Note: This is I.doc modified 5-6-2001 I. An Introduction into the Judiciary and 209 The question of the role of the judiciary and its relation between the judiciary and the other two branches of government, that executive and the legislature, is a classic problem in the study of politics. The legislature makes the laws, the executive applies the laws, and the judiciary interprets the laws. This hypothetically balanced tripartite relationship becomes more complex when we consider possible unofficial fourth branches of government, such as the news media, the business elite, the unelected bureaucracy, or in this case, the citizens of the state itself, seizing the reins of government through the power of the initiative. So this is the horizontal aspect of the question of political structure. There is also a vertical aspect to the question of political structure. When we consider the relationship between state and federal government, our discussion becomes even more complicated, for we must take into account the distinctive, yet related jurisdictions of the state and federal judiciary. We recognize that the state judiciary operates within the context of not only the state constitution but also the federal constitution, and the federal judiciary. But the federal judiciary also relies on the state judiciary to interpret local statutes before they review such statutes to determine their constitutionality. Today we discuss California’s Proposition 209, a constitutional amendment by initiative, and examine how the state and federal judiciaries treat them and interpret them. In our evaluation of the role of the state judiciary and its role in policy-making, we look at the legal history of Proposition 209, now Article I, section 31 of the California state Constitution. Therefore our primary source of information comes from state court decisions that deal with Proposition 209. Our methodology in reading cases is the customary method used for briefing cases. We look at the central holding of the court and analyze the reasoning used to come to the holding. We look at such things as the holding, the rule of law in question, the essential fact pattern, the procedural history, and other aspects of the court’s rationale, such as applied interpretive philosophy. Examining the role of the courts in regards to Proposition 209 has led us to the following conclusions:
State courts tend to show deference to popular will in terms of constitutionality and scope. Challenges against Proposition 209 tend to be made in the federal level. In order to truly understand these two conclusions, we have to examine the theoretical, judicial models of both the federal and state courts. History and precedence play a major role in how the courts see themselves and only from this understanding can we fully appreciate their conclusions. II. The State and Federal Court: A Historical Contrast of Wills
California History and the Courts that Reflect Its Sentiment
California initiatives, referendums, and recalls are the product of a statewide effort to fight the powers of special interests. At the turn of the 19th century, the Southern Pacific Railroad dominated California’s government. Many citizens felt that their state government was actually run from the SP’s central political bureau in San Francisco than from Sacramento. This was during a time when many of the luxuries, or headaches, of today’s election did not exist. California’s senators were appointed by the California legislature, and gubernatorial candidates were selected at conventions. In other words, power was centralized and controlled by a select group. This created many instances where the people of California felt that the government was beholden to special interests and not to the people.
The 1906 Republican State Convention was the embodiment of all that was wrong with California’s political system. Republican Governor George Pardee was seeking re-election at the convention. While he was popular with Californians, he had angered the Southern Pacific leadership. In what can only be described as outright corruption, state officials and delegates were bribed and threatened to throw their support behind another candidate, James Gillett. Governor Pardee was defeated, and there was an outcry from all the major newspapers. In what can only be described as “The Shame of California,” James Gillett and the 1906 convention was a watershed in California politics.
There had been a push for direct primaries during that time, and all of the parties even adopted it. However, it was only after the 1906 convention that there was a serious push to see it adopted. In 1909, the population overwhelmingly passed a direct primary law to select their gubernatorial candidates. The Progressive agenda continued as the state overwhelmingly elected progressive government in 1910 with Hiram Johnson as governor and a solidly anti-machine legislature to support him.
On 10 October 1911, voters would ratify Johnson’s proposals for the implementation of the Initiative, Referendum, and Recall on the local and statewide level. Section II of the California constitution was added to ensure that California’s voters would have final control if the government were to revert back to its corrupt, non-representative ways. This was the culmination of the progressive movement against special interests. For decades, big business controlled the legislature and thwarted the will of California. It took the outright corruption of the 1906 convention to finally unite all of California to defeat the special interests which dominated California politics. These were the policies of an era which strongly believed in the enlightened voter and the right of the entire population to have their voices heard. The will of the people was the force in California, and they had their constitution amended to reflect this sentiment.
