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The Eye of a Constitutional Storm: Preelection Review by the State Judiciary of Initiative Amendments to State Constitutions

51 Pages Posted: 1 Oct 2013  

Scott Kafker

Massachusetts Appeals Court

David A. Russcol

Zalkind Duncan and Bernstein LLP

Date Written: September 10, 2012


A phenomenal constitutional storm has struck the American states. Turbulent societal issues such as abortion, the legalization or decriminalization of drugs, gay marriage, health care, collective bargaining rights, renewable energy, gambling, and even public school class size are being decided through initiative petitions to amend state constitutions. Interest groups understand that they can utilize this process to constitutionalize their policy preferences, and the public vigorously guards its right to the initiative as its only method of directing constitutional change. Although most commentators desire to will the initiative amendment away, or focus their energies on strict post-passage policing of this process, particularly by the federal courts, this Article adopts a different approach. It considers pre-election review by the state courts to be the focal point for inquiry and improvement of the initiative process, and recommends a more active pre-election role by the state judiciary than previously practiced by the courts or proposed by the commentators.

Although we understand the problems and dangers posed by the initiative process, we accept and respect the people’s right to actively participate in amending state constitutions through the initiative process, and seek to better define the state judiciary’s role prior to the vote on the initiative. We envision the state judiciary having a dual role: (1) to protect the integrity of the state constitutions and the processes for changing them, and (2) to protect the people’s, as opposed to the particular proponents’, rights in the process. This calls for a vigilant pre-election review by the state judiciary, as it sits in the eye of this storm of constitutional activity.

This Article begins by discussing the background and history of the initiative, the commentary and criticism it has drawn, and the role of the state judiciary. It then lays out the different steps in the initiative process, and the procedural questions courts may be asked to address before a proposition is placed on the ballot. The Article reviews the subject-matter and other substantive limitations imposed by state constitutions, which are mostly accepted as ripe for pre-election adjudication. It examines substantive constraints based on the federal constitution, which are often decided post-election, and argues for pre-election review by the state judiciary where an initiative clearly conflicts with United States Supreme Court precedent. Finally, it considers the practical implications of rigorous pre-election review by elected state judges, and concludes that a robust but carefully constrained process of pre-election judicial review is not only consistent with the obligations and responsibilities of state judges under the federal and state constitutions, but also would not be subject to the same political pressures as post-passage rejection of a popular initiative.

Keywords: initiative, state constitutional amendments, state constitutional law, state judiciary, judicial review, federalism

Suggested Citation

Kafker, Scott and Russcol, David A., The Eye of a Constitutional Storm: Preelection Review by the State Judiciary of Initiative Amendments to State Constitutions (September 10, 2012). Michigan State Law Review, Vol. 2012, No. 4, p. 1279. Available at SSRN:

Scott Kafker

Massachusetts Appeals Court ( email )

United States

David A. Russcol (Contact Author)

Zalkind Duncan and Bernstein LLP ( email )

65A Atlantic Avenue
Boston, MA 02110
United States

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