Judicial Review of Initiatives and Referendums in which Majorities Vote on Minorities’ Citizenship

In this Article, Professor Lazos examines initiatives and referendums in which a majority is in a position to vote on the content of a minority\u27s democratic civic standing. Case law fails to set forth a single test for judicial review; consequently, doctrinal and theoretical coherence in this area is nonexistent. Professor Lazos proposes a test that takes into account social dynamics and focuses on the impact of these measures. First, she examines outcomes over the last three decades of approximately eighty such initiatives and referendums, from the anti-integration movement of the sixties to today\u27s ideological and cultural versions, such as English-only and laws that exclude gay men and lesbians from discrimination protections. At an aggregate level, minorities “lose” roughly four out of five times. However, on closer examination, the story is more complex. Although anti-minority results easily can be triggered by “we-they” group thinking and reflect more subtle expressions of prejudice, they also are vehicles for ideological conflicts. Because the dynamics are complex, but yet can threaten the polity\u27s civic cohesion, Professor Lazos\u27s proposed test would focus on impacts, not on motives. Under her proposal, courts would focus on how such initiatives impact on a minority\u27s ability to participate and continue to vie in the rough back and forth of democratic politics. Courts would weigh three factors: (1) how such initiatives and referendums impact on a minority\u27s opportunity to participate politically in the polity, (2) whether such laws stigmatize a minority, and (3) whether they unduly burden a minority\u27s participation in civic society. If a court determines that an initiative or referendum severely and detrimentally impacts a minority\u27s participation in the polity, the court then would apply strict scrutiny analysis, and the law would stand only if the state were able to show a compelling state interest that supports the measure