Given its history, the California courts have shown great deference to the initiative system. The California Supreme Court has recognized that, “It is our solemn duty to ‘jealously guard’ the initiative process, it being ‘one of the precious rights of our democratic process.” California’s courts have been fairly protective of direct democracy and will do much to ensure that voters’ preferences are enacted. However, this does not mean that courts will not use judicial review to ensure constitutionality. Many initiatives have been struck down for structural or procedural errors (e.g. single-subject rule) or for violations of individual rights (Miller). While deference is granted, state courts are still going to enforce the law.
The distinctly different histories of the California and Federal courts demonstrate the political and ideological differences which are grounded into their interpretation of the law. III. The Federal Approach to Proposition 209 A major aspect of the state judiciary’s role regarding the implementation of Proposition 209 is the plaintiff’s avoidance of filing in state court with a preference for filing in federal court. Proposition 209 is a state constitutional amendment and there would be an assumption that the state courts should have jurisdiction over the matter. Instead of challenging 209’s implementation in state courts, many of the cases filed against Proposition 209 have been filed in federal district courts. Why is there a tendency to file in federal court instead of the state? We can only speculate on the following: Theory 1: State courts have little power over constitutional amendments, as opposed to federal courts The federalist framework allows for two sets of courts with different sets of priorities and authority. Federal courts derive their authority from the Constitution and federal rules and regulations. Meanwhile, state courts derive their authority from the state constitution and their state rules and regulations. There are many instances where this can lead to conflict between federal laws and the state.
The California state constitution explicitly states that all political power is inherent to the people and that they have the right to change it when necessary (footnote, article II). They are empowered to do this through initiative and referendum. This gives initiatives considerable leeway if they are challenged in California courts. All propositions are required to survive state constitutional muster. However, propositions that directly amend the constitution are considerably more difficult to overrule. Studies of challenges in state courts reveal that many of the recent challenges were based on violations of the single-subject provision of the constitution. It is seldom challenged on the effects of implementation.
The same holds true for Proposition 209. Proposition 209 was a constitutional amendment (subsequently Article I, section 31) which made it automatically compliant with the California constitution. Parties who were against the proposition had little means of attacking it on the state level. Instead, they used the federal courts as a means to defeat the proposition. Theory 2: Federal courts are more willing to overrule propositions over constitutional conflicts than state courts because they do not have to show deference to the people. Using a strict constitutionalist framework of analysis, the federal government is recognized as the political entity created to protect the rights of the citizens, rights enumerated in the federal constitution. The states are recognized as the government entities with jurisdiction over local matters that are not enumerated in the Constitution. Their powers are reserved to them under the Ninth and Tenth Amendments of the Constitution. However, this does not mean that states have ultimate control over the lands that fall under their jurisdiction. The federal government enjoys oversight over all state actions through Article VI of the US Constitution, otherwise known as the Supremacy Clause. Should any state actions violate federal laws, the federal courts have the ability to overrule the state’s action. According to Holman and Stern, over 78% of all court challenges of California propositions have been through federal courts (Judicial Review of Ballot Initiatives: The Changing Role of State and Federal Courts, Craig B. Holman, Ph.D, Robert Stern Center for Governmental Studies, 1996, http://www.iandrinstitute.org/indepth/document8/intro.htm). Plaintiffs have found federal constitutional challenges to be far more hospitable than state courts. After all, there is no “popular will” clause in the US Constitution, because the United States is a union of political units that are responsible for the direct representation of citizens.
