Initiatives and referendums in the United States
In the politics of the United States, the process of initiatives and referendums allow citizens of many U.S. states to place new legislation on a popular ballot, or to place legislation that has recently been passed by a legislature on a ballot for a popular vote. Initiatives and referendums, along with recall elections and popular primary elections, are signature reforms of the Progressive Era; they are written into several state constitutions, particularly in the West.
The Progressive Era was a period marked by reforms aimed at breaking the concentrated power, or monopoly, of certain corporations and trusts. Many Progressives believed that state legislatures were part of this problem and that they were essentially "in the pocket" of certain wealthy interests. They sought a method to counter this—a way in which average persons could become directly involved in the political process. One of the methods they came up with was the initiative and referendum. Between 1904 and 2007, some 2231 statewide referendums initiated by citizens were held in the USA. 909 of these initiatives have been approved. Perhaps even greater is the number of such referendums that have been called by state legislatures or mandatory—600 compared to 311 civic initiatives in 2000-2007.
Types of initiatives and referendums
Initiatives and referendums—collectively known as "ballot measures," "propositions," or simply "questions"—differ from most legislation passed by representative democracies; ordinarily, an elected legislative body develops and passes laws. Initiatives and referendums, by contrast, allow citizens to vote directly on legislation.
An initiative is a means through which any citizen or organization may gather a predetermined number of signatures to qualify a measure to be placed on a ballot, and to be voted upon in a future election. (These may be further divided into constitutional amendments and statutory initiatives. Statutory initiatives typically require fewer signatures to qualify to be placed on a future ballot.)
Indirect initiated state constitutional amendment
The initiative process, for proposing constitutional amendments, may be "direct" or "indirect". States that permit indirect constitutional amendments, like Mississippi, permit legislators to propose an alternative amendment which is placed on the ballot alongside the direct citizen proposal.
Initiated state constitutional amendment
An initiated constitutional amendment is an amendment to a state's constitution that results from petitioning by a state's citizens. By utilizing this initiative process, citizens can propose and vote on constitutional amendments directly, without need of legislative referral. When a sufficient number of citizens have signed a petition requesting it, a proposed constitutional amendment is then put to the vote.
In the United States, while no court or legislature needs to approve a proposal or the resultant initiated constitutional amendment, such amendments may be overturned if they are challenged and a court confirms that they are unconstitutional. Most states that permit the process require a 2/3 majority vote.
Not all amendments proposed will receive sufficient support to be placed on the ballot. Of the 26 proposed petitions filed in the state of Florida in its 1994 general election, only three garnered sufficient support to be put to the vote.
Popular Referendum, in which a predetermined number of signatures (typically lower than the number required for an initiative) qualifies a ballot measure for repealing a specific act of the legislature.
Legislative referral (aka "legislative referendum"), in which the legislature puts proposed legislation up for popular vote (either voluntarily or, in the case of a constitutional amendment, as a necessary part of the procedure.) With the exception of Delaware, 49 US states allow legislatively-referred state constitutional amendments.
Nevada is the only state to allow for statute affirmation. The statute affirmation allows the voters to collect signatures to place on ballot a question asking the state citizens to affirm a standing state law. If a majority of state citizens vote to affirm the law, the state legislature will be barred from ever amending the law, and it can be amended or repealed only if approved by a majority of state citizens in a direct vote.
An automatic referral is question that is legally required to automatically be placed on the ballot. Many states have laws in their constitution requiring a question to hold a constitutional convention to appear before the voters after a scheduled amount of time.
Objections to the system
The initiative and referendums process have critics. Some argue that initiatives and referendums undermine representative government by circumventing the elected representatives of the people and allowing the people to directly make policy: they fear excessive majoritarianism (tyranny of the majority) as a result, believing that minority groups may be harmed.
Other criticisms are that competing initiatives with conflicting provisions can create legal difficulties when both pass; and that when the initiatives are proposed before the end of the legislative session, the legislature can make statutory changes that weaken the case for passing the initiative. Yet another criticism is that as the number of required signatures has risen in tandem with populations, "initiatives have moved away from empowering the average citizen" and toward becoming a tool for well-heeled special interests to advance their agendas. John Diaz wrote in an editorial for the San Francisco Chronicle in 2008:
There is no big secret to the formula for manipulating California's initiative process. Find a billionaire benefactor with the ideological motivation or crass self-interest to spend the $1-million plus to get something on the ballot with mercenary signature gatherers. Stretch as far as required to link it to the issue of the ages (this is for the children, Prop. 3) or the cause of the day (this is about energy independence and renewable resources, Props. 7 and 10). If it's a tough sell on the facts, give it a sympathetic face and name such as "Marsy's Law" (Prop. 9, victims' rights and parole) or "Sarah's Law" (Prop. 4, parental notification on abortion). Prepare to spend a bundle on soft-focus television advertising and hope voters don't notice the fine print or the independent analyses of good-government groups or newspaper editorial boards ... Today, the initiative process is no longer the antidote to special interests and the moneyed class; it is their vehicle of choice to attempt to get their way without having to endure the scrutiny and compromise of the legislative process.
