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Task Force Report

Initiative and Referendum in the 21st Century

 

 

Final Report and Recommendations of the NCSL I&R Task Force, July 2002

 
 

Contents

  1. General Recommendations Regarding the Initiative Process
  2. Involving the Legislature in the Initiative Process
  3. The Subject Matter of Initiatives
  4. The Drafting and Circulation Phase
  5. The Signature-Gathering Phase
  6. Voter Education
  7. Financial Disclosure
  8. Voting on Initiatives

List of Tables

Table 1. States with an Indirect Initiative Process
Table 2. Legislative Amendment and Repeal of Initiated Measures
Table 3. States with Bans on Same/Substantially Similar Initiatives
Table 4. Initiative Subject Restrictions
Table 5. Restrictions on Imposing Fiscal Policies Via the Initiative
Table 6. State Agency Review
Table 7. Drafting the Initiative Title
Table 8. Drafting the Initiative Summary
Table 9. Fiscal Impact Statements
Table 10. Paid/Volunteer Status Must Be Disclosed
Table 11. Circulation Periods
Table 12. Signature Requirements - Statutory Initiatives
Table 13. Signature Requirements - Initiated Constitutional Amendments
Table 14. Method of Signature Verification
Table 15. Voter Information Pamphlets
Table 16. Costs of Voter Information Pamphlets
Table 17. Supermajority Initiative Passage Requirements
 

Preface and Acknowledgments

The NCSL Initiative and Referendum Task Force assumed a difficult task in addressing such a complicated and highly controversial issue. Thanks to the committed leadership of Senator DiAnna Schimek, the task force was able to quickly focus on the most important issues and eventually come to consensus on a set of recommendations. NCSL is indebted to each one of the task force members who contributed their expertise for this project.
 
The task force was a diverse, bipartisan group representing seven of the 24 initiative states as well as the District of Columbia. Its makeup was unique in that it also included industry members. The following legislators, legislative staff, and industry representatives served on the task force:
 
Honorable DiAnna Schimek, State Senator, Nebraska, Task Force Chair
Chris Badgley, Vice President of State Government Affairs, PhRMA, Washington, D.C.
Jerry Barnett, Ph.D., Principal, Thomas-Huntington Ltd, Missouri
Honorable Jim Costa, State Senator, California
Sharon Eubanks, Senior Attorney for Administration, Office of Legislative Legal Services, Colorado
Honorable Marilyn Jarrett, State Senator, Arizona
Patrick Kelly, Director of State Government Relations, Biotechnology Industry Organization, Washtington, D.C.
Tracy Mihas, Manager of I&R and Corporate Issues, Philip Morris Companies, Washington, D.C.
Frank H. Plescia, Senior Director of U.S. State Government Affairs, Monsanto Company, Missouri
Honorable Lane Shetterly, House Speaker Pro Tem, Oregon
Michael Stewart, Senior Research Analyst, Legislative Counsel Bureau, Nevada
 
The task force was fortunate to gain the insight of many individuals who took the time to appear before the group and share their expertise. The task force is grateful to the following witnesses who contributed their time:
 
David Broder, Washington Post, Washington, D.C.
Lois Court, Save our Constitution, Colorado
Neal Erickson, Office of the Secretary of State, Nebraska
Wayne Pacelle, Humane Society of the United States, Washington, D.C.
John Perez, Speaker's Commission on the California Initiative Process, California
Honorable Joe Pickens, State Representative, Florida
Larry Sokol, Speaker's Commission on the California Initiative Process, California
M. Dane Waters, Initiative and Referendum Institute, Washington, D.C.
Joseph F. Zimmerman, State University of New York-Albany, New York
 
Many others helped in the creation of this report, including legislative staff and election officials in initiative states who shared valuable data and took the time to review and confirm information about their states' laws and procedures. Their assistance is greatly appreciated; it contributed to the quality and accuracy of the information in this report.
 
A number of NCSL staff supported the task force in its work, including Jennie Drage Bowser and Kate Rooney in NCSL's Denver office. Leann Stelzer of the NCSL publications department helped edit and prepare the report for publication.
 

Executive Summary

On December 7, 2001, the National Conference of State Legislatures assembled a task force to review the growing use of initiatives and referendums around the country and to examine their effect on representative democracy at the state level.
The Initiative and Referendum Task Force found that opportunities for abuse of the process outweigh its advantages and does not recommend that states adopt the initiative process if they currently do not have one.
 
The task force also developed recommendations that would enable initiative states to make their processes more representative. For states that are intent upon adopting an initiative process, the task force offers a set of guidelines to enhance the process and to avoid many of the pitfalls currently experienced by the initiative states. The task force urges such states to consider giving preference to a process that encourages citizen participation without enacting specific constitutional or statutory language-specifically, the advisory initiative or the general policy initiative.
 
The 34 recommendations contained in this report acknowledge that the initiative process has outgrown the existing laws that govern it. After listening to expert testimony from a wide variety of witnesses and compiling data from all 50 states, the task force concluded that the initiative has evolved from its early days as a grassroots tool to enhance representative democracy into a tool that too often is exploited by special interests. The initiative lacks critical elements of the legislative process and can have both intended and unintended effects on the ability of the representative democratic process to comprehensively develop policies and priorities.
 
