Courts taking away people's ability to make law

John Fund has an interesting piece up today:

. . . But the biggest threat to initiatives comes from the courts, which are striking measures from the ballot with abandon. The Florida Supreme Court, infamous for its creative rulings in the 2000 recount, has removed a proposed measure creating a nonpartisan commission to redraw the state's gerrymandered legislative districts on the grounds it deals with more than one subject.

In Oklahoma and Nevada, measures restricting government's powers of eminent domain and restricting land use were either removed or gutted on single-subject grounds. In Montana, an initiative limiting growth in the state's budget to increases in population and inflation was declared invalid because it authorized judges to modify the spending cap. A district judge ruled that provision represented a second subject.

In June the Colorado Supreme Court used a similar interpretation to remove an initiative denying most state services to illegal immigrants. The court bizarrely ruled that the initiative fell afoul of that requirement because it reduced taxpayer funding of services to illegal immigrants while it also denied services to that group. This puzzled legal scholars, who noted that the decision directly contradicted a previous ruling by the same court on a gun-show initiative, which concluded: "The mere fact that the initiative contains detailed provisions for its implementation does not mean that it contains multiple subjects." The Denver Post, which opposed the anti-immigrant services measure as "mean-spirited," nonetheless accused the court of applying "logic that pretty much escaped the rest of us" and urged that it reconsider and restore the initiative to the ballot.

"State courts are aggressively wielding the single-subject requirement to deny voters the ability to vote on important public policy issues," says Elizabeth Garrett, a University of Southern California professor who worked in the office of Sen. David Boren, an Oklahoma Democrat. . . ..


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