Initiative elites and the courts: A strategic new institutionalist view of the state initiative process

State ballot measures face a significantly higher rate of judicial nullification than legislative statutes. Empirical research shows that over 50% of all approved ballot measures are challenged in court. Of those, courts invalidate approximately 50%. Furthermore, the data show that the level of judicial nullification of ballot measures has been consistent for the past 30 years. Existing theories in political science, which examine how individuals behave within institutional structures, predict that actors within the initiative process should react to the high rate of judicial invalidation, and seek ways to protect the autonomy of the initiative institution.; Based on data collected during 45 in-depth interviews, this dissertation explains why the rate of judicial nullification of ballot measures has been, and remains, relatively high. Despite the fact that initiative activists are rational actors who learn from previous mistakes and interpret political signals from other institutions, they continue to draft unconstitutional legislation. This occurs because institutional rules and incentives within the initiative process inhibit the drafting of constitutional legislation. This dissertation identifies the "rules of the game" within the initiative process that inhibit the drafting of constitutional initiatives. The dissertation also identifies decision-making by initiative elites that leads to the drafting of unconstitutional measures. Specifically, the dissertation argues that coalitions within the initiative process are inherently unstable. When the coalitions dissolve, the more committed members return to the process, but with new goals. These goals include using the initiative process for symbolic measures, pressuring legislatures, and draining the resources of oppositional interest groups. Given these new goals, insuring the constitutionality of an initiative becomes less important.; The conclusion is that initiative elites are not amateur lawmakers. Instead, initiative elites are politically sophisticated actors but have a difficult time passing legislation because of the institutional environment in which they participate.