This Note discusses the constitutional significance of the Guarantee Clause of Article IV, Section 4, which states that "[t]he United States shall guarantee to every State in this Union, a Republican Form of Government." For decades, the United States Supreme Court has held that the Guarantee Clause presents a nonjusticiable political question in the federal courts. Notwithstanding this federal doctrine, the Guarantee Clause remains justiciable in the state courts.
State ballot initiatives are vulnerable to uses that violate the Guarantee Clause's protection of the republican form of government. This Note presents a three-part argument. First, the Guarantee Clause provides critical structural protections for the individual rights of minority voters by ensuring the process of deliberative decision-making by a representative legislature necessary to the republican form of government. Second, under both the Guarantee Clause itself and the Supremacy Clause, state courts are constitutionally required to adjudicate challenges brought to state ballot initiatives like Colorado's Amendment 2 and California's Proposition 8 that may violate this structural protection. Finally, because the constitutional injury to minority voters is inflicted by the placement of their rights on the ballot for a majority plebiscite, and because the balancing test inherent in judicial review for Bill of Rights violations is inappropriate for the Guarantee Clause's structural protections, pre-election judicial review under the Guarantee Clause must be available in the state courts.
Anya J. Stein,
The Guarantee Clause in the States: Structural Protections for Minority Rights and Necessary Limits on the Initiative Power,
37 Hastings Const. L.Q. 343
Available at: https://repository.uchastings.edu/hastings_constitutional_law_quaterly/vol37/iss2/4