As a result, the task force suggests that initiative states reform drafting, certification, signature-gathering and financial disclosure statutes; adhere to single subject rules; and improve practices regarding voter education. It also recommends that initiatives be allowed only on general election ballots.
 
It is the task force's intent that the discussion and adoption of the reforms in this report lead to a more thoughtful lawmaking process, improve interaction between initiative proponents and legislatures, and ultimately produce better public policy and reinforce representative democracy.
 

Task Force Recommendations

The following 34 recommendations were adopted unanimously at the final meeting of the NCSL Initiative and Referendum Task Force in Denver, Colorado, on April 26-27, 2002.
 
The task force does not recommendthat states that currently do not have an initiative process adopt one. The task force believes that representative democracy is more desirable than the initiative. The disadvantages of the initiative as a tool for policymaking are many, and the opportunities for abuse of the process outweigh its advantages. However, if a state is intent upon adopting an initiative process, the first four recommendations lay out the task force's view of an effectively structured process.
 
The remaining recommendations deal with specific elements of the initiative process and are intended as guidelines to improve existing procedures. The task force believes that the adoption of these recommendations will improve the initiative process to the benefit of both state government and voters and will result in improved public policy making via the initiative.
 

General Recommendations Regarding the Initiative Process

Recommendation 1.1: States that are considering adopting an initiative process should give preference to one that encourages citizen participation without enacting specific constitutional or statutory language. Specifically, states should consider:
A. First, adopting the advisory initiative; or
B. In the alternative, adopting the general policy initiative.
Recommendation 1.2: If states wish to adopt an initiative process and neither the advisory initiative nor the general policy initiative are adopted, they should adopt an indirect initiative process.
Recommendation 1.3: If states adopt a direct initiative process, they should adopt only a statutory initiative process, not a constitutional amendment initiative process.
Recommendation 1.4: If states adopt a constitutional amendment initiative process, they also should adopt a statutory initiative process.
 

Involving the Legislature in the Initiative Process

Recommendation 2.1: States that currently have a direct initiative process should consider adopting an indirect process as well, and provide incentives to encourage its use.
Recommendation 2.2: After a specified percentage of signatures has been gathered for an initiative petition, the legislature should provide for public hearings on the initiative proposal.
Recommendation 2.3: When appropriate, the legislature should place an alternative legislative referral on the ballot with an initiative that appears on the ballot.
 

The Subject Matter of Initiatives

Recommendation 3.1: States should encourage the sponsors of initiatives to propose them as statutory initiatives when possible, rather than as constitutional amendments.
Recommendation 3.2: States should adopt the single subject rule to enhance clarity and transparency in the initiative process.
Recommendation 3.3: If an initiative measure is rejected by voters, states should prohibit an identical or substantially similar initiative measure from appearing on the ballot for a specified period of time.
 

The Drafting and Certification Phase

Recommendation 4.1: States should require a review of proposed initiative language by either the legislature or a state agency. The review should include non-binding suggestions for improving the initiative's technical format and content, and should be considered public information.
Recommendation 4.2: States should require the drafting and certification of a ballot title and summary for each initiative proposal. Ballot titles must identify the principal effect of the proposed initiative and must be unbiased, clear, accurate, and written so that a "yes" vote changes current law.
Recommendation 4.3: States should require the drafting of a fiscal impact statement for each initiative proposal. The statement should appear on the petition, in the voter information pamphlet, and on the ballot.
Recommendation 4.4: States should establish a review process and an opportunity for public challenge of technical matters, including adherence to single subject rules, and ballot title, summary and fiscal note sufficiency, to be made prior to the signature-gathering phase.
 

The Signature-Gathering Phase

Recommendation 5.1: States should require that initiative proponents file a statement of organization as a ballot measure committee prior to collecting signatures. States should void any signature that is gathered before a statement of organization is filed.
Recommendation 5.2: States should provide for safeguards against fraud during the signature-gathering process. Safeguards should include:
A. Prohibiting the giving or accepting of money or anything else of value to sign or not sign a petition.
B. Requiring a signed oath by circulators, stating that the circulator witnessed each signature on the petition and that to the best of the circulator's knowledge, the signatures are valid.
C. Requiring circulators to disclose whether they are paid or volunteer.
Recommendation 5.3: States should provide for an adequate but limited time period for gathering signatures. The deadline for submission should allow a reasonable time for verification of signatures before the ballot must be certified.
Recommendation 5.4: States should establish a limit on the length of time that verified signatures are valid.
Recommendation 5.5: States should require a higher number of signatures for constitutional amendments than is required for statutory initiatives.
Recommendation 5.6: To achieve geographical representation, states should require that signatures be gathered from more than one area of the state.
Recommendation 5.7: Each state should establish a uniform process for verifying that the required number of valid signatures has been gathered.
 

Voter Education

Recommendation 6.1: States should provide to the public a manual describing the initiative and referendum process.
Recommendation 6.2: States should encourage public education and discussion about measures on the ballot.
Recommendation 6.3: States should produce and distribute a voter information pamphlet containing information about each measure certified for the ballot.
Recommendation 6.4: In addition to a printed voter information pamphlet, states should consider alternative methods of providing information on ballot measures, such as the Internet, video and audio tapes, toll-free phone numbers, and publication in newspapers.
 

