“Taking the Initiative: How to Save Direct Democracy”

Jessica Levinson has posted this draft of SSRN (forthcoming, Lewis and Clark Law Review).  Here is the abstract:

In Meyer v. Grant a unanimous Supreme Court dealt a grievous blow to the most popular form of direct democracy – the ballot initiative process. The ballot initiative process allows average citizens to stand on the same footing as their lawmakers and directly enact legislation. It has failed to serve its purpose of guarding against the destructive influence of moneyed interests on lawmakers. Due to the Court’s decision in Meyer, moneyed interests are now free to buy access to the electoral ballot. The ballot initiative process has been turned on its head.

In this Article I first focus on the Court’s failings in Meyer, where the Court overturned a prohibition on the payment of petition circulators on First Amendment grounds. Next, I explain how a shift in the Court’s approach would allow the ballot initiative process to serve its original function. The Court should have applied its candidate ballot access jurisprudence, not its campaign finance case law, to analyze the restriction at issue in Meyer. Once properly viewed through the correct analytical lens it is clear that the government has the power to regulate access to electoral ballots by prohibiting the payment of petition circulators. The practical ramifications of this analytical shift are far-reaching, namely wrestling the ballot initiative process from the destructive influence of special interest groups over legislatures and providing grass roots groups with lawmaking power.

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