Proposition 209 is no exception to this growing tendency to attack propositions through federal constitutional issues. In Coalition for Economic Equity v Wilson, charges were brought in federal court over Proposition 209. The concern was that Article I, section 31, violated the Equal Protection Clause of the 14th Amendment. The plaintiffs hoped that the court would identify a conflict between the proposition and federal law and throw out the proposition for being unconstitutional. This once again reflects upon the role of the federal courts as the protector of the minority against the majority. This landmark case identified several issues which characterize the distinct differences and concerns between state and federal courts. Judge Thelton Henderson argues that “the issue is not whether one judge can thwart the will of the people” but whether the proposition complies with the Constitution and the Bill of Rights. Under a state court, the judge could have given deference to the voters because the historical role of the initiative. However, this isn’t necessarily the case for federal judges. Judge Henderson’s concern was for the insular minorities which he theorized could be adversely affected if Article I, section 31, were implemented.
Theory 3: Unlike state judges, federal judges are more willing to overrule because they are not vulnerable to popular reconfirmations.
Chief Justice Rose Bird earned a special chapter in the history of the California court system. She used every legal loophole and technicality available to stop capital punishment cases before her. Her personal opposition to the death penalty was not hidden in her decisions, even though the state was in favor of the death penalty. However, her fatal flaw was that she had to be reconfirmed every 12 years. In 1986, Californians targeted her for being too soft on the death penalty. Her re-confirmation was opposed by a 2-1 margin. In the end, her personal politics condemned her political career.
While many California judges are easily reconfirmed in elections, the Rose Bird incident is a warning to anyone who fights the political winds of California. Given this, it can be argued that a judge’s personal bias will not blatantly manifest itself if popular will holds a different opinion on the issue. After all, they could be the next Rose Bird. However, this does not apply to federal judges. Since federal judges have lifetime terms and can only be removed through Senate impeachment, they are relatively immune to popular resentment. As a result, federal judges can have biases which can prove favorable or detrimental to a proposition. Lawyers may be more inclined to actively search for federal judges who would ignore popular will and overrule the populace because the consequences of their actions are minimal. Given all these things, it would appear that federal judges tend to overrule state propositions more often because lawyers will actively search for courts who would tend to give rulings in their favor.
In the case of Proposition 209, the ACLU filed an injunction in San Francisco County. This was a calculated gamble by the ACLU because there was a good chance in getting a liberal judge to hear their case if they filed there. Hopefully, they would get a sympathizer who would accept the injunction and delay the implementation of Proposition 209. As it turned out, Judge Henderson was as good as it gets for them. Judge Henderson previously worked as a civil rights attorney and was the dean in charge of minority admissions in Stanford University. He was extremely sympathetic to the plaintiff’s case and issued an injunction on Proposition 209. His opinion was a long defense of the plaintiff and he distorted many case opinions to fit his arguments. In the end, the 9th Circuit would overturn his decision and cite that “the district judge relies on an erroneous legal premise, the decision operates to thwart the will of the people in the most literal sense” (6/20).
