arrowSection 7.3 - Direct Democracy

This topic is monitored by Moritz Law Professor Dale A. Oesterle

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Ballot Measures: Initiatives and Referendums

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Ballot measures are those items on a ballot that do not call for a vote for or against a candidate for office. The measures ask for a vote on a specific law or a specific amendment to a constitution. The authority to pose ballot measures is found in state constitutions. There are two major categories of ballot measures—initiatives and referendums—and each major category contains important subcategories. The initiative and referendum procedures are occasionally described as direct democracy.

Constitutional provisions providing for initiatives authorize citizens to collect signatures on petitions and, with enough valid signatures, to place laws 1  or constitutional amendments on the ballot for citizens to adopt or reject. Constitutional provisions providing for referendums enable citizens to ratify or reject laws or constitutional amendments proposed by a state or local government legislative body.

Initiatives Defined

The constitutions of twenty-four states provide for some form of an initiative procedure. Eighteen have a procedure for amending the state constitution and twenty-one have a procedure for enacting statutory law.

The eighteen states with an initiative amendment process are divided into two groups. Sixteen of these states have a direct initiative amendment process and two have an indirect initiative amendment process. The direct initiative process enables citizens to place proposed amendments on the ballot; the indirect initiative process requires citizens to submit proposed amendments to the state legislature for consideration before the amendment is placed on the ballot.

The twenty-one states with a statutory initiative process are also split—there are twelve states with a direct statutory initiative process (12 states), seven states with an indirect statutory initiative process (7 states), and two states with both. In a direct initiative statute, the citizens’ proposal is placed on the ballot; in an indirect initiative statute, the citizens must submit their proposal to the state legislature for consideration before the proposal is placed on the ballot. The legislature has a set period of time to adopt or reject the indirect initiative proposal. If the legislature adopts the proposal, it becomes law (subject to referendum). If the legislature rejects the proposal or fails to act within a set period of time the measure is placed on the ballot.

Successful statutory initiatives are not as permanent as successful initiative amendments. State legislatures can amend or repeal statutory initiatives but cannot touch initiatives that amend the state constitution. Eleven states allow their legislatures to repeal a statutory initiative at any time after its adoption by a simple majority in both houses. Other states impose a two or three year legislative freeze or require a supermajority vote of two-thirds or three-fourths of both houses.

Each state has its own rules for the initiative process and although the variations are significant, there are five basic steps that are common to every state:

  1. Filing of a proposed initiative with a designated state official;
  2. Official review of the initiative language for compliance with constitutional and statutory requirements;
  3. Circulation of the petition to obtain a minimum number of required signatures;
  4. Submission of the petition signatures to a state elections official for verification; and
  5. Printing of the initiative and its title on the ballot and subsequent popular vote.

In step one, depending on the state, state officials may review the petitions for form, language, and constitutionality. However, in all but four states the review is only advisory. Since every state has some form of subject limitation, these reviews are significant and can carry weight in a later court challenge. Several states, for example, impose a “single subject rule” for initiatives.

Central to the initiative process is the gathering of the required number of valid signatures. The circulation period in step three ranges from 64 days in Massachusetts to an unlimited period in Utah. California’s circulation period is 150 days. Most states have pre-election deadlines for submitting the signatures.

All states set the signature threshold at a percentage of the voting public. Some take a percentage of the number of registered voters, others take a percentage of the number of votes cast for a designated state office (usually for governor) in the last election. The thresholds based on registered voters vary from a high of 15% of qualified voters in Wyoming to a low of 2% of the state’s resident population in North Dakota. The thresholds based on votes cast vary from a low of 3% in Massachusetts to a high of 15% in Arizona and Oklahoma. Most states require a higher percentage of signatures for a constitutional initiative than a statutory initiative. The average number of signatures required for a statute is 7% of the votes cast and, for a constitutional amendment, 9% of the votes cast.

Limits on the collection of signatures can significantly increase the difficulty of gathering signatures. Some states, for example, limit when and where signatures can be collected, often prohibiting collection at polling locations, a very convenient and efficient place to gather valid signatures. Other states require some geographic distribution of signatures, often mandating a specified number of signatures from each of a certain number of counties or districts. None of the six states in which more than 60% of the initiatives have appeared on the ballot have a geographical distribution requirement.

