiality presents. But where will they draw the line? And on what grounds?

    Seems to me that the majority’s argument here (I’ve only read snippets, tho) is akin to a “facts to fit the theory” situation. Gerrymandering is grotesque and arguably anti-democratic. The majority found a (rather crappy!) argument to fit their preferred outcome. And Roberts is right about the semantic trickeration employed.Report

  2. Avatar Stillwater says:

    Justice Thomas wrote his own dissent, joined by Justice Scalia, in which he mostly whined about the majority showing such great deference to the states and initiatives in this case but not showing the same deference with respect to same-sex marriage in Obergefell v. Hodges.

    Now I have to read that dissent! Mostly to figure out if your short summary is actually right, since I find it remarkable that an intelligent person could actually make that argument given the radical differences between the two cases.Report

    • Avatar Stillwater says:

      Ahh. OK. He’s railing against the purported sincerity expressed by the majority re: the glories of ballot initiatives. He’s got a point there, actually.Report

  3. Avatar Oscar Gordon says:

    While I’m generally in favor of citizen initiatives, and I’m pleased with the result that ended gerrymandering in one more state, I can see the problem such things represent.

    In the Hick case, and cases like it, just initiatives are, to me, a way for the electorate to send a clear message to the legislature that they have lost the consent of the governed in this aspect. They’ve lost the trust placed in them as a whole (rather than in any individual), and/or they’ve demonstrated a remarkable ability to rationalize away the message voters are sending when they hold elections, petitions, or previous initiative efforts toward similar goals. I.E. Did the voters attempt to send a message to the legislature that they were being too eager to raise taxes prior to the initiative, perhaps with a previous initiative, or a petition, or by voting against tax happy politicians? An incumbent winning by 51% of the vote is not a mandate for business as usual, it’s a warning that you need to pay heed to why the vote was so close, and make some changes. An initiative failing by 49% of the vote is also a warning that business as usual will probably mean next time, it’ll pass.Report

  4. Avatar Jaybird says:

    I support ballot initiatives that do stuff like legalize gay marriage but I am opposed to ballot initiatives that do stuff like forbid gay marriage.

    That has more to do with my opinions on gay marriage than my opinions on ballot initiatives, though.Report

    • Avatar Oscar Gordon says:

      I prefer when citizen initiatives align with my preferences, but I accept that they won’t always.

      The nice thing about citizen initiatives is that public opinion can turn, and a new citizen initiative can do what I want, sometimes faster than the legislative process that can be more easily captured by minority interests with access.Report

  5. Avatar Mo says:

    I’m not a huge fan of citizen initiatives, but I think AvA was ruled correctly. I’m especially not a fan of situations like California (my home state) where a simple majority of citizens can amend the state constitution.Report

    • Avatar Stillwater says:


      I’m not a huge fan of citizen initiatives, but I think AvA was ruled correctly.

      Could you elaborate on this a bit? Do you like the outcome (sustaining the AZ ballot initiative’s constitutionality) as well as the reasoning employed? I find myself wishing for a better argument defending the decision, one that was tailored much more narrowly and based on a practical or principled rationale.Report

      • Avatar Oscar Gordon says:

        Stillwater: I find myself wishing for a better argument defending the decision, one that was tailored much more narrowly and based on a practical or principled rationale.

        I as well. I am happy with the result, but less so with the path taken to get there.Report

        • Avatar Stillwater says:

          Seems to me an argument could be made that allowing legislatures to determine district boundaries for partisan reasons is inconsistent with the certain foundational principles of democracy and that to permit citizens to check that power via ballot initiative is not excluded by any provisions in the constitution. Something like that, anyway. Subject to Roberts-style massaging, of course.Report

          • Avatar Road Scholar says:


            One line of distinction, though I don’t know if it leads to any kind of fruitful legal argument, is between structure of government vs governance itself.Report

      • Avatar Mo says:

        @stillwater Both. The “legislature” was defined at statehood by the state’s constitutional convention and that process included citizen referrenda. The ASLand the federal government had opportunities to take the power away and did not. In fact, the first passed version of the constitution was vetoed by Taft because of the process of judicial recall enshrined in it. The constitution was appropriately amended and lives on today.Report

  6. Avatar Michael Cain says:

    At Election Law Blog, Rick Hasen reports that the Florida Supreme Court has ruled against the state legislature on redistricting. The court found that partisan legislative gerrymandering favored Republicans, in violation of the “Fair Districts” amendment to the Florida constitution (direct citizen initiative). The court gave the legislature 100 days to redraw the districts, which would require a special session. Arizona v. Arizona was cited in the decision.

    Florida is a new-comer to the direct initiative. It was added when the state constitution was rewritten in the 1960s. The other branches of the state government have worked pretty actively to curtail use of the direct initiative process.Report