By Michael D. Gilbert. Full text here.
Judges claim to resolve ambiguities in initiatives by identifying and giving force to “voter intent,” but scholars reject that on the ground that such intent does not exist. This Article argues otherwise. We can understand the search for voter intent to be a search for the majoritarian interpretation. The interpretation preferred by the median voter has special claim to being majoritarian. Hence my central claim: judges select from plausible interpretations of an initiative the one favored by the median voter. The claim is both positive and normative. I hypothesize that judges do decide this way, in part because of electoral incentives, and I provide reasons to think they should decide this way.
The analysis generates a number of insights. Voter intent, unlike legislative intent, can be conceptualized concretely and identified. Judges who seek the majoritarian interpretation of an initiative must consider the views of all voters, including those who voted against it. In some circumstances, judges who interpret initiatives in light of their career prospects can be understood to act legalistically. Finally, the same electoral accountability that can lead state judges to interpret initiatives in majoritarian fashion has a downside: it can make their constitutional review of initiatives too deferential. This gives rise to a choice. To get the searching judicial review that initiatives arguably warrant may require a sacrifice of the majoritarian interpretations that initiatives deserve.