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Initiative & Referendum (Facts and Issues attachment)
Initiative & Referendum
DEFINITION OF TERMS*
In the direct initiative, once the necessary signatures have been obtained, the proposed law or amendment is placed on the ballot.
In the indirect initiative, the completed petition must be submitted to the legislature which then must enact the proposed measure or ore substantially similar. If the legislature fails; to act within a set time, the question is put on the ballot.
The advisory initiative is used as a non-binding reflection of public opinion.
Referendum, sometimes called a plebiscite - a process which allows the voters to accept or reject a statute or constitutional amendment passed by the legislature. There are four types: petition, optional, compulsory, and advisory.
In the petition referendum, the constitution provides that laws passed, except emergency measures, will not go into effect for a specified period, usually 90 days. During this time, petitions may be circulated calling for the law to to referred to the people at a special election or at the next general election. If the required signatures are obtained, the law is held in abeyance pending the outcome of the election.
In the optional referendum, the legislature is permitted to call for a referendum on any measure it has passed.
The compulsory referendum is required by some state constitutions. Certain types of legislation, such as constitutional amendments, levying of taxes, bond issues, moving state or county capitals, must be referred to the people.
The advisory referendum is like the advisory initiative except measures are proposed by the governmental body.
* Initiative and referendum will sometimes be referred to as I and R or as direct legislation.
Direct democracy is at least as old as the Greek city-state, where each free male citizen participated directly in making laws and could expect to take his turn in public affairs. In the United States in colonial times, laws made by governing bodies were affirmed or rejected by the "whole body of the free men," as in Plymouth Colony.1 The New England town meeting still survives, but such practices are not feasible for larger political entities.
1 Numbered footnotes correspond to references listed in the bibliography on the last page.
One of the most marked features of the evolution of government in the United States was popular dissatisfaction with state legislatures during the late 19th century. Many people felt that the legislatures were no longer representative of the people but were instead dominated by political bosses and special interests, such as the railroads. This growing dissatisfaction coincided with the growth of the labor movement and several strong "people's parties." Populist ideas peaked between the Civil War and World War I, then subsided and may again be on the rise.
Adding to the surge in the populist or progressive reform movement was a series of articles which appeared in England on the use of direct legislation in Switzerland. By 1888 the Swiss system of direct legislation was well known to many groups in the United States and England, and there was wide discussion about the desirability of adopting it as a defense against unpopular legislation. Switzerland had used the referendum in some cantons, political divisions corresponding to states, since the 16th century. Measures of national importance have to be submitted to popular vote if the governments of eight of the twenty-five cantons or if 30,000 voters throughout the country should so petition. This unique power of the Swiss people is attributed to the unusual federation of cantons consisting of French, Italian, German, and Romansch speaking people who united to form the modern Swiss nation. It serves as a pressure release for minorities who can put their case to the people when at odds with the government. Several other countries use the referendum from time to time, but only their governments can initiate the action.2
The first large well-organized body in the United States to favor adoption of I and R at the state level was the American Federation of Labor, which publicly supported it in 1892. Various populist parties and labor organizations also adopted it and it 1898, South Dakota became the first state to add it to its constitution. Twenty-six states have since adopted some form of direct legislation.
No state which has I and R has ever dropped it from its constitution and some states, such as California, Oregon and Washington, use it frequently. Even in states that have not adopted it, it is used at the county and municipal level. Hawaii, which has no I and R for state government, has made it optional at the county level. For example, Kauai and Hawaii counties provide I and R for charter amendments and ordinances; Honolulu county allows only direct initiative for charter amendments; Maui county provides advisory initiative for charter amendments and I and R for ordinances.
In the study The Initiative and Referendum in California, it is stated that "Every type of group representing population interest -- commercial, industrial, financial reform, religious, political -- has made use of the initiative." However, it adds, "...successful initiatives have originated only with substantial interest groups. At the same time the successful initiative must have widespread appeal and must not depart too drastically from established patterns of activity."3
Generally, more people vote on initiative measures than on referenda. The more controversial the issue, the more voter interest is evinced on both types of legislation. However, initiative measures are more likely to be turned down than referenda. It appears that decisions by the legislature are received more favorably than measures proposed by the citizenry.