As the politically astute well know, the wording of an initiative’s ballot title in step five can demonstrably affect the final outcome of the vote. Most states set the ballot title only after proponents turn in their signatures. In some states, the proponents get to recommend a title with approval left to the state; in most states government officials write the ballot title. Because of the high stakes attached to wording of the ballot title, a court, regardless of who is entitled to write the title, must frequently determine the exact language that appears on the ballot.

Once an initiative is on the ballot, most states require only a majority of the votes cast on the measure for passage. Several states also require an absolute number of votes, tied to a percentage of the total votes cast in the election. Massachusetts, for example, requires that the affirmative votes on a ballot measure also equal 30% of the total votes cast in the election.

Referendums Defined

There are two types of referendums. All states have some form of legislative referendum and twenty-four states have popular referendum procedures.

In a legislative referendum the state legislature (or a state official, agency, department, or commission) submits (refers) propositions to the people for their approval. The submissions may be constitutional amendments, statutes, bond issues, or even non-binding memorials. Those legislative referendums that contain constitutional amendments are known as legislative amendments and those legislative referendums that contain binding and non-binding statutes or bond issues are known as legislative statutes.

The constitutions of twenty-four states also provide for a popular referendum process. In this procedure, citizens objecting to specific legislation passed by the state legislature may submit (or refer) the law to a popular vote on whether the law should be annulled.

The History of Initiative and Referendum 2 

Legislative referendums on constitutional matters are as old as the country. Thomas Jefferson proposed, unsuccessfully, a legislative referendum for the 1775 Virginia State Constitution. The first state to hold a statewide legislative referendum was Massachusetts in 1778. New Hampshire held the second in 1792; Connecticut the third in 1818; Maine and New York the fourth and fifth in 1819 and 1820 respectively. All but three states that entered the union after 1830 established legislative referendum procedures and required voters to approve their constitutions. Congress required that voters approve all new state constitutions proposed after 1857. At present, every state has the legislative referendum process in place for constitutional amendments or ratifications.

The Populist Party of the 1890s proposed a number of political reforms designed to make government more accountable and responsive to popular sentiments. Taking their cue from the 1848 Swiss Constitution, the party championed the initiative and the popular referendum procedures. Historians trace the origins of the proposal to public advocacy in 1885 by Father Robert Haire, a priest and labor activist from Aberdeen, South Dakota, and Benjamin Urner, a newspaper publisher from New Jersey.

The success of the Populist Party in American politics was very short-lived, but it was enough to leave the initiative and referendum processes as its legacy. In 1897, Nebraska became the first state to authorize initiatives and popular referendums, permitting cities to put the procedures in their charters. In 1898, South Dakota became the first state to adopt statewide initiative and popular referendum processes. Oregon authorized the procedures in 1902 and Montana in 1906. Oklahoma was the first state to provide for initiative and popular referendums in its original constitution, adopted in 1907.

A flood of adoptions followed, mostly in the Western states. California added the procedures to its constitution in 1911. By 1918, twenty-four states had initiative and referendum language in their constitutions. Efforts to adopt the procedures had failed in Wyoming, Mississippi, Minnesota (twice), Wisconsin, and Texas.

However, adoptions stopped abruptly in 1918 and no new state adopted the procedures until Alaska included them in its new constitution in 1959. A bare trickle of adoptions continue today. The last three adoptions were Wyoming in 1968, Florida in 1972, and Mississippi, twenty years later in 1992. Minnesota refused (for a third time) to adopt the processes in 1980 and the adoption also failed in Rhode Island in 1986. Currently, there are twenty-seven states that have some form of initiative or popular referendum language in their constitutions.

In a number of states where the populists where unable to gain passage of statewide amendments, they prevailed at the local level. San Francisco and Los Angeles had initiative and referendum procedures in place before California did, in 1898 and 1903 respectively. Grand Rapids, Michigan adopted the procedures in 1905; Des Moines, Iowa in 1906; and Cedar Rapids, Iowa and Wilmington, Delaware in 1907.