Financial Disclosure

Recommendation 7.1: States should require financial disclosure by any individual or organization that spends or collects money over a threshold amount for or against a ballot measure.
Recommendation 7.2: After a title has been certified for an initiative measure, states should require that proponents and opponents of the initiative measure file a statement of organization as a ballot measure committee prior to accepting contributions or making expenditures.
Recommendation 7.3: States should make the disclosure requirements for initiative campaigns consistent with the disclosure requirements for candidate campaigns.
Recommendation 7.4: States should prohibit the use of public funds or resources to support or oppose an initiative measure. This should not preclude elected public officials from making statements advocating their position on an initiative measure.
 

Voting on Initiatives

Recommendation 8.1: States should allow initiatives only on general election ballots.
Recommendation 8.2: States should adopt a requirement that creates a higher vote threshold for passage of a constitutional amendment initiative than for passage of a statutory initiative.
Recommendation 8.3: States should require that any initiative measure that imposes a special vote requirement for the passage of future measures must itself be adopted by the same special vote requirement.
Recommendation 8.4: States should ensure that statutory initiative measures require the same vote threshold for passage that is required of the legislature to enact the same type of statute.
Recommendation 8.5: States should adopt a procedure for determining which initiative measure prevails when two or more initiative measures approved by voters are in conflict.
 

Introduction

Initiative and referendum operated quietly in the background of state politics for much of the 20th century, but during the last decade, it has come back into vogue. More initiatives are circulated, more make it to the ballot, and more money is spent in the process than ever before. Consider the numbers: 183 statewide votes on initiatives in the 1970s, 253 in the 1980s, and 383 in the 1990s, more than double the total from the 1970s. California alone accounts for 130 of the total 819 measures during that 30-year period; Oregon can claim 107. Between them, these two states account for nearly 30 percent of all initiatives from 1970 to 1999. It is no wonder that people in California and Oregon are beginning to voice concerns about the initiative process.
 
Initiative advocates say the resurgence of the initiative is good for states-it means citizens are using it as a tool to implement new laws and reforms that the legislature is unable or unwilling to enact. Besides accomplishing policy change, supporters also say that initiatives increase citizen involvement with government-people are not only more aware of state policy issues, but they are also more likely to vote. For these reasons, movements have begun to establish an initiative process in some of the states that currently do not have such a process.
 
However, in some states where the initiative is heavily used, there is growing public frustration with initiatives, and some people are beginning to speak out against the process. Legislatures are struggling to find ways to prevent fraud in the signature-gathering process; disclose information about who pays for initiative campaigns; and add flexibility to the process to accommodate more debate, deliberation and compromise than presently exists. Equally concerning to many is the disadvantage that, unlike our legislatures' process of representative government, decisions made through the initiative process do not provide an opportunity to accommodate minority interests. Most importantly, initiatives ask voters to make simple yes-no decisions about complex issues without subjecting the issue to detailed expert analysis and without asking voters to balance competing needs with limited resources. In short, the initiative affects the ability of representative democracy to develop policies and priorities in a comprehensive and balanced manner.
 
The problems with the initiative process are not easy to solve for a number of reasons. The courts have made it difficult to regulate both petition circulators and initiative campaign finance, and almost any reform can be a difficult political issue because proponents of the initiative generally are hostile to legislative attempts to change the process.
 
The initiative is a vital and popular part of democracy in half the states (refer to Appendix A for a list of initiative states), but it is clear that the initiative has outgrown the existing state laws governing it. NCSL's Initiative and Referendum Task Force set out to first gather the facts and data necessary to paint an accurate picture of how the initiative process works in each state. It identified and focused on problems in the process, then considered ways that the process might be made more open and flexible. The task force feels strongly that the changes it recommends in the initiative process would equally benefit both voters and the legislative process, and that, in the end, a reformed initiative process might produce better public policy.
 
The task force met three times during a five-month period. Meetings were held on:
  • December 7-8, 2001, in Washington, D.C.;
  • February 8-9, 2002, in Washington, D.C.; and
  • April 26-27, 2002, in Denver, Colorado.
 
The task force took great care to ensure that it heard testimony from experts and activists on a wide array of issues and from as many points of view as possible. Presenters included both supporters and critics of the initiative process, citizens who use the initiative process, and election administrators. The experts who testified before the task force were:
 
David Broder, Washington Post, Washington, D.C.;
Lois Court, Save our Constitution, Colorado;
Neal Erickson, Office of the Secretary of State, Nebraska;
Wayne Pacelle, Humane Society of the United States, Washington, D.C.;
John Perez, Speaker's Commission on the California Initiative Process, California;
Honorable Joe Pickens, State Representative, Florida;
Larry Sokol, Speaker's Commission on the California Initiative Process, California;
M. Dane Waters, Initiative and Referendum Institute, Washington, D.C.; and
Joseph F. Zimmerman, State University of New York-Albany, New York.
 
In addition to the experts who testified before the task force, the task force members themselves are experts on the initiative process. The perspectives and suggestions that each member brought to the table contributed to the extensive body of knowledge the task force developed about how the initiative works around the country. Finally, the task force also relied on a wide array of written materials on the initiative process. These include reports from earlier initiative reform commissions and task forces, and the many books and academic papers that are listed in appendix B and the reference section of this report.
 
The task force adopted 30 recommendations for legislatures in the initiative states that are seeking guidance on how their initiative process might be improved. Four additional recommendations are meant for states that may be thinking about adopting an initiative process. Although the task force does not recommend that non-initiative states adopt such a procedure, these four recommendations are offered for those states that have, nonetheless, made the decision to go forward.
 
