Controlling direct democracy in the constitutions of American states: the example of Massachusetts

The Constitution of the United States does not envisage the possibility of legislating via direct democracy. Almost all US state constitutions, on the other hand, do. This means that each state Supreme Court must consider whether motion proposals meet the state’s constitutional requirements governing voting matters and whether such proposals violate a substantive limitation contained elsewhere in the state constitution. In such cases, state high courts must determine the extent to which they can — or should — control popular legislation mechanisms.

A recent decision by the Massachusetts Supreme Judicial Court (SJC) is an illustration of this. In Koussa c. Attorney General, the SJC has ended a proposed initiative that would have asked voters to determine whether rideshare drivers should be classified as independent contractors or employees. The court’s decision, as reported hereended “what was supposed to be an extremely expensive election campaign that was already garnering national attention”.

As is the case in many states, proposals for modern initiatives under Section 48 of the Massachusetts Constitution are often controversial. It has not always been so. Voters agreed to add Section 48 to the state constitution more than a hundred years ago “in hope,” as Jerold Duquette and Maurice T. Cunningham did. Explain, “that citizen power could defeat an unresponsive legislature and pass legal measures to meet the needs of the people.” As Duquette and Cunningham note, it is only in the past two decades that the initiative process in Massachusetts has become the focus of “the battles of interest groups and the playground of the well-to-do rather than ‘a source of citizen action’. The controversy underlying Koussa on how to classify carpool drivers illustrates this evolution. By the end of 2021, Uber, Lyft and other gig economy companies had spent nearly $18 million promoting the election issue; for their part, the opponents of the proposal had raised more than a million dollars. Lyft’s $13 million contribution apparently was the largest in Massachusetts history.

Given the stakes, it should come as no surprise that the promoters of the carpooling proposal immediately criticized the decision of the SJC in Koussa following a dispute aimed at “overthrowing the democratic process”. In reality, Koussa is best understood as a simple effort by the SJC to enforce existing controls on the Section 48 initiative process – to ensure that the provision continues to reflect both the hopes of the citizens who drafted and ratified the 48, and the role of the provision in Massachusetts’ constitutional system of government. The court’s unanimous opinion stresses the importance of the constitutional requirement that motions for initiative contain “only matters … which are related or which are mutually dependent”. This requirement recognizes that voters, unlike legislators, cannot make changes to a proposal through the initiative process, as legislators can through the traditional legislative process.

The SJC ultimately concluded that the Massachusetts Attorney General erred in enforcing this requirement when she certified the carpool proposal for inclusion on the ballot. As the court explained, when a proposal contains several topics, they must share a common objective. This common goal cannot be so broad that the topics of the proposal are only loosely related to each other. Rather, the objective must be sufficiently consistent across all the various provisions of the proposal that voters can consider them together as a cohesive and unified policy statement. The court specifically found that the rideshare proposal violated the connection requirement by presenting voters with “two substantially separate policy decisions” — one dealing with the relationship between rideshare drivers and the companies they work for, and the other seeking to limit such undertakings. potential liability to third parties who suffer injuries as a result of rideshare drivers’ conduct.

“The legally enforceable rules regarding the voting process … reflect an effort … to maintain the limits of popular legislation via Section 48.”

Thus understood, the decision in Koussa makes logical sense. As the SJC has recognized, there is not necessarily a relationship between a provision that would define the employment status of a rideshare driver and a provision that would protect rideshare companies from certain legal liabilities – the latter does not depend on the first.

It should be kept in mind, further, that judicially enforceable rules regarding the voting process, such as the link requirement, reflect an effort not only to maintain the integrity of the initiative process, but to maintain the limits of popular legislation via article 48. [RC1] In other words, these requirements are intended to maintain section 48 as a constitutional exception and not as a rule. This is consistent with the initiative’s history in Massachusetts as a mechanism for legislation aimed at specific cases in which the legislative process has failed to match the popular will – not as a means to supplant preference. constitutional for the deliberative legislation that John Adams envisioned for the Commonwealth when the citizens of Massachusetts adopted the state charter in 1780.

The history and role of direct democracy is not unique to Massachusetts, of course, and state courts can learn much from each other. The SJC, older than any other court in the land and interpreting the oldest written constitution in the world, may still have lessons to pass on to other courts seeking to control the popular lawmaking processes adopted by their state constitutions.

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