initiative and referendum

In 1901 the Tennessee General Assembly enacted a statute apportioning the Senate with thirty-three members and the House of Representatives with ninety-nine members among the state's ninety-five counties. The Tennessee Constitution required a decennial enumeration of qualified voters and reapportionment of both houses on that basis. The General Assembly performed reapportionments after the enumerations of 1871, 1881, and 1891. After 1901 every proposal for reapportionment failed to pass. Between 1901 and 1960 the state's population grew from 2,020,616 to 3,567,089. The number of persons eligible to vote rose from 487,380 to 2,092,891. Substantial redistribution occurred from rural to urban counties. Appellants were residents and qualified voters of the urban counties of Davidson, Hamilton, Knox, Montgomery, and Shelby. They brought a civil action in the United States District Court for the Middle District of Tennessee against the Secretary of State, Attorney General, Coordinator of Elections, and members of the State Board of Elections. The complaint was filed under 42 U.S.C. §§ 1983 and 1988. It alleged that continued application of the 1901 statute debased their votes and denied equal protection of the laws. The complaint sought a declaratory judgment that the statute was unconstitutional. It also sought an injunction against conducting further elections under the statute. Alternative relief included at-large elections or a court-ordered reapportionment. A three-judge district court convened under 28 U.S.C. § 2281 dismissed the complaint. The court held that it lacked jurisdiction of the subject matter and that the complaint failed to state a claim upon which relief could be granted. The court characterized the controversy as a nonjusticiable political question. The Supreme Court noted probable jurisdiction. The case was argued in April 1961, set for reargument, reargued in October 1961, and decided on March 26, 1962.

Washington allows citizens to challenge state laws by referendum. Roughly four percent of Washington voters must sign a petition to place a referendum on the ballot, and each signature must include the signer's address and county of registration. The secretary of state verifies and canvasses the petitions to ensure only lawful signatures are counted. The Washington Public Records Act authorizes private parties to obtain copies of government documents, and the state treats submitted referendum petitions as public records subject to disclosure. In May 2009 Governor Christine Gregoire signed Senate Bill 5688, which expanded the rights and responsibilities of state-registered domestic partners, including same-sex domestic partners. That same month Protect Marriage Washington organized as a state political committee to collect signatures for a referendum on the bill. On July 25, 2009, Protect Marriage Washington submitted a petition containing over 137,000 signatures. The secretary of state determined the petition contained enough valid signatures, the referendum known as R-71 appeared on the November 2009 ballot, and voters approved the bill by a margin of 53 percent to 47 percent. By August 20, 2009, the secretary of state had received requests for copies of the R-71 petition from an individual and four entities, including Washington Coalition for Open Government and Washington Families Standing Together. Two entities issued a joint press release stating their intention to post the names of the R-71 petition signers online in a searchable format. The referendum petition sponsor and signers filed a complaint and motion for preliminary injunction in the United States District Court for the Western District of Washington. Count I of the complaint alleged the Public Records Act is unconstitutional as applied to referendum petitions generally. Count II alleged the Act is unconstitutional as applied to the Referendum 71 petition because signatories faced a reasonable probability of threats, harassment, and reprisals. The district court granted a preliminary injunction on Count I. The Ninth Circuit reversed that decision on Count I. The Supreme Court granted certiorari.

In 1963, the Mulkeys filed an action in California superior court against Reitman and other property owners under sections 51 and 52 of the Civil Code. They alleged that the owners had refused to rent them an apartment solely because of their race and sought an injunction and damages. After the filing of the complaint, California voters approved Proposition 14 in the November 1964 statewide election, which added section 26 to Article I of the California Constitution. The defendants moved for summary judgment, asserting that the new provision had rendered the statutory claims invalid. The trial court granted the motion, and the Mulkeys appealed to the California Supreme Court. In December 1964, the Prendergasts filed a separate suit in superior court against Snyder to enjoin their eviction from an apartment. They alleged that the eviction was motivated by racial prejudice and would violate sections 51 and 52 of the Civil Code. Snyder filed a cross-complaint seeking a judicial declaration that he was entitled to terminate the month-to-month tenancy even if his action was based on racial considerations. The trial court dismissed the cross-complaint with prejudice after concluding that judicial enforcement of a racially motivated eviction would violate the Equal Protection Clause, without addressing the validity of Proposition 14. Snyder appealed to the California Supreme Court. The California Supreme Court heard the two cases together. In the Mulkey appeal it reversed the trial court's grant of summary judgment. In the Prendergast appeal it affirmed the dismissal of the cross-complaint. The United States Supreme Court granted certiorari to review the judgments because the cases presented an important issue under the Fourteenth Amendment. Prior to the adoption of Proposition 14, the California Legislature had enacted several statutes addressing racial discrimination in housing. The Unruh Act of 1959 prohibited certain discriminations in business establishments. The Rumford Fair Housing Act of 1963 prohibited racial discriminations in the sale or rental of private dwellings containing more than four units and was enforceable by the State Fair Employment Practice Commission. Proposition 14 provided that neither the State nor any subdivision or agency thereof shall deny, limit or abridge the right of any person to decline to sell, lease or rent residential real property to such person or persons as he in his absolute discretion chooses. The two cases arose after the passage of Proposition 14 and presented challenges to its effect on prior antidiscrimination legislation and on claims of racial discrimination in housing.