All the recommendations were based on a set of observations and conclusions about representative and direct democracy that were adopted by the task force at its first meeting. These principles reflect the task force members' belief that it is important to carefully balance the pure democratic impulse of the initiative with the deliberative, consensus-building practices of representative democracy. It also is the belief of task force members that the adoption of this set of recommended reforms by initiative states will lead to a more thoughtful lawmaking process, improved interaction between initiative proponents and legislatures, and ultimately, better public policy.
 

Observations and Conclusions about Representative and Direct Democracy

Adopted by the NCSL I&R Task Force on April 27, 2002

We offer in the following observations regarding representative and direct democracy.

1. Representative democracy is the foundation of America's system of government.
2. Representative democracy has provided a stable and flexible system of government that has served America well for more than 200 years.
3. Direct democracy, as envisioned in the initiative and referendum system, was first instituted as a check on representative democracy. It was meant to enhance representative government, not to supercede or abolish it.
4. As intended by its founders, the initiative and referendum process was meant to give citizens a tool to break what they perceived as the hold of special interests over some state legislatures.
5. In most of the 24 states where it exists, the initiative is a popular part of the lawmaking process.
6. The initiative brings to the fore issues that may not receive legislative attention or final action and engages citizens in a debate of important public policy issues.
 

Based on these observations, we draw the following conclusions about direct democracy.

1. The initiative has evolved from its early days as a grassroots tool to enhance representative government. Today, it is often a tool of special interests.
2. The initiative process, as it exists today, lacks some of the critical elements of the representative system of government, including debate, deliberation, flexibility, compromise and transparency.
3. The initiative process does not involve all the checks and balances that representative government does.
4. The initiative can affect the ability of representative democracy to develop policies and priorities in a comprehensive and balanced manner.
5. As the initiative process and the way it is used have evolved over time, a review of the laws governing it is merited.
 

1. General Recommendations Regarding the Initiative Process

Recommendations

The task force does not recommend that states that currently do not have an initiative process should adopt one. However, if a state is intent upon adopting an initiative process, the following four recommendations lay out the task force's view of how an effective process might be structured.
 
Recommendation 1.1: States that are considering adopting an initiative process should give preference to one that encourages citizen participation without enacting specific constitutional or statutory language. Specifically, states should consider:
A. First, adopting the advisory initiative; or
B. In the alternative, adopting the general policy initiative.
Recommendation 1.2: If states wish to adopt an initiative process and neither the advisory initiative nor the general policy initiative are adopted, they should adopt an indirect initiative process.
Recommendation 1.3: If states adopt a direct initiative process, they should adopt only a statutory initiative process, not a constitutional amendment initiative process.
Recommendation 1.4: If states adopt a constitutional amendment initiative process, they also should adopt a statutory initiative process.

Overview

The task force does not recommend that non-initiative states adopt an initiative process. However, should a state choose to do so, the recommendations in this chapter outline what the task force considers to be an ideally structured initiative process.
 

The Advisory Initiative

An advisory initiative process provides citizens with a formal means of presenting to the legislature the views of the majority on a particular issue, but stops short of the actual enactment of laws. It permits public input in the decision-making process, and allows the legislature to weigh public opinion in determining the appropriate implementation. In short, the advisory initiative uses a more deliberative lawmaking process than the direct initiative. Another advantage of the advisory initiative over the binding direct initiative is that, with the direct initiative, a slim majority might enact a binding policy measure, but a close vote on an advisory initiative simply indicates a lack of consensus.
 
Recommendation 1.1(A): States that are considering adopting an initiative process should give preference to one that encourages citizen participation without enacting specific constitutional or statutory language. Specifically, states should first consider adopting the advisory initiative.
 
Several states use the advisory referendum, whereby the legislature or even the governor may place a question on the ballot, asking voters their opinion on an issue. In 2000, for example, the governor of Rhode Island placed an advisory question on the statewide ballot, asking voters if they favored co-equal branches of government. It is much rarer for states to permit citizens to initiate an advisory question.
 

The General Policy Initiative

A general policy initiative is similar to the advisory initiative discussed above, except that it is binding upon the legislature. If the voters pass a citizen initiative of a general sort-for instance, expressing their desire that the state use tobacco settlement revenues for improving health care-it is up to the legislature to enact the specific laws required to implement that general policy. Like the advisory initiative, the general policy initiative permits direct public input to the policymaking process but uses a more deliberative approach to crafting detailed policy. The general policy initiative offers citizens the opportunity to put their policy ideas before the voters, but offers legislatures more flexibility in implementing voter-mandated policy than does the initiative process currently offered in 24 states.
 
Recommendation 1.1(B): States that are considering adopting an initiative process should give preference to one that encourages citizen participation without enacting specific constitutional or statutory language. Specifically, as an alternative to the advisory initiative, states should consider adopting the general policy initiative.
 

The Indirect Initiative

The indirect initiative is frequently offered as an improvement over the direct initiative because it allows for legislative analysis, committee hearings and floor debate. Legislative deliberation and debate on the issue itself and its effect on other existing policies may result in an improved initiative proposal because unintended consequences and errors may come to light.
 
