This Article synthesizes and critiques a dozen years of scholarship about judicial construction of legislation passed by voter initiative. The Article then makes a comprehensive case for an alternative approach: an appropriately enhanced focus on the intent of initiative sponsors. More specifically, the Article validates, through analysis of recent California decisions, a longstanding scholarly consensus that the prevailing judicial search for "the intent of the voters" is seriously flawed. The Article provides the first synthesis to date of reform proposals offered by "initiatory-construction" scholars; the discussion contends that these proposals collectively fail four key evaluation criteria. Building on the 2003 work of an author who pointed to the value of examining sponsor intent, this Article argues that the earlier author was on the right track but gave an incomplete defense and erred in the reform proposal he advocated. This Article explains how an appropriately enhanced sponsor-intent focus points the way to meaningful procedural reforms improving both the interpretation of initiatives and the processes of direct democracy.
Glenn C. Smith, Solving the ‘Initiatory Construction’ Puzzle (and Improving Direct Democracy) by Appropriate Refocusing on Sponsor Intent, 78 U. COLO. L. REV. 257 (2007).