In California, which uses and R most frequently of all the states, between 1912 and 1974 there was an average of 3.8 initiatives on the ballot per election4 and from 1942 to 1972 no referendum qualified.5 In Oregon, the fourth highest use state, between 1944 and 1974 an average of less than 1.5 initiatives and .5 referenda per election qualified.6 The rate of use in the other states, with the exception of Washington and Colorado, is generally lower. It was never high in some states and the frequency has dropped in all states although there has been a recent resurgence in the number of initiatives proposed in California. The use of the petition referendum is becoming quite rare.) Reasons for the decrease in use have been attributed to the difficulty in obtaining the required number of signatures in the allotted time, high costs, more stringent procedural requirements, or more responsive legislatures.
The variety of legislation voted on covers a myriad of topics. We find Oregonians voting down a sales tax; Oklahomans voting that public officials should be impeached for public drunkenness and excessive use of liquor; Nebraskans voting for conflict of interest legislation and for unicameralism.* (In 1974, proponents of unicameralism in California were unable to collect enough signatures to qualify the measure for the ballot.)
TYPES OF INITIATIVE AND USAGE
Indirect -- In this system the proposal first goes to the legislature which can accept, reject, amend, or fail to take action on it. If the legislature passes the original measure, there is no need for it to appear on the ballot, but if the legislature rejects it or does not act, the citizens must vote on it. If the legislature makes a counterproposal both the original and amended versions go on the ballot and the citizens choose. When this happens there is usually much argument pro and con and this publicity is more likely to make the public aware of the issue.
Direct -- The direct initiative system allows proponents to put a measure on the ballot without its first being considered by the legislature. In some states the legislature meets every other year. In these states the direct system is more practical because if the direct system were to be used, it could take as long as three years to be voted on. Another reason for using the direct system may be to make it harder for a legislature to affect public opinion by rejecting a proposal or confusing the issue by making a counterproposal.
Criticism of the direct initiative is aimed at the "take it or leave it" aspect of the proposals. Some parts of a proposal might be very good but offset by some poor features. The voter must either accept or reject the whole package. If it were first reviewed by the legislature any needed changes could be made.
Advisory -- As stated in the definition, the advisory initiative is used in some states as a kind of public opinion poll on an issue. The results are not binding.
In Maui county, advisory initiative is provided for charter amendments, whereby the people propose the amendment and present the petition to the council. After holding public hearings, the council votes on whether to put the proposal on the ballot or not.
The advisory initiative is used in some states to bring pressure to bear on the legislature supposedly to help guide its decision-making. Since the legislature is not obliged to act, this type of initiative is of limited significance.
Amending the Constitution by Initiative
Thirteen of the twenty-three states having the initiative allow its use to amend the constitution. There is much more resistance to tampering with a constitution than to proposing legislation. Whether this special treatment of a state constitution is justified is debatable. Proponents say that fundamental rights of the citizen are protected by the U. S. Constitution so reiteration of them in state constitutions is redundant. The other items in a state constitution should be open for review and possible change. If people had the power to initiate amendments to the constitution it might reduce the necessity of costly constitutional conventions which do not always accomplish what the citizens desire. In those states in which it is very difficult to call a convention, proponents feel the constitutional initiative would be of benefit.?
* See Facts and Issues: Unicameralism and Other Legislative Reforms, published 1976 by the League of Women Voters of Hawaii.
Opponents feel that the constitution .should be a short document with all the details put into the statutes. They cite the long constitution of the state of California as an outstanding bad example of what can happen when it is too easy to amend the state document. It is true that many times proponents of initiatives prefer to put them in the constitution, but whether a lengthy constitution is the result of initiative power or if it is due to the structure of the constitution is hard to say because other states with no constitutional initiative have even lengthier, more detailed documents.
Legislating by Initiative
The statutory initiative is used to proposed measures that a legislative body will not enact. Of the states that provide for use of the initiative to propose legislation, Ohio, Maine, Massachusetts, Michigan, Nevada, and South Dakota have the indirect initiative only. Washington uses a combination: if a measure is submitted more than four months before an election it goes directly on the ballot; if submitted not less than ten days before the legislature convenes the initiative is considered by the legislature.