Pitfalls exist in the indirect initiative process, however, which prevent it from being a panacea to the problems of the initiative. The main argument against the indirect initiative is that, where the process is currently offered, legislatures rarely take up the initiative proposal and, when they do, they almost always reject initiative proposals. Rarely do they engage in negotiation with initiative proponents and seek to craft a compromise. Most often, indirect initiatives are rejected by the legislature and end up on the ballot for a popular vote; the indirect process has done little but protract the initiative process.
 
In spite of its pitfalls, the indirect initiative process is more desirable than the direct initiative process because it allows for more public debate and deliberation, and it involves the legislature, with its professional research and bill drafting staff, in the process.
 
Recommendation 1.2: If states wish to adopt an initiative process and neither the advisory initiative nor the general policy initiative are adopted, they should adopt an indirect initiative process.
 

Table 1. States with an Indirect Initiative Process

 
Constitutional Amendments
Statutory Initiatives
Maine
 
X
Massachusetts
X
X
Michigan
 
X
Mississippi
X
 
Nevada
 
X
Ohio
 
X
Utah*
 
X
Washington*
 
X
*State also has a direct initiative process; proponents may select the direct or indirect route.
Note that the table does not represent all forms of the initiative process available in each
state; only the indirect processes are represented.
Source: National Conference of State Legislatures, January 2002.
 
Eight states currently offer an indirect initiative process. In the indirect initiative process, a proposed initiative is referred to the legislature after proponents have gathered the required number of signatures. The legislature has the option to enact, defeat or amend the measure. Depending on the legislature's action, the proponents may continue to pursue placement on the ballot for a popular vote. In three states (Massachusetts, Ohio and Utah), proponents must gather additional signatures to place the measure on the ballot; in the others, it automatically goes to the ballot.
 
In several states (Maine, Massachusetts, Michigan, Nevada and Washington), it is specifically provided for in law that the legislature may place an alternate proposition on the ballot with the initiative. Voters may vote for one or the other or for neither.
 
Alaska's and Wyoming's initiative processes are sometimes cited as indirect. However, instead of requiring that an initiative be submitted to the legislature for action, they require only that an initiative cannot be placed on the ballot until after a legislative session has convened and adjourned, thus providing the legislature with the opportunity to address the issue if it so chooses.
 
Two states-Utah and Washington-offer both the direct and indirect initiative process; proponents have the option of choosing either. In Utah, the initial signature requirement is lower for the indirect process. This serves as an incentive to proponents to choose the indirect route and thus incorporate the legislature into the process. Qualifying an initiative directly to the ballot requires signatures equal to 10 percent of the votes cast for governor in the last election; presenting an indirect initiative to the Legislature requires signatures equal to 5 percent of the votes cast for governor in the last election. However, if the indirect initiative is rejected by the Legislature, proponents must gather additional signatures equal to 10 percent of the votes cast for governor, creating a total signature threshold for indirect initiatives that is higher than that for direct initiatives. As a consequence, use of Utah's indirect initiative is significantly lower than use of the direct method.
 
California had an indirect initiative process until 1966. It was available in addition to the direct process, and proponents were permitted to choose the process they would use. The indirect option was rarely used, and voters approved its abolition in 1966.
 
Nevada currently has an indirect process for statutory initiatives. At one time, it also had the indirect process for initiative constitutional amendments, but it abolished this option in 1962. Voters approved a constitutional amendment referred by the Legislature that abolished the indirect process for constitutional amendments and at the same time imposed the requirement that any constitutional amendment be approved by a majority vote in two successive elections.
 
Adopting an indirect initiative process has been suggested as a significant reform by the following individuals and groups.
 
Professor Joseph Zimmerman, SUNY-Albany (in testimony before the task force in February 2002),
Speaker's Commission on the California Initiative Process (2002),
David Broder, Washington Post (in testimony before the task force on December 7, 2001),
Dane Waters, I&R Institute (in testimony before the task force on December 8, 2001),
California League of Women Voters (1999),
City Club of Portland, Oregon (1996),
Citizens' Commission on Ballot Initiatives (California, 1994),
Florida's Citizen Initiative Process Report (1994), and
California Commission on Campaign Financing (1992).
 

Case Studies: The Indirect Initiative

Switzerland

Switzerland's initiative process, which has long been cited as a model of a successful initiative process and heavily influenced the early development of the initiative in the United States, is an indirect process. When an initiative is submitted to the legislature in a Swiss canton, the legislature has four years to deliberate and act on the measure before it is referred to the ballot. When it does go to the ballot, the legislature often submits a statement of its position on the measure and has the option of placing a competing measure on the ballot. Most important, however, is the fact that many initiatives are withdrawn from the legislature before they reach the ballot. According to Richard Ellis in Democratic Delusions: The Initiative Process in America, the most common reason for this is that the legislature has promised or taken action that satisfies the proponents. Ellis writes that:
 
"The initiative in Switzerland is thus an integral part of the legislative process and is often used as a spur to get a majority in the legislature to heed the concerns of minority groups that have previously been thwarted in the assembly. Unlike in the United States, where the initiative process is a badly confrontational, zero-sum game, in Switzerland it is often employed to arrive at a consensus by facilitating legislative deliberation and compromise."1

Massachusetts

The indirect initiative process used for constitutional amendments in Massachusetts is unique because a citizen-initiated constitutional amendment cannot gain ballot access without first passing the legislature. An initiated constitutional amendment must be approved in two consecutive legislative sessions before it can go on the ballot. In the first session, it may be amended by the legislature with a three-fourths vote, and must be approved by one-fourth of the legislature in a joint session in order to advance to the second legislative session. In the second session, the proposal must again be approved by one-fourth of the legislature in a joint session in order to advance to the ballot. The legislature may not amend the proposal at this point in the process, but it may place a substitute measure on the ballot together with the initiative proposal. Few initiated constitutional amendments survive this process and ultimately land on the ballot (three in the history of the state), but many initiatives that fail to pass the legislature and advance to the ballot succeed in prodding the legislature to take action on the issue.
 