While, the District of Columbia adopted the procedure in 1977, there is no national initiative or referendum process in the United States. Only four of the world’s other democracies—India, Israel, Japan, and the Netherlands—also lack the procedures. There have been and continue to be recurring efforts in the United States for a national initiative and referendum.

See a chart detailing the initiative and referendum procedures of the states, created by the Initiative & Referendum Institute 3 

Modern Usage

Citizens use the initiative process much more frequently than the popular referendum process. The use of the initiative process has shown significant variability. There was a flurry of initiative activity after the procedures were adopted, in the second decade of the twentieth century (89 initiatives were on state ballots in 1914), and then usage steadily declined to a low in the 1960s. Citizens awoke to the power of the initiative in 1978 with the passage, in California, of the very controversial Proposition 13. Since 1978, initiative usage has varied by election but, overall, has shown steady activity. There was a “high water mark” set in 1996 of 93 statewide initiatives. In November of 2004 voters will decide on 60 state initiatives, up from the 53 that appeared on ballots in 2002.

Aggregate numbers on initiatives tell an interesting story. 4  Only about one quarter of all initiatives filed with state officials ultimately qualify to appear on the ballot. Of this one quarter, only about 40% pass (approximately 10% of those filed). Over 60% of all initiative activity takes place in just six of the twenty-four states that have the process—Arizona, California, Colorado, North Dakota, Oregon, and Washington. California lead the states in 2004 election with 12 initiatives on the ballot. Studies on initiatives on state ballots have found that the more the initiatives on the ballots, the higher the voter turnout (increases register at 4% in presidential elections and 8% in midterm elections). 5 

It is easy to find initiatives that evince, well, a chuckle. In 1972, for example, the people of Colorado successfully put and passed an Amendment 10 on the state ballot. This measure prohibited the state from levying taxes and appropriating or loaning funds for the purpose of aiding or furthering the 1976 Winter Olympic Games, even though the International Olympic Committee had selected Denver as the site. A few years later, in 1974, the people of Colorado passed a probably unconstitutional provision, Amendment 8, that demanded that the federal government get a favorable vote from the people of Colorado before exploding nuclear devices in the state. The federal government had, working with the governor, previously detonated two nuclear weapons in old mine shafts in the mountains in an attempt to release natural gas.

The 2004 Election

The hot topic for initiatives in 2004 is marriage, with the ballots in 13 states containing proposals defining marriage as being between and a man and a woman. Missouri voters and Louisiana voters approved their proposals in August (with 71% in favor) and September (with 78% in favor), respectively. In eight of the cases, the ballot measures, in a reversal of form, were placed on the ballot by legislatures (legislative amendments) not by initiatives.

The second most popular topic is gambling. There are 13 measures on the ballots of six states to authorize new forms of or venues for gambling. Voters in six states will face ballot measures on lawsuit reform. Although the measures’ themes are similar, there is significant variety in the details. Amendment 3 in Florida would sharply limit lawyers’ fee percentages in malpractice cases. Wyoming and Oregon have provisions that would limit non-economic damages in medical cases to $500,000. Nevada sports competing measures: Question Three would limit pain and suffering damage awards; Questions Four and Five would repeal medical malpractice reform. In two other states, Colorado and California business interests are squaring off against trial lawyers over construction and consumer litigation, respectively.

Other popular topics include education spending (3 states), hunting (4 states) and marijuana (3 states). The hunting measures are emotionally charged, as hunters and animal right advocates with deeply held convictions debate bear baiting and other issues. In an important development, at least two states have measures that would limit change the initiative procedure itself (one to more it more powerful; another to make it less)

Colorado Amendment 36 has received significant national attention. It would allocate the state’s Electoral College votes proportionately to a candidate’s popular vote, amending the current winner-take-all system. Only two other states, Maine and Nebraska, do not use the winner-take-all system. The measure is written to take effect retroactively to affect the 2004 Presidential race; it could shift four of the state’s nine electoral votes from the winning candidate to the losing candidate (if the race between President Bush and Senator Kerry is even). Since pollsters predict the Presidential race to be very tight at the Electoral College level, the measure, if implemented, could affect the outcome. The state’s GOP leadership has challenged the constitutionality of Amendment 36, arguing that the United States Constitution leaves the procedure to selecting electors to the state’s General Assembly.

