Academic

Johnson on Initiatives & Immigrants

By Lawrence Solum

Kevin R. Johnson (University of California, Davis) has posted The Devastating Impact of the Initiative Process on Latino and Immigrant Communities (California Law Review) on SSRN. Here is the abstract:

This article is forthcoming in a symposium issue of the California Law Review. Although popular in many states, direct democracy remains alive and well. Recent years have seen a fascinating twist in the deployment of initiatives. In pursuit of a conservative political agenda, activists have begun to employ initiatives as a last resort to head off civil rights gains of racial and other minorities. Showcase examples include the rejection of affirmative action by the voters of California and Michigan through initiatives after courts declined to bury race-conscious admissions in higher education. Similarly, in response to governmental policies believed by many voters to be too liberal, immigrants - disproportionately Latina/o in modern time - also have suffered initiative setbacks with reduced access to public benefits and services, English-only laws, and the elimination of bilingual education in the public schools.

This article focuses on the devastating impacts of lawmaking by initiative on Latina/os and immigrants. The question is whether there is anything to be done to help ensure fundamentally fair treatment of political minorities, especially discrete and insular minorities who may be discriminated against and punished with impunity by the majority in the electoral process.

Latina/os are minorities who often have suffered the disfavor of the majority in the political process. Their lack of political power as a minority is exacerbated by the fact that a significant portion of the community is composed of noncitizens, who lack the right to vote. Immigrants themselves historically have been nothing less than sitting ducks for fear and loathing, which has repeatedly resulted in their harsh treatment in U.S. history.

Part I of the article outlines the special political process defects that severely handicap Latina/os and immigrants in the United States. Part II offers concrete illustrations of the operation of the process defects. The article demonstrates that the political difficulties facing Latina/os and immigrants, many of whom are barred from voting and thus experience the diminution of their raw political power, are greater in direct democracy than those facing racial and other minority groups that lack a significant noncitizen component. To ameliorate the political process defects diluting the electoral power of people of color and immigrants, Part III advocates more scrutinizing - and less deferential - judicial review of initiatives that implicate the rights of Latina/os, as well as other racial minorities, and immigrants.

Full post as published by Legal Theory Blog on March 18, 2008 (boomark / email).