The process for statutory initiatives in Massachusetts, although still indirect, is less rigorous than the process for constitutional initiatives. A statutory initiative must be heard by the committee to which it is referred, and the committee must issue a report. If the legislature fails to enact the proposal, proponents may gather a small number of additional signatures to place it on the ballot. The legislature may place its own substitute proposal on the ballot together with the initiative proposal.
 
The advantages of the Massachusetts indirect initiative are that 1) the legislature is incorporated into the process, resulting in public consideration and debate, and 2) it gives the legislature the opportunity and an adequate period of time to respond to a proposal presented in an initiative. By making the constitutional process more difficult to use, it also directs more proposals toward the statutory initiative instead of the constitutional initiative. Its disadvantage is that it allows the legislature to block an initiative constitutional amendment from reaching the ballot, something that initiative advocates find too restrictive.
 
1Lawrence: University Press of Kansas, 2002, 140-1.
 
 

Initiated Statutes vs. Constitutional Amendments

Constitutions are the foundations of state laws and governments. They are sacrosanct and should not be amended hastily or at the whim of a narrow segment of society. In offering an initiative constitutional amendment process, a state runs the risk of accumulating material in its constitution that is statutory in nature, since initiative proponents are left with no other tool to initiate policy.
 
Recommendation 1.3: If states adopt a direct initiative process, they should adopt only a statutory initiative process, not a constitutional amendment initiative process.
 
Offering a statutory initiative process in addition to a constitutional amendment initiative process also can help avoid this problem. Some initiative proponents will choose the statutory process if it is available to them, especially if incentives are offered to encourage the use of the statutory process over the constitutional process.
 
Recommendation 1.4: If states adopt a constitutional amendment initiative process, they also should adopt a statutory initiative process.
 

Other Ideas for Reform

Limits on the Legislature's Power to Amend and Repeal Initiated Statutes

Limiting the legislature's power to amend and/or repeal a statute enacted through the initiative may be an incentive to encourage the use of the statutory initiative over the constitutional initiative. Very often, initiative proponents elect to use the constitutional initiative in order to prevent the legislature from amending or repealing their proposal. If proponents were assured that the legislature's ability to amend and/or repeal statutory initiatives was limited, perhaps they would be more inclined to avail themselves of the statutory initiative process.
 
Currently, the legislature's power to amend and/or repeal a statute passed by the initiative is restricted in 10 states, and in California, it is expressly prohibited. In these states, a supermajority vote of the legislature is required to amend or repeal an initiated measure, or the legislature may be prohibited from acting on an initiated measure for a specified period of time. In the other 14 states, the legislature is free to amend or repeal an initiated measure at any time.
 

Table 2. Legislative Amendment and Repeal of Initiated Measures

 
Restriction
Alaska
No repeal within two years; amendment by majority vote anytime
Arizona
No repeal; 3/4 vote to amend; amending legislation must "further the purpose" of the measure
Arkansas
2/3 vote of the members of each house to amend or repeal
California
No amendment or repeal of an initiative statute by the Legislature unless the initiative specifically permits it
Michigan
3/4 vote to amend or repeal
Nevada
No amendment or repeal within three years of enactment
North Dakota
2/3 vote required to amend or repeal within seven years of effective date
Oregon
2/3 vote required to amend or repeal within two years of enactment
Washington
2/3 vote required to amend or repeal within two years of enactment
Wyoming
No repeal within two years of effective date; amendment by majority vote any time
Source: National Conference of State Legislatures, January 2002.
 

Recent Legislative Action

In the period of 1999-2002, 17 non-initiative states saw legislation proposing the adoption of an initiative process. In Minnesota, an initiative bill passed the House twice in recent years. In fact, Minnesota voters have voted against adopting the initiative three times since 1913. However, the vote has been close, and the idea of adopting the initiative process continues to have strong support in Minnesota. In New York, Governor Pataki urged the adoption of the initiative in his 2002 state-of-the-state address. Several initiative bills currently are pending in the New York Legislature, one of which has passed the Senate.
 
Florida, which has had an initiative process for constitutional amendments since 1972, considered a bill in 2002 that would have provided for citizen initiatives to amend the statutes, as well. The bill would have modified the constitutional initiative process at the same time, changing the vote requirement from a simple majority to a two-thirds vote and requiring economic impact statements for all initiatives. The bill passed the House but failed to pass the Senate.

2. Involving the Legislature in the Initiative Process

Recommendations

Recommendation 2.1: States that currently have a direct initiative process should consider adopting an indirect process as well, and provide incentives to encourage its use.
Recommendation 2.2: After a specified percentage of signatures has been gathered for an initiative petition, the legislature should provide for public hearings on the initiative proposal.
Recommendation 2.3: When appropriate, the legislature should place an alternative legislative referral on the ballot with an initiative that appears on the ballot.