Sometimes initiatives are supported by a majority of voters but unlike constitutional initiatives which usually reflect the concern of broad segments of the public, statutory initiatives are more likely to be supported by a special interest.8 The subject of initia tives varies greatly, reflecting the interests of the people of a state, such as fish, forestry, agriculture, environment, antivivisectionist, etc. Many times the proposals are regulatory in nature.
Initiatives prdposed reflect a change of attitude. Following World War II.- there were many proposed concerning veterans. In earlier days, prohibition and like matters were 'subjects of concern. Now marijuana is a major topic, and taxation has always been a popular subject with initiative users. Depending on the constitution, a statutory initiative in one state may be a constitutional initiative in another, or vice-versa.
The basic argument against the use of the statutory initiative is that it is frequently used by minority or special interest groups to circumvent the legislature or governor. Those for its use, however, feel it insures that special interests or minorities will have an opportunity to state their cases and let the public decide on the merits of their proposals.
TYPES OF REFERENDUM AND USAGE
Petition -- Supporters of the referendum by citizen petition point out that though it is generally easier to use than the initiative, it is not used as often. Twenty-four states use this referendum and the citizens of these states feel that although there are drawbacks, it is for the most part regarded as a valuable safeguard. The people can accept, reject, or amend laws enacted by the legislature.
This type of referendum is successful only when there is substantial negative feeling and is not used frivolously to challenge every legislative decision. Perhaps the most frequently cited argument against this type of referendum is that if enough signatures are collected to qualify the petition for the ballot, the law is suspended until after the election. Legislation that would most likely be approved by the voters could be held up by a small organized group. If the referendum is voted on at the next regularly scheduled election it could be delayed as long as a year and a half. If a special election is held, the cost rises accordingly.
But proponents feel it is worth the delay and possible extra cost to keep the legislature from enacting undesirable laws and point out that provisions can be made so that if legislation is truly urgent, it can be exempted from the referendum procedure by an overwhelming vote of the legislature.
Optional -- In some states the legislature may refer legislation to the people for judgement. The voluntary use of the referendum by the legislature is quite controversial. Some state constitutions specifically give their legislature this option. However, it has been used in New York and Illinois whose constitutions did not provide for it, and this use has been successfully challenged in the courts. Based on these decisions, the Attorney General of Hawaii has given the opinion that our state legislature may not use the optional referendum.9
Its use is mainly on controversial issues and this is why it is both lauded and condemned. Those who favor this use of the referendum feel that the people should have the final say in deciding on an issue that arouses strong feelings. They feel this is the main reason for having any kind of referendum.
Opponents say that the legislature is elected to make decisions, especially controversial ones, and should not pass the buck. The legislature should lead and not subject legislation to a popularity contest.
Compulsory -- Since all states except Delaware must refer proposed constitutional amendments to the people, there is little argument against this use of the referendum. Some critics, however, point out that the U. S. Constitution is not amended in this manner.
Many state constitutions require that the legislature submit certain types of legislation to a vote of the people. It is interesting to note that the types of legislation which some states either must refer to the people or on which direct legislation is allowed are identical to the types on which other states forbid citizen action, such as the recall of judges, certain taxation measures, judicial functions, and election procedures.
Proponents feel the types of legislation specified for compulsory referendum are too important to leave to the legislature, while opponents feel these subjects are too important to leave to the average citizen. The lengthy list of ballot measures in some states is usually the result of proposals placed there by the legislature, using either the compulsory or optional referendum provisions in their constitutions.
Advisory -- This referendum is similar to the advisory initiative except the measure is placed on the ballot by a legislative body. Arguments for and against it are much the same as for the optional.
THE MECHANISM OF I AND R
States vary greatly in their method of administering the initiative and referendum. Over the years requirements and procedures have changed from state to state as new ideas emerged and problem areas were identified. The following brief summaries of the mechanics of I and R are meant to give an idea of the variation in laws and also to point out what seems to be the common features for a majority of states.