Another initiative that has attracted national attention is Proposition 71 in California. The initiative would establish a constitutional right to conduct research using stem cells and authorize a $3 billion bond issue for stem cell research. The bond issue, if approved, would be the largest ever authorized by voter initiative. Some opponents (the California Catholic Conference) rely on moral arguments, others (Dr. Francis Fukuyama) on the claim that the funds would go to a small group of institutions and companies that would remain largely unaccountable for how they spend the money. Supporters have raised more than 10 times the amount raised by opponents.

2004 Election Results

In November the voters in eleven states roundly approved ballot measures curbing same-sex marriage by margins that ran from comfortable to lopsided. The votes to amend state constitutions to define marriage as between a man and a women were, from highest to lowest, Mississippi (86% of the votes cast), Oklahoma and Georgia (76%), Arkansas and Kentucky (75%), North Dakota (73%), Montana and Utah (66%), Ohio (62%), Michigan (59%), and Oregon (57%). Gay rights advocates are considering court challenges, particularly in Ohio, which may prohibit not only same-sex marriages but also same–sex civil unions.

Some in the media are attributing the victory of George Bush in the presidential race to the gay rights ballot measures. 6  The view is that the measures encouraged conservative and evangelical Christian voters to appear at the polls and an overwhelming majority of them also voted for the re-election of President Bush.

California voters approved Proposition 71 raising $3 billion for stem cell research. Voter defeated a proposition relaxing the state’s “three strikes” law for repeat criminal offenders. Colorado voters approved a ballot measure that requires utilities to gather at least 10% of their power for electricity from renewable resources by 2015.

In Arizona voters approved a fiercely contested ballot measure, Proposition 200, that requires proof of citizenship when registering to vote and denies specified state and local benefits to undocumented immigrants. The Courts struck down a similar initiative in California in 1994.

Voters in only one of the three states with ballot measures on marijuana, Montana, approved usage (for medicinal purposes). In both Main and Alaska the hunters prevailed in ballot measures on the use of bait in bear hunting.

In Florida, voters approved a constitutional amendment on abortion, paving the way for parental notification of minors, and approved a $1 increase in the minimum wage. Limits on medical malpractice also won in Florida, as well as Nevada. Oregon and Wyoming measures on the matter are too close to call.

Voters rejected several measures on elections: There will be no proportional allocation of presidential electors in Colorado and no open primary in California. And the voters in several states (Arizona had two on the ballot) rejected changes to the initiative process.

Finally, the sleeper ballot measure of the election season was the Arizona measure on a partnership between state universities and business. Proposition 102 would allow Arizona universities to own shares in private companies that were started by university sponsored technology programs. The state constitution prohibits universities from owning he stock of private companies. The voters of Arizona defeated the measure by a vote of 52% to 48% despite widespread support for the measure from politicians, university officials and the business community. It was clearly a warning shot across the bow for all major universities who have, to help with financial troubles, decided to pursue such a strategy. The people do not want their educational institutions to be dominated by venture capital investments.

[Posted November 10, 2004]

Notes

1. Some provisions also provide authority for placing advisory questions or memorials (non-binding laws) on the ballot.

2. For a history of initiatives and referendum in the United States see DAVID SCHMIDT, CITIZEN LAWMAKERS (Temple Univ. Press. 1986). See also LIZ GERBER, THE POPULIST PARADOX (Princeton Press, 1999).

3. This is an excellent website. www.iandrinstitute.org.

4. See What Impact Does Money Have in the Initiative Process?, Initiative & Referendum Institute, at http://iandrinstitute.org/Quick%20Fact%20-%20Money.htm (last visited Nov. 4, 2004).

5. See e.g., Caroline Tolbert et al., The Effects of Ballot Initiatives on Voter Turnout in the American States, 29 AMER. POL. REV. 625 (2001) and Mark Smith, The Contingent Effects of Ballot Initiatives and Candidate Races on Turnout, 45 AM. J. POL. SCI. 700 (2001).

6. E.g., Did Gay Marriage Galvanize Voters?, Wall Street Journal, Nov. 5, 2004 at A5.