Overview

Further integrating the legislature into the initiative process would result in improved policymaking in the initiative states. Initiatives often tie the hands of the legislature, preventing state legislatures from developing broad, cohesive state policies. Improving the adversarial nature of the relationship between initiative advocates and state legislatures would be beneficial to legislatures and initiative proponents alike-initiative proponents would be more likely to see the legislature enact the policies they advocate, and legislatures would face fewer voter-mandated policies that restrict their flexibility and discretion in the lawmaking process.
Furthermore, increasing legislative involvement in the initiative process enhances the debate that surrounds initiative proposals and provides more opportunity for public access and input to the initiative process.
 

The Indirect Initiative

As discussed in chapter one, the indirect initiative process is more desirable than the direct process. In Utah and Washington, however, which have both types of processes, the indirect variety is rarely used. If states provided incentives-such as creating a lower signature threshold and a longer circulation period for indirect measures, or requiring the legislature to hold hearings on all indirect initiatives submitted-to proponents to use the indirect process, perhaps more proponents would be drawn to the indirect process. The benefits of such incentives also might include a significant monetary savings for proponents if they are able to reach a compromise with the legislature and thus avoid a campaign, and an improved end product, thanks to the legislative hearing process. No matter how a state chooses to structure an indirect initiative process, the legislature must actively interact and negotiate in good faith with initiative proponents if the process is to be effective.
 
Recommendation 2.1: States that currently have a direct initiative process should consider adopting an indirect process as well, and provide incentives to encourage its use.
 

Public Hearings on Initiatives

Public hearings provide a forum for expert testimony, staff research and analysis, and debate by opposing sides. They also establish a public record of the proponents' intent, which could be useful to voters, to both sides in a campaign, and also in later court challenges, should they arise. Public hearings could be handled in several ways. The legislature itself could hold hearings on measures that have gathered a specified minimum percentage of the required signatures or on measures that have qualified for the ballot. As an alternative, the secretary of state could be required to hold public hearings on initiatives.
 
Recommendation 2.2: After a specified percentage of signatures has been gathered for an initiative petition, the legislature should provide for public hearings on the initiative proposal.
 
The organizations and individuals recommending public hearings for initiatives include:
 
Dane Waters of the I&R Institute (in testimony before the task force in December 2001),
California League of Women Voters (1999),
City Club of Portland, Oregon (1996),
Nebraska Petition Process Task Force (1995),
California Post Commission (1994), and
California Commission on Campaign Financing (1992).
 

Case Studies: Public Hearings on Initiatives

California's Senate Bill 384, proposed in the 1999-2000 legislative session, would have triggered public hearings for any initiative that obtained 15 percent of the required signatures. After the hearing, proponents would be permitted to make non-substantive technical changes-such as correcting drafting errors or making stylistic changes-then could continue to gather the remaining required signatures.
Oregon's House Bill 3487 from the 1999 legislative session would have created a 12-member citizen initiative review committee appointed by the governor, the president of the Senate, and the speaker of the House. After holding hearings on a proposal, the committee would be required to issue a report to the public and the news media, identifying issues raised by the proposal and including a fiscal impact estimate and summaries of all public testimony received at hearings. Proponents would be permitted to make non-substantive amendments to the initiative, subject to attorney general approval, after the report was issued.
 

Referring Legislative Alternatives to Initiative Proposals

If the legislature feels that an initiative measure is flawed, it should exercise its right to place an alternative measure on the ballot. When the legislature's proposal is placed on the ballot together with an initiative, voters are offered more than a simple yes/no vote-they are offered policy choices. The presence of similar but competing measures on the ballot also can prompt public debate and analysis of the proposals, resulting in more thorough attention to the perceived problem and potential solutions the measures address.
 
Recommendation 2.3: When appropriate, the legislature should place an alternative legislative referral on the ballot with an initiative that appears on the ballot.
 
Support for this reform has been expressed by Professor Joseph Zimmerman (in testimony before the task force in February 2002) and the California Post Commission (1994).
 

Case Studies: Legislative Alternatives to Initiatives

In at least five states (Maine, Massachusetts, Michigan, Nevada and Washington), the legislature is specifically granted the power to place alternatives to initiatives on the ballot. In most other states, the legislature is neither specifically granted nor denied that power. The Maine Legislature frequently chooses to exercise this right. In 1996, for example, Question 2A appeared on the ballot. It was a citizen initiative that sought to ban the timber harvesting practice of clearcutting in the state. The Legislature placed Question 2B on the ballot, a more moderate proposal. Voters also were offered Question 2C, which was a vote for neither 2A nor 2B. Question 2B, the Legislature's alternative to the initiative, passed.
 

Recent Legislative Action

California, Oregon and Utah considered bills that would permit the legislature to make certain amendments to proposed initiatives before they are placed on the ballot. Utah passed HB 143 in 1999, which allows the Legislature to make technical corrections to indirect initiatives submitted to the Legislature and to prepare a legislative review note and fiscal note for indirect initiatives. Four states considered requiring legislative review and comment on proposed initiatives.
 

3. The Subject Matter of Initiatives

Recommendations

Recommendation 3.1: States should encourage the sponsors of initiatives to propose them as statutory initiatives when possible, rather than as constitutional amendments.
Recommendation 3.2: States should adopt the single subject rule to enhance clarity and transparency in the initiative process.
Recommendation 3.3: If an initiative measure is rejected by voters, states should prohibit an identical or substantially similar initiative measure from appearing on the ballot for a specified period of time.