Number of Signatures Required
The most common requirement to qualify putting a proposition on the ballot is to base the number of signatures on the total number of votes cast for governor in the preceding election. A set percentage of signatures, ranging from five percent to fifteen percent, with an average of eight percent, is required for the direct initiative in every state except North Dakota, which simply requires 10,000 signatures. The percentage required for a referendum or indirect initiative is generally lower, and for an initiative to amend the constitution, it is generally higher.
Some states allow "at-large" signatures, setting no geographical requirements as to where signatures must come from. Other states require that there be a certain percentage from a set number of counties to insure that the measure proposed has statewide concern, rather than just that of a small area. This has good and bad aspects since it may accomplish this goal but may also prevent measures of vital concern to a metropolitan area (such as Honolulu county) from qualifying because no interest is generated in the rural areas. It might also increase the expense of collecting signatures.
Limitations on Subject Matter
Many states allow initiatives and referenda on any subject, while others have excluded specific topics, such as appropriation bills that are for the immediate expenses of the state, measures affecting public peace, safety or health, and emergency acts.
In some cases, legislatures have tried to thwart the use of the referendum by claiming that the legislation in question was an emergency measure. Care must be taken to insure that this cannot happen except in the case where legislation is indeed urgent. Some states require measures identified as emergency be passed by a two-thirds majority of the legislature.
Enabling Legislation -- Constitution or Statute?
Constitutions vary considerably in the level of detail with which I and R procedures are specified. Utah, Idaho, South Dakota, and Maryland merely provided for initiative and referendum and left the details of its mechanism to their legislatures. Utah and Idaho had to wait nearly 50 years for their legislatures to pass the enabling legislation. On the other hand, some states outline every procedural detail in the constitution.
According to the 1968 Constitutional Convention study prepared by the Legislative Reference Bureau of the State of Hawaii:
The case for not putting too much detail in the constitution is that when changes in procedure are needed (and in many cases they are) it takes a constitutional amendment. This argument states that only the most important features of the legislation should go into the constitution and the details into the statutes.
Circulation of Petition
Some constitutions go into considerable detail as to who may circulate and sign petitions. Most states say that any "eligible voter" may sign but there is a problem in interpretation as to who is an eligible, voter. This is an important issue because if signatures must be from registered voters, as opposed to all who are over 18 years of age, the difficulty obtaining the required number is increased.
Some states prohibit paid circulators, hoping to lessen the advantage of monied interests but this is hard to enforce as some organizations have access to member-workers who are not always volunteers. It also makes it extremely difficult for small or less-organized groups to mount a campaign.
Filing and Review of Petition
Most state constitutions specify with whom petitions are to be filed and the minimum time prior to the election in which this must be done. The most common requirement is a period not less than four months before the election. At that time the petitions are checked for number and validity.
In some states, when the petitions have been found valid, the proposed legislation is subject to review to see if it is in proper legal form to avoid future litigation. If some change is necessary, the originators of the petitions have the power to approve it. Massachusetts and California require a preliminary review by the State Attorney General before circulation of the petition.
The wording of ballot measures is very important. All too often a proposition has been worded in such a way that a "yes" vote meant opposition and vice-versa, so care must be taken to insure that the wording clearly reflects the intent of the proposal.
The agents in charge of these procedures are usually the secretary of state and the attorney general. California has a legislative analyst who reviews each proposal and estimates its cost, and this figure is included on the ballot.
Publicity and Passage
Many states require statewide distribution at public expense of material summarizing any measure which qualifies for the ballot and arguments on both sides of the issue. Any additional arguments must be paid for by their sponsors.
In most states, a simple majority of those voting on the issue is required for passage. A few require the majority to be based on the total number of votes cast for governor or in some cases, the office attracting the highest number of votes.
To illustrate, if 500 votes were cast on a proposition, 251 for the measure would constitute a simple majority. If the majority is based on those voting for governor, for example, and 1000 votes were cast for governor, 501 affirmative votes would be necessary to pass the proposition.
Legislative Repeal or Amendment and Governor's Veto
There are varying restrictions placed on the legislature by most states when it comes to repealing or amending measures passed by I and R. The controls are usually more stringent when dealing with initiatives than with referenda. Some states have no restrictions, while others require a two-thirds majority of both houses to repeal or amend. Still others set a time limit within which no legislative action can be taken.
