This Note considers the outcome in a case where named state official defendants in a similar claim decline to defend the suit, and the sponsors of the initiative are not allowed to intervene. Federal courts are split on the issue of whether to allow intervention as a matter of right to a ballot sponsor under Federal Rule of Civil Procedure 24 (“Rule 24”), the rule governing intervention. The Ninth Circuit Court of Appeals has generally allowed such sponsors to intervene. On the other hand, the Sixth Circuit recently denied the proposed intervention of the sponsor of an anti-affirmative action law in a case challenging the constitutionality of the law, where similar concerns existed about the named defendants’ desire to uphold the law. This Note argues that allowing intervention as a matter of right to sponsors of ballot initiatives to allow them, rather than the named defendants, to defend the constitutionality of the passed law is at odds with the Federal Rules of Civil Procedure as well as public policy and that disallowing such intervention will have a prodigious effect on the rights of all.
Part I provides background on the ballot initiative process and its usage throughout American history, as well as an in-depth analysis of the requirements of Rule 24. Part II discusses the conflicting decisions of the Ninth and Sixth Circuit Courts of Appeals, as well as the current political controversy surrounding ballot initiatives. Part III argues that, because of the overall inadequacy of modern ballot initiatives in capturing the “will of the people,” and because of the general failure of sponsors to meet the requirements of Rule 24, an application for intervention by an initiative’s sponsor should never be granted. Part III ultimately concludes that a suit brought by any party challenging the constitutionality of a passed ballot initiative should be used by the state as a “second-check” on whether the initiative ably communicates the will of the public on that topic.