Begging the Question: Judicial Review of Ballot Questions for Referred State Constitutional Amendments in Wisconsin

Abstract

Among the most powerful instantiations of popular sovereignty is the people’s right to amend their state constitutions. In Wisconsin, the legislature refers proposed state constitutional amendments to the electorate, who decide whether to ratify based on a brief ballot question. Because a single question often cannot inform voters of the scope or import of an amendment with multiple provisions, voter consent to constitutional amendments becomes a legal fiction, especially where ballot questions are vague, incomplete, or misleading. Insufficient ballot questions that obscure or misrepresent the underlying amendment allow the legislature to manipulate the referendum process. This practice erodes popular sovereignty and abrogates constitutional accountability mechanisms. Effective procedural safeguards are thus necessary to legitimize referenda outcomes. However, the Wisconsin Legislature has created few statutory procedural safeguards to ensure accurate, clear, and complete ballot questions. Additionally, the Wisconsin Supreme Court’s inconsistent approach to judicial review of ballot questions renders these limited safeguards largely ineffective. State constitutional amendment epitomizes a high-stakes, lowinformation process. With the proliferation of state constitutional amendments, often involving polarizing and significant policy issues, preserving state constitutions’ structural commitment to popular sovereignty in the referendum process has become increasingly important. State courts can best preserve this commitment by ensuring that legally sufficient ballot language elicits voter consent to the underlying amendment. Because the Wisconsin Constitution requires voter consent to ratify constitutional amendments, the Wisconsin Supreme Court has a constitutional duty to ensure that ballot questions elicit that consent. This Comment argues that rigorous pre-election judicial review of ballot language is imperative to combat legislative subversion of popular sovereignty in Wisconsin’s constitutional amendment process.