Afterthoughts on Federal Interpretation of State Laws
The case of the Coalition (insert footnote) v Californians Against Discrimination And Preferences (CADAP) is the best example of how opponents of Proposition 209 attempt to circumvent the proposition by using federal courts over state courts. The lawyers for the Coalition wanted to maximize their chances of halting the implementation of Proposition 209. State options were not as promising because of the deference state courts give to popular will through initiatives. However, federal courts do not have the same obligations and pressures that California judges face. As a result, lawyers filed an injunction in districts which had the most promise of accepting an injunction. In this case, the Coalition’s gamble paid off when Judge Henderson halted the implementation of 209. Furthermore, his opinion was a long defense of why 209 was not constitutionally permissible. Though federal judges have the ability to block the will of California voters with the stroke of the pen, this does not necessarily mean that it stays permanent. The 9th Circuit Court of Appeals overruled Judge Henderson, citing his flawed reasoning for an injunction against implementing Proposition 209. More importantly, the 9th Circuit’s decision highlighted the biggest concerns of activism which face the conflict between state and federal courts. The court wonders about the activism of a federal court for it “to tell the people of California that their one-day-old, never-applied-law violates the Constitution” (6/20). The circuit questions the value of attacking propositions federally when it has not yet been challenged in the state. In this sense, the 9th circuit is granting deference to the state judiciary by allowing them to rule on constitutional matter before they involve themselves in legal conflict. Furthermore, the 9th Circuit found it disturbing in which “A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy” (Footnote 6/20). One judge’s activism, which was heavily criticized upon appeal, can thwart the will of a state. Yet if the logic and self-understanding of the 9th Circuit judges who ruled on the constitutionality of Proposition 209 prevails, the California state judiciary will by necessity be charged with greater responsibility in distinguishing and deciding upon the constitutionality of state proposition. The federal judiciary would decrease, and the state judiciary would increase. However, unless we can discern a particular consensus among the members of a given federal court, it is difficult to predict their behavior. We recognize that conservative proponents of Proposition 209 also received their best hopes for winning in the 9th Circuit, because O'Scannlain and Judge Edward Leavy of Portland, Ore., were appointed by President Ronald Reagan and Andrew Kleinfeld of Juneau, Alaska was appointed by President George Bush. There are 18 Republican appointees in the 9th Circuit Court, but they stand out in the senior ranks, most of the newer Democratic judges were appointed by Clinton.
IV. State Approaches to Proposition 209
The judiciary wields the most influence by interpreting the text and the scope of a proposition. Even though it is the voters of California who vote on accepting or rejecting a proposition, it is the courts who are the ultimate judges as to when and how a proposition should be implemented or rejected. We previously touched lightly upon why state courts would have an interest in not overturning a passed proposition such as Proposition 209. Now, we will examine how these state courts interpret these propositions and apply them to the people.
We believe that Proposition 209 was given the broadest interpretation so that all forms of race-based discrimination or preferences would be eliminated in California. In fact, evidence would suggest that courts have gone out of their way to implement Proposition 209 in all aspects of government. We believe this is the case primarily because the courts see the implementation of 209 as enforcing the “will of the voter.”
Where does the court derive its interpretation of “will of the voter?” Does support for a measure necessarily imply that courts are obligated to enforce it? Once again, we have to refer back to Article II of the state constitution. The constitution recognizes that “All political power is inherent in the people. Unlike the federal government, the California constitution has provisions which promote a more populist system of direct election of offices. All of this is an artifact of the Progressive Era when representation was seen as a failure and only through direct democracy (via referendum, initiative, and recall) could a functional government be established. This perspective differs from the federal government which was created with the explicit understanding of protecting minorities from the tyrannical majority (See Federalist 10). Furthermore, federal courts have long since reversed its position regarding minorities. The Lochner Era of a laissez faire rule has been replaced by the Carolene Products court where the federal courts view as a primary responsibility the protection of “discrete and insular minorities” from the excesses and oppression of the majority. For California though, these views conflict with the values of the state constitution. Should the courts play the “watchdog” and check to see that propositions are not unconstitutional and possibly trample on the rights of others, or are they better off “accomodationists” (Cite ken miller)? Even though there are two major perspectives regarding the possible role of the state court, studies have indicated that state courts are very much accomodating propositions once they pass (Holman). Compared to the federal courts, state courts have only invalidated a handful of initiatives in its entirety. While they are still willing to make necessary changes to initiatives for constitutionality, they are less likely to kill an entire proposition than federal courts.
So how accomodating are these California courts in regards to Proposition 209 after its passage? Proposition 209 was read in the broadest terms possible such that one could argue that courts went out to enforce 209 in every realm possible. The argument that the state “shall not discriminate against, or grant preferential treatment to” has been read by California courts to include all forms of programs that would give assistance, additional consideration, or benefit one group over another because of their race or gender. Both Hi-Voltage v San Jose and Kidd v California are excellent examples of judicial activism which push the boundaries and intent of Proposition 209.
