Ballot Measures as Institutions of Mass Legislation

In practice, ballot measures, such as referendums and initiatives, have frequently been associated with populist rhetoric or elite manipulation. From the perspective of democratic theory, they have been judged as mechanisms of ‘direct democracy’, as supplements to ‘representative democracy’, or as failures of ‘deliberative democracy’. However, the recent systemic turn in democratic theory has made explicit the limits of “models-based thinking” (Warren, 2017, p. 39). What role should ballot measures play in democratic systems? I contend that ballot measures are not processes of administrative rule-making or judicial review but rather appear best described as legislation, the process of transparently changing the law (Waldron, 2016). I suggest that Jeremy Waldron’s principles of legislation can also serve as the basis for a democratic theory of ballot measures. However, since we cannot simply transpose principles of legislation that were developed for legislatures to ballot measures, we need a theory of ballot measures as institutions of mass legislation. I suggest that synthesizing principles of legislation and election makes it possible to theorize how ballot measures might be designed to provide a democratically-functional equivalent to legislatures. Understanding ballot measures as institutions of mass legislation allows us to move past the conflicting judgments of ballot measures that have their origins in distinct models of democracy and provides a coherent set of principles for evaluating these institutions and guiding reform efforts.