11 particularly acute where the initiative process targets historically recognized racial, ethnic, religious, or other minorities.9 First, ballot initiative campaigns, by their nature, “appeal to passions and prejudices” and are divorced from any deliberative or ongoing coalition-building process.10 Second, popular initiatives operate against the backdrop of historical and current barriers to minorities’ participation in the political process, including the current iteration of voter registration restrictions, reductions in the availability of early voting, and voter identification requirements.11 This Court, in tacit recognition of such concerns, has long applied heightened judicial scrutiny to See Robin Charlow, Judicial Review, Equal Protection and the Problem with Plebiscites, 79 Cornell L. Rev. 527, 560-61, 578-80 (1994); id. at 541 n.48 (“‘Direct democracy bypasses internal safeguards designed to filter out or negate factionalism, prejudice, tyranny, and self-interest,’ thus requiring special judicial oversight to serve as a defense for minority interests.”); David B. Magleby, Let the Voters Decide? An Assessment of the Initiative and Referendum Process, 66 U. Colo. L. Rev. 13, 40-41 (1995) (noting that “[t]he only institutional checks on the excesses of direct legislation are the courts,” and that the “issue of checks and balances on direct democracy is most relevant when initiatives target racial or other minorities”); Eule, Direct Democracy, supra, at 1549. 9
10 Magleby, supra, at 44; see also, e.g., Derrick A. Bell, Jr., The Referendum: Democracy’s Barrier to Racial Equality, 54 Wash. L. Rev. 1, 11 (1978).
See New State Voting Laws: Barriers to the Ballot?: Hearing Before the S. Subcomm. on the Constitution, Civil Rights, and Human Rights of the S. Comm. On the Judiciary, 112th Cong. 16 (Sept. 8, 2011) (statement of Judith A. Browne-Dianis, CoDirector of the Advancement Project); see also Stephen Ansolabehere, Effects of Identification Requirements on Voting: Evidence from the Experiences of Voters on Election Day, 42 Pol. Sci. & Pol. 127 (2009). 11