The Case of Kidd v California. The California State Personnel Board hired people based on the results of a civil service exam. Those who scored in the top three ranks were eligible candidates for employment. However, women and minorities were allowed to additional consideration if they were to receive supplemental certification. Kidd was denied a position partially because someone who scored below him, who had supplemental certification, was hired instead. His lawsuit was thrown out because by the time the case was heard, the State Personnel Board withdrew the use of supplemental certification. By the time his appeal was heard, Proposition 209 passed. The Appeals Court took the time to debate supplemental certification even though it was no longer being used. The court incorporated Proposition 209 into the case and proceeded to refute all of the defense’s claims and proceeded to rule how preferential programs such as supplemental certification are not allowed.
The Case of Hi-Voltage v San Jose. In order businesses to apply for a government contract in San Jose, they were required to show that they have fulfilled an outreach or participation component to underrepresented minorities. However, this did not apply to minority business enterprises (MBE) or women business enterprises (WBE). Hi-Voltage was the lowest bidder in a contract but failed to document four cases of soliciting MBE’s/WBE’s for contracting. As a result, their bid was disqualified and they sued saying that it violated Proposition 209. The Superior, Appeals, and Supreme Court all ruled that MBE/WBE programs violated Article I, section 31. The reasoning was that both benefiting and burdening groups in relation to race was unconstitutional.
Where do these courts derive their interpretation of Proposition 209? The courts search for the intent through the both the language of the initiative as well as the ballot summaries which accompany them.
Courts look towards the language of the initiative to see if the “clear” or “plain” language of the proposition when it act upon it. Regarding cases such as Kidd and Hi-Voltage, they recognize that the language of the proposition is very clear and there is no confusion as to their stance regarding racial discrimination and preferences. However, sometimes a judge “sees” too much into the intended effects of the propositions and will actually start inserting ideas which are not necessarily part of the proposition. Judge Ford attempted to install the phrase “affirmative action” into the ballot summary of Proposition 209 because he believed that he understood the “chief purpose of the initiative” and felt that the writers were obligated to describe this to the voters. He saw Proposition 209 as a narrowly written initiative and he wanted the proposition rewritten to reflect this. He wanted his scope of the proposition to be voted upon by the people. However, an appeal of the decision ruled that the main purpose of the ballot statement was to avoid misleading the public with inaccurate information (Appeal 3/5). In the case of Proposition 209, Judge Ford assumed that because the ballot title and label did not contain “affirmative action,” the proposition was misleading the voters. Is Judge Ford’s decision an aberration against the spirit of California courts? Not really. An argument can be raised that Judge Ford merely wanted the proposition to be clarified as to its “true intent” so that the people would be able to make a fully informed decision on the issue. Apparently he agreed with the defense’s argument that the chief intent of the writers of Proposition 209 was to eliminate affirmative action, and he wanted “affirmative action” written into the ballot (insert footnote). However, in doing so, he may have overstepped his boundaries because Proposition 209 is about discrimination or preferential treatment, not affirmative action. He was looking too much into the intent of the proposition.
Aside from that instance, most judges rely upon the clear language that is stated in the proposition. However, if the language of the proposition is confusing, then judges will look towards the ballot summary for its application. In the case of Proposition 209, while the language of the initiative did not include the phrase affirmative action, the summary did describe that affirmative action would be removed if the proposition passed. Proposition 209 was clearly very that preferences of any sort would not be acceptable and this was reiterated throughout the ballot and in arguments in favor of its passage. As a result, the courts, exercising the will of the voter, applied the policies of this initiative to all the cases possible.