In some cases, voters have passed initiatives that were subsequently repealed or drastically changed by the legislature. For instance, legislation passed by the voters as an Arizonan medical cannabis initiative was subsequently gutted by the Arizona legislature. To prevent such occurrences, initiatives are sometimes used to amend the state constitution and thus prevent the legislature from changing it without sending a referendum to the voters; however, this produces the problems of inflexibility mentioned above. Accordingly, some states are seeking a middle route. For example, Colorado's Referendum O would require a two-thirds vote for the legislature to change statutes passed by the voters through initiatives, until five years after such passage. This would allow the legislature to easily make uncontroversial changes.
An objection not so much to the initiative concept, but to its present implementations, is that signature challenges are becoming a political tool, with state officials and opposing groups litigating the process, rather than simply taking the issue fight to voters. Signatures can be declared void based on technical omissions, and initiatives can be thrown out based on statistical samplings of signatures. Supporters lacking necessary funds to sustain legal battles can find their initiative taken off the ballot.
Legislatures themselves may tighten already arduous requirements. E.g., while California or Oregon typically have dozens of ballot measures each year, Idaho has had 28 since the 1930s, of which twelve passed. The Idaho Legislature in 2013 however increased the geographical requirements for putting an initiative on the ballot after a trio of unpopular education laws ("Students Come First") were repealed by the voters. Despite the new requirement of the signatures of 6% of the registered voters in 18 of Idaho's 35 legislative districts before May, as of mid-April 2018 the drive to put the Medicaid gap before the voters on the November ballot (by way of their amending the state constitution, yea or nay) was well on its way to gathering the prerequisite number of signatures in the prerequisite number of legislative districts, much to the surprise of pundits. Ultimately the organizers had by the April 30 deadline delivered 60,000 signatures to county clerks' offices, which if verified are far more than the 56,192 required.
Some proposed reforms include paying signature gatherers by the hour, rather than by the signature (to reduce incentives for fraud) and increasing transparency by requiring major financial backers of initiatives to be disclosed to potential signatories. Other proposals include having a "cooling-off" period after an initiative qualifies, in which the legislature can make the initiative unnecessary by passing legislation acceptable to the initiative's sponsors. It has also been proposed that proxy voting be combined with initiative and referendum to form a hybrid of direct democracy and representative democracy.
The Ludlow Amendment was a proposed constitutional amendment drafted by Indiana congressman Louis Ludlow allowing for a referendum after a congressional declaration of war. It reached its peak public approval rating in the 1930s in an effort to maintain American isolationism in the years before the Second World War.
Citizens' Initiative Review
Healthy Democracy, and a similar organization in Washington State, proposed a Citizens' Initiative Review process. This brings together a representative cross-section of voters as a citizens' jury to question and hear from advocates and experts regarding a ballot measure; then deliberate and reflect together to come up with statements that support and/or oppose the measure. The state would organize such a review of each ballot measure, and include the panelists' statements in the voters' pamphlet. Since 2009, Healthy Democracy has led efforts to develop and refine the Citizens' Initiative Review process for use by Oregon voters .
In 2011, the Oregon Legislature approved House Bill 2634, legislation making the Citizens' Initiative Review a permanent part of Oregon elections. This marked the first time a legislature has made voter deliberation a formalized part of the election process. The CIR is a benchmark in the initiative reform and public engagement fields.
Each state has individual requirements to qualify initiatives for the ballot. Generally, all 24 states and the District of Columbia follow steps similar to:
- File a proposed petition with a designated state official
- State review of the proposal and, in several states, a review of the language of the proposal
- Prepare ballot title and summary
- Petition circulation to obtain the required number of signatures
- Petition submitted to state election officials to verify the signatures and qualify the ballot entry
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- Legislatively-referred state statute
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- PFANNENSTIEL, KYLE (2018-04-14). "Medicaid expansion petition 6,000 away from target, still need to wrap up 11 districts". Idaho-Press Tribune. Retrieved 2018-04-15.
- Russell, Betsy (2018-04-19). "Medicaid expansion initiative in final push, just 5,000 signatures from goal". The Spokesman-Review. Retrieved 2018-04-19.
- Manny, Bill (2018-04-13). "Luke Mayville and his Medicaid for Idaho campaign are proving us political 'experts' wrong". Idaho Statesman. Retrieved 2018-04-14.
- Manny, Bill (2018-05-01). "60,000 signatures & counting: How did the upstart Medicaid expansion campaign do it?". The Idaho Statesman. Retrieved 2018-05-01.
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