Not all states allow citizen initiatives, and nowhere does the U.S. Constitution require that people be allowed to pass legislation by popular vote. Because of that, a coalition of animal rights groups may have trouble getting 10th Circuit Court of Appeals to agree that a 1998 law requiring a two-thirds majority to pass any wildlife initiative is unconstitutional.
But that doesn't mean their case is without merit.
Utah lawmakers and voters made a mistake seven years ago when they decided to amend the state constitution to set a two-thirds threshold for all wildlife initiatives. That amendment treats one single issue differently than all other issues that could be addressed by the initiative process. Hunting issues are no more important than myriad others, including tax measures. The amendment was nothing more than the triumph of special-interest politics.
It would have been more fair to raise all initiatives to the two-thirds threshold, or to simply leave wildlife issues to the same restrictions as all other issues. In Utah, lawmakers have made initiatives so difficult as to render most frivolous petitions, and even most worthy ones, too costly.
But just because an amendment is ill-advised does not necessarily make it unconstitutional. Nor is Utah's amendment unique. A lot of states have singled out certain issues and tacked on special requirements in order for the public to impose laws affecting them. For example, some states require a two-thirds vote on alcohol sales or school funding. Others won't let their own state legislatures pass a tax increase without a two-thirds majority.
Not surprisingly, those states are watching the 10th Circuit Court closely. Should the court toss out Utah's wildlife amendment, those other initiative laws could be in trouble, as well.
The citizen initiative process poses some inherent problems. It is a way for citizens to bypass representative government. Sometimes this is necessary, such as when special interests or other considerations keep lawmakers from recognizing the will of the electorate. But sometimes, special interests themselves can hijack the initiative process, gathering signatures by telling lies or inflating the truth, then bombarding the airwaves with misleading ads.
Unlike the normal legislative process, initiatives can't be amended by representatives whose constituents may have a stake in the outcome. That makes the process of direct democracy less fair.
But the U.S. Constitution doesn't address any of this. That means the court has to decide whether to enter murky waters and make an issue out of equal treatment and fairness. That would be ill-advised. Despite a flawed amendment in Utah, initiative issues are best left to the states.