V. Shortfalls onto the System
There will always be an immense amount of litigation and scrutiny when propositions such as 209 are placed before the people. Judges in state and federal courts constantly face a daunting task of evaluating the constitutionality of these measures. On the one hand, state courts appear to grant more deference to these propositions, despite the risk of constitutional flaws. The history of the initiative lays down much of the reasoning for courts to trust the people and not the will of a select group. After all, why should California courts impede the will of the voter? Those with an eye towards the nature of California’s initiative system would claim that the spirit of California’s constitution would ask that “the will of the people” be recognized and that the role of the courts is to do as much as possible to accommodate the will of the ballot box. In the case of 209, California courts not only accepted the constitutionality of 209, they expanded its scope and applicability. Courts took on cases such as Kidd and addressed potential issues which dealt with the applicability of 209. The California Appellate and Supreme Courts all went into considerable details describing how Proposition 209 was constitutionally sound. Even more significant, they went into considerable detail in rejecting many programs which they found as violating the spirit of Proposition 209. In Hi-Voltage and Kidd, there were numerous references to the voters and their intent when they passed the proposition. The state courts found no constitutional defects in Proposition 209 and made it a point to exercise their perception of the will of the voter.
On the other hand, federal courts have an even more difficult position of evaluating statewide propositions. Federal courts are torn between granting deference to California voters and protecting the rights of the minorities. Both ideals are firmly rooted in the Constitution. While the federal courts should adhere to the federalist framework of separation of powers and allow states to do what they want, they are also the guardians of the discrete minorities whose freedom may be trampled upon by a tyranny of the majority. If that is true, then it is the judge’s obligation to strike down the will of the majority. Of course, there are more cynical reasons for why federal challenges have predominated the courts, but it is the constitutional conflict which is not as prevalent in California courts that gives challengers a greater opportunity for success. In the case of 209, the challengers did find initial success when the court ruled their way. However, while the district court ruled on the side of protecting the minority, the 9th Circuit immediately overturned it and sided with California’s right to choose what they want.
Proposition 209 raises many serious questions regarding judicial oversight into propositions. How could a few judges exercise so much control over an issue which is to be presented before an entire state? Judge Ford almost rewrote the proposition before it went to the people. Judge Henderson blocked it after it was implemented. attempted to limit its scope in Kidd. Fortunately, our state and federal judicial systems are designed with the ability to appeal any decision to a higher court where more justices would have oversight on the issue at hand. In all the cases, an appeals court overturned the original decision. So what can be done to avoid all of the constitutional litigation around Proposition 209?
the initiative process is part of the making of law and lacks, apparently to its detriment, the institutional features that the legislature does possess. Therefore the natural set of solutions includes adding and adjusting features from the established institution of the legislature to shore up badly written, possibly unconstitutional initiatives. The proposals by the Los Angeles Times, the Sacramento Bee, the California Constitutional Revision Commission, and the Second Annual Symposium on Elections at the Center for the Study of Law and Politics recommend such things as a tightening of the single subject rule, legislature sponsored public hearings on the nature of initiatives, appointed panels to advise on the constitutionality of initiatives, and the option for the legislature to suggest and write in amendments to initiatives with the approval of the majority. None of these things require judicial intervention; rather, they appear to carefully circumvent excess litigation, with the exception of a tightening of the single subject rule. Legislative attempts at reform include these two significant attempts to implicate the judiciary in the reform of initiatives. Both failed.
In 1997-1998 in the Assembly attempted to obtain advisory assistance on constitutionality from the judiciary.
