Should Courts Block Unconstitutional Ballot Measures Before the Vote?

Brooks v. Reynolds Highlights the Timing Dilemma in Oklahoma

In January, Oklahoma voters and state legislators launched a ballot initiative aimed at eliminating property taxes on primary residences. Before signature collection even concluded, a group of opponents filed a lawsuit directly with the state supreme court in State Court Report to block the measure. The legal challenge relied on clear state constitutional language governing property tax assessments. Faced with the choice of stopping the initiative immediately or waiting to see if voters approved it, the court’s majority chose preelection intervention.

Four justices dissented from the decision. They argued that the court should not have considered the constitutional issues before voters had an opportunity to cast their ballots. This debate over timing carries heavy stakes. Ballot initiatives frequently spark expensive, high-stakes political fights and serve as one of the few avenues where citizens express direct preferences rather than relying on elected representatives.

Judicial Precedent and State-by-State Approaches

Oklahoma’s high court originally limited preelection reviews to procedural shortcomings. However, a 1975 ruling expanded that authority to substantive constitutional objections, reasoning that doing so could prevent a costly and unnecessary election. Under the current standard, the court blocks initiatives that show clear facial constitutional infirmities. Dissenters in Brooks v. Reynolds argued that citizens acting through an initiative hold legislative powers, making a ballot measure analogous to an unpassed bill that courts must wait to evaluate.

Other states handle preelection challenges through contrasting legal frameworks:

• California: The state supreme court generally waits until after an election to review constitutional challenges to citizen initiatives, aiming to avoid disrupting the franchise. However, if a measure falls outside the scope of initiative power, the court intervenes early. In 2024, the court blocked a tax-approval measure, concluding it made structural government changes beyond the scope of an initiative.
• North Dakota: The state supreme court considers procedural objections to ballot measures but refuses substantive constitutional challenges before an election. In June, the court blocked a legislatively referred term-limits amendment because state rules dictate such changes must originate from citizens.
• Virginia: Virginia lacks a citizen initiative process, but voters must approve constitutional amendments. The Virginia Supreme Court maintains that courts lack power to block even procedurally defective amendments before an election, treating the vote as part of the enactment process. The court made national headlines in May after voiding a redistricting amendment only after voters had approved it.

Questions Ahead for Courts and Voters

These divergent state rulings illustrate a lack of consistent legal theory regarding direct democracy. Courts must weigh the heavy financial and administrative resources spent on campaigns against the potential harm of invalidating a public vote after the fact. Overruling the electorate post-election risks eroding public trust in judicial institutions and election systems alike.

Why Do Dissenters Oppose Preelection Review?

Why did the dissenters in Brooks v. Reynolds argue against preelection review?

The dissenters contended that citizens exercising initiative powers act analogously to a legislature. They argued that courts must wait for a bill to pass before weighing its constitutionality, just as they should wait for voters to approve a ballot measure.

How does California’s Supreme Court decide when to review a ballot measure?

The California Supreme Court generally defers constitutional challenges until after an election to protect the voting process. It intervenes before an election only when a measure exceeds the legal scope of the initiative power.

What did the Virginia Supreme Court decide regarding constitutional amendments?

The Virginia Supreme Court ruled that courts cannot block procedurally defective amendments before voters see them. The court reasoned that the election itself forms an essential part of the amendment enactment process.