In Arizona, the legislature is able to repeal or amend an I or R unless it has been approved by a majority vote of the qualified electors. In North Dakota repeal or amendment is not allowed for seven years from date of enactment unless it is passed by a two-thirds vote of each house. All measures may be amended or repealed by the people at any time.
In states where it is very difficult for the legislature to amend or repeal laws adopted by I and R, there have been recommendations to ease the requirements because changing circumstances and attitudes require that legislation be flexible.
The majority of states with direct legislation specifically do not allow the governor to veto a measure approved by I and R. Other constitutions do not address this issue but few governors would probably wish to do so because such action would seem to be directly opposing the will of the people.
If and I and R Fails
A few states have restrictions on how soon a defeated initiative measure which qualified for the ballot may be resubmitted. Nebraska, for example, forbids placing a defeated measure on the ballot for a period of three years, Wyoming five years. Most states do not have any restrictions. The probable reasons for this are the difficulty in determining when a proposal is the same or similar to a previously proposed measure and who makes this determination. Also, a measure not previously accepted may prove to be appealing to the electorate before the moratorium has expired.
In addition to the technical features, there are some philosophical disagreements about the basic concept of I and R.
Progress or Regressive
In examining some of the laws passed by direct legislation, either by initiative or referendum, we can find evidence of both "progressive" and "regressive" voting. Needless to say, the possible interpretation of what is progressive or regressive depends on the point of view of each person and that point of view is subject to change according to circum stances.
In Oregon, passage of the Scenic Waterways Act by initiative could be viewed as progressive, while passage of an initiative to remain on standard time could be viewed as regressive. Prior to 1965 school bond and tax referenda passed almost automatically over the entire country and in fact, in many cases the people put them on the ballot to counteract unwilling legislatures and local governments.10 This was viewed by many as being progressive. Now, however, the trend to defeat these measures has been growing. This is seen as regressive. Oregonians voted down a cigarette tax three times and then later switched and voted twice to tax their sale. Most people would agree that the legislature was ahead of the people.
Minority or Majority Rule
Another controversy concerns whether I and R lets a minority of the citizenry legislate for the rest.
One study11 indicates that there is usually a drop in the number of people who vote on either initiative or referendum measures when compared to the number of people who vote for candidates for high office, such as governor or president. The study did not state how these percentages compare to the vote for candidates for other state office, such as secretary of state, attorney general, treasurer, etc. The trend is that voter interest declines with the importance of the office.
It is possible that because of apathy a very small minority can legislate for the majority. This is particularly true in special elections called to vote on one referendum and frequently happens at the county and municipal levels.
Enforcing and Financing
If there is insufficient popular support or if there is opposition from the legislature or executive, will a law passed by direct legislation be enforceable?
None of the studies indicated any evidence of overt effort by government to subvert laws enacted by the people nor did they indicate that enforcement is a problem, or at least no moreso than with laws passed by legislatures. The various laws against gambling, prostitution, drinking, etc., whether passed by the people or by governmental bodies, have all run into problems of enforcement when a large percentage of people disagree with them.
When measures involving substantial appropriations are proposed, problems can arise as to where the money will come from. In extreme cases, initiatives could have spelled financial disaster for the state if they had not been rejected by the people, ruled unconstitutional, or overturned by an overwhelming vote of the legislature.
In most states, financing is handled as it would be for a bill passed by the legislature. Another method is that used by Nevada, which requires that any initiative which calls for appropriation or otherwise spends money must also provide for raising the money by tax or other means.
Complexity of Issues
Proponents of I and R feel that the groups proposing or opposing direct legislation may be as well informed, and perhaps more so, than the legislature. They point out that in most cases the legislature enacts laws that have been studied thoroughly by only a few people and that legislators, often rushed and tired, can rarely devote the time and energy required to study every issue in depth. Special interest groups, they say, can and do devote themselves to one issue and be expert on it.