“AB 677 (Aguiar)
This bill would declare the intent of the Legislature to require a non-binding advisory opinion by a panel of 3 independent judges regarding the constitutionality of a proposed initiative measure. The opinion would ‘be made available’ to registered voters.” (Simmons, 23) However, the backgrounder points out that “at least one proposed initiative measure (Proposition 1, November 1942: Prohibiting Hot Cargo and Secondary Boycotts) was identified by the Attorney General and the Legislative Counsel in the state ballot pamphlet as being unconstitutional. Notwithstanding this caution, the measure was passed by the voters with 55% of the vote.” AB677 died pursuant to Art. IV, Sec. 10(c) of the Constitution. (http://www.leginfo.ca.gov/pub/97-98/bill/asm/ab_0651-0700/ab_677_bill_history.html)
We see a second significant try in 1998 to try to secure judicial supervision in the writing of initiatives with stronger requirements on the “single-subject rule”; that is, “an initiative measure embracing more than one subject may not
be submitted to the electors or have any effect.” (Article II, Sec.8, (d)) However, the rule is empty, undefined by the state constitution. To some the rule is in serious need of clear definition.
“SCA 5 (Karnette, Lewis, Maddy, Polanco)
This measure would provide that an initiative embraces one subject when each provision is reasonably germane to the general objective or purpose of the measure and is reasonably interdependent with all other provisions.” (Simmons, 26)
However, there was opposition stating that the wording of this constitutional amendment would authorize more court interference. “The Howard Jarvis Taxpayers Association believes the amendment runs contrary to the policies favoring protection of the initiative process. It opens the door to even wider interpretation by the counts of initiative and whether they violate the single-subject requirement.” (Senate Floor Bill Analysis, 1998 http://www.leginfo.ca.gov/pub/97-98/bill/sen/sb_0001-0050/sca_5_cfa_19980417_111831_sen_floor.html) Though the phrases “reasonably germane” and “reasonably interdependent” suggest that the court would presumptively consider an initiative legitimate, the lack of clarity evidentially troubled the legislators.
Perhaps a preliminary review of all proposed initiatives would solve these numerous court challenges. However, in the case of Proposition 209, we believe that this would solve very little. Federal courts should not be in the business of reviewing all state laws before they are even introduced. That would be a gross violation of the federalist system. Even then, this still would not disprove the cynics perspective of why there would not be federal challenges. Furthermore, Judge Ford’s role was to review all propositions beforehand. This proposal would not have necessarily affected his ruling.
Though there were many 209 challenges which failed, this does not mean that we should limit appeals on passed propositions either. Judicial review is an essential part of American law and is necessary to keep a government or people from overstepping their bounds. In the end, perhaps the role of the courts in the initiative system does not need major modifications. Courts are there as oversight against excesses by the people and the government. In the case of Proposition 209, they were constantly called upon as a check against all sides of the issue, proponents and opponents. While there were many “judicious” opinions made by individual judges, they were constantly held in check through the appeals process.
The one area that is of concern is the growing tendency to file lawsuits in federal courts. The 9th Circuit made an accurate concern when it wondered why is it that the federal courts are reviewing cases before the state courts have had a crack at it. While federal courts are there as an oversight against any major constitutional violations made by the state, they should not be the first body to examine the constitutionality of a case. However, much of this is the consequence of a state court system which tends to grant deference to the voters. Opponents who cannot find outright technical errors in propositions are compelled to search for violations of individual rights on the federal level (citation). In that case, the federal government provides the course of action.
From this colorful history, courts have recognized that popular will is a critical part of constitutionality. Studies show that aside from the violation of the single-subject rule, California courts rarely overturn initiatives (may want to elaborate).
A study into challenges of California propositions reveal that
Because of this, state courts tend to show deference to referendums because it reflects popular will. Studies have shown that state courts not only attempt to keep intact as much of a passed proposition as possible, they even amend minor constitutional errors (Miller). State courts recognize propositions as being the will of the voter and will do all that is permissible to keep the intent of the proposition intact. Seldom will state judges attempt to go beyond the intent of the writers of the initiative unless it violates federal law. State activism is manifested through fulfilling popular will, rather than opposing it. Meanwhile, the argument is that federal courts do not adhere to these standards, being a federal entity, and they are more willing to take on initiatives if they violate the law.
However, do federal judges necessarily get involved in proposition such as 209? Much of this depends on the next theory.