May 2009 Vol. 107 No. 7 THE REVIEW

Conditions on Taking the Initiative: The First Amendment Implications of Subject Matter Restrictions on Ballot Initiatives

Anna Skiba-Crafts

Nearly half of U.S. states offer a ballot initiative process that citizens may use to pass legislation or constitutional amendments by a popular vote. Some states, however, impose substantive restrictions on the types of initiatives citizens may submit to the ballot for a vote—precluding, for example, initiatives lowering drug penalties or initiatives related to religion. Circuit courts are split on whether and how such restrictions implicate the First Amendment.

This Note argues that—rather than limiting “expressive conduct” protected only minimally by the First Amendment, or limiting pure conduct that does not garner any First Amendment protection—subject matter restrictions on ballot initiatives constrain “core political speech” and so should receive strict First Amendment scrutiny. It asserts that the rationales underlying the First Amendment counsel for the recognition of initiatives as pure speech, and that ballot initiatives fit into the specific doctrinal category of “core political speech.”

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