In his dissent in Arizona State Legislature v. Arizona Independent Redistricting Commission in 2015, Justice Clarence Thomas argued that the Supreme Court had been inconsistent in the rigor it employs when considering constitutional challenges to the products of direct democracy, i.e., referenda and initiatives. Some cases seemed to use stricter scrutiny, and others lesser scrutiny, as compared to challenges to ordinary legislation. Justice Thomas argued that the review of direct democracy should be the same as for ordinary legislation, a proposition with which this Article agrees. This Article challenges the position advanced by Professor Julian Eule over twenty-five years ago, and others since then, that the process and products of direct democracy are suspicious enough to warrant stricter judicial scrutiny. In contrast, this Article contends that, on the whole, direct democracy is suficiently similar to ordinary legislation, and not particularly invasive of minority rghts, such that no special judicial hostility is warranted.

Included in

Election Law Commons