Even though sponsors of a measure offer a take it or leave it package, I and R supporters feel that modifications and compromises have usually already been made by the initiating group. They believe that the campaign itself will educate voters on the issue and stimulate debate and public interest. Minority opinion, they say, will have an opportunity to state its case and take it to the public. They also point out that voters are usually consistent even when faced with similar or conflicting measures on the same ballot, although opponents of I and R disagree and say that in some cases voters have been inconsistent.4
Proponents say there is no evidence to support the charge that voters tire or become confused when faced with a long ballot because initiative measures receive great voter response although they are usually placed at the bottom of the ballot. They feel that though a majority of initiatives fail, it is not because the voters became tired or confused but because they doubted the merits of the measure.
Opponents of direct legislation argue that legislators have a better overall view of the situation and that even. when a measure seems beneficial, the effect on all state programs and goals must be considered. Special interests, they feel, tend to lack this broader perspective and push for their own self interests.
In addition, they express concern that most of the people do not have sufficient knowledge to make a proper decision when dealing with complex matters, and the limitation of space on the ballot makes accurate wording and explanation difficult. The technical language used is another barrier even to the most educated person.* There is further concern that even when voter pamphlets are made available, many will not bother to read them and that use of media advertising can give a one-sided or distorted view of an issue rather than being educational.
* In the constitution of Oregon there is a provision entitled, "Acts to be plainly worded," which states, "Every act and joint resolution shall be plainly worded, avoiding as far as is practicable the use of technical terms."
Cost of Campaign
The cost of conducting a campaign for or against a referendum or initiative measure has been growing. Although some campaigns depend mainly on volunteers, others rely on paid professionals. During the Oregon battle over nuclear power plants in the 1976 election, opponents spent $275,000 and had the help of 2000 volunteers. Proponents of nuclear power plants, who won, spent approximately $1,000,000, or roughly $1 per vote cast on the measure.12
Measures which might prove economically detrimental or advantageous to special interests are more likely to generate high spending than those which deal with topics of a more general nature. Figures were not available to compare the amount spent for ballot issues to that spent for lobbying and other political efforts in which special interests engage, but they are thought to be comparable in many cases.4 With the tighter campaign spending and lobbyist registration laws now in effect in many states, including Hawaii, this information may be available in the future.
Both those for and against I and R are concerned about the problem of cost. Opponents say that the side spending the most money usually wins. Proponents admit this does happen all to often but point out that this is also true in campaigns for elected office, yet few people seriously consider abolishing elections.
Effect on Representative Government
A major argument against any type of direct legislation is that it weakens the legislature. Opponents say that a legislature should lead as well as reflect public opinion. In many cases the public has shown itself to be cautious, conservative, and frugal.2 If the government did not take the lead, it is argued, many innovative and progressive measures would have to wait for the time when public opinion caught up to the need. Opponents feel that I and R makes a legislature• more hesitant to act and allows it to shirk its responsibility.
However, one study5 of the initiative concludes that there is little difference in the ratings between state legislatures who have direct legislation and those that do not. The difference that exists is in favor of states which have it. Since the rating methods used are open to challenge, perhaps the most that can be said is that the use of the initiative does not impair legislative function and possibly strengthens it.
Another argument against I and R is that it undermines representative government. Early opponents felt so strongly about this that they brought suits to abolish it. The suits eventually reached the Supreme Court, which ruled that I and R is not incompatible with the concept of representative government.13
The initiative and referendum process evokes strong feelings on both sides. It is jealously guarded by many and looked upon with suspicion by others. The most compelling arguments against it seem to be that it can sometimes be a more unpredictable, costly, and time-consuming procedure than the enactment of laws by a legislature. It certainly can be less efficient. Strong arguments for it state that it makes the voice of the people more efficient and serves as a last resort when government is or seems to be unresponsive. It lets people who are interested have an opportunity to directly influence the laws which govern them.
How one feels about the subject seems to depend more on one's philosophy of government rather than any merits or deficiencies inherent to I and R. Those who see it as a panacea for the ills of government will most likely be disappointed. Those who see it as a threat to sound government will find that no state which espouses it has yet to succumb to the foibles of its citizenry.
(The numbered references correspond to cited references throughout the text. Unnumbered listings were used as general reference material and are by no means inclusive.)
FACTS AND ISSUES. Published by the League of Women Voters of Hawaii, 1232 Waimanu Street, Honolulu, Hawaii 96814. 500 each copy. This publication may not be reproduced without permission of the League of Women Voters of Hawaii.
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