Overview

It is common for states to prohibit the use of the initiative for certain subjects. In Massachusetts and Mississippi, for instance, the initiative cannot be used to modify or repeal the rights of individuals, and several states prohibit initiatives that deal with the judiciary. These are fundamental matters of law, and it is appropriate that some states should choose to remove them from the purview of the initiative process. Some scholars and reformers argue that the same argument extends to state constitutions-that they are the foundations of state law, and changing them should not be entered into lightly.
 


Constitutional vs. Statutory Initiatives

In many initiative states, constitutions are becoming cluttered with matter that is more appropriate for the state's statutes. Initiative proponents often use the constitutional amendment rather than the statutory initiative because they fear the legislature might amend or repeal their initiative if they place it in statute. They are further encouraged to use the constitutional amendment because it is rarely more difficult or costly to pass than a statutory initiative. States could implement reforms that provide incentives for using the statutory process, such as lower signature thresholds and increased circulation periods. They can also reassure proponents by enacting time limits during which the legislature may only amend an initiated statute with a supermajority vote. This subject is also discussed in chapter one.
 
Recommendation 3.1: States should encourage the sponsors of initiatives to propose them as statutory initiatives when possible, rather than as constitutional amendments.
 
The City Club of Portland made a similar recommendation in 1996. Their recommendation states that the process for amending the Oregon Constitution should be substantially more difficult than adopting, amending or repealing a statute.
 

Single Subject Rules

Single subject rules require that an initiative address only one question or issue. Such rules benefit the initiative process because they make initiatives simpler and easier to understand. There is a danger in permitting a popular vote on a measure that addresses multiple, distinct subjects. How might a voter express his support of one subject but his rejection of another in such a situation? The lack of a single subject rule also leaves the door open to proponents who might try to make an unpopular idea more palatable by pairing it with a popular idea in a single initiative. In such cases, it is impossible to determine the majority's viewpoint on an issue.
 
Recommendation 3.2: States should adopt the single subject rule to enhance clarity and transparency in the initiative process.
 
Single subject rules also are common in legislatures-41 states have constitutional provisions stipulating that bills may address only one subject, and several others have chamber rules for single-subject bills.
 
Among the groups that express support for single subject rules are:

Speaker's Commission on the California Initiative Process (2002),
Professor Joseph Zimmerman (in testimony before the task force, February 2002),
California League of Women Voters (1999),
Nebraska Petition Process Task Force (1995),
California Policy Seminar (1991), and
Los Angeles Times (1990).
 
Currently, the following 12 initiative states require that initiatives address no more than one subject. Wide variation exists in how these states define "single subject" and how courts have interpreted the definitions.
Alaska
Montana
Arizona
Nebraska
Colorado
Oklahoma
California
Oregon
Florida
Washington
Missouri
Wyoming

Banning Similar Measures from the Ballot for a Specified Period of Time

Banning the same or a substantially similar measure from reappearing on the ballot for a specified period of time helps to reduce the number of measures on the ballot.
 
Recommendation 3.3: If an initiative measure is rejected by voters, states should prohibit an identical or substantially similar initiative measure from appearing on the ballot for a specified period of time.
 
Five states currently prohibit the same or a substantially similar measure from reappearing on the ballot for a specified period of time after it is rejected by voters. Time periods range from two years in Mississippi to five years in Wyoming. If an initiative is found to be the same or substantially similar to an initiative that appeared on the ballot within the specified time frame, state election officials deny the proponent's initiative application.
 
In none of these states are the terms "same" and "substantially similar" defined in statute or the constitution. The decision about whether a measure is the "same" or "substantially similar" is left to a state official, generally the state's chief election officer or, ultimately, the courts.
 

Table 3. States with Bans on Same/Substantially Similar Initiatives

 
Language of the Ban
Time Period
Massachusetts
A measure cannot be substantially the same as any measure that has been qualified for submission or appeared on the ballot at either of the two preceding biennial state elections.
Six years (banned from next two biennial state elections)
Mississippi
If an initiative is rejected, no initiative petition proposing the same or substantially the same amendment shall be submitted to the electors.
Two years
Nebraska
The same measure, either in form or in essential substance, shall not be submitted by initiative petition more often than once in three years.
Three years
Oklahoma
Any initiative measure rejected by the people cannot be again proposed by initiative within three years by less than 25 percent of the legal voters.
Three years
Wyoming
An initiative petition may not be filed for a measure substantially the same as that defeated by an initiative election within the preceding five years.
Five years
Source: National Conference of State Legislatures, April 2002.
 
In many states, a similar restriction is imposed on the legislature, prohibiting bills that have been defeated (or bills that are substantially the same as ones defeated) from being reintroduced-either as a bill or an amendment-during the same legislative biennium. Florida, Mississippi, Ohio and Wyoming are examples of initiative states with such rules for their legislatures.
Table 4 summarizes all initiative subject restrictions.
 

Table 4. Initiative Subject Restrictions

 
Single Subject?
Other Subject Restrictions
Alaska
Yes
No revenue measures
No appropriations
No acts affecting the judiciary
No local or special legislation
Arizona
Yes
None
Arkansas
No
None
California
Yes
May not include or exclude any political subdivision of the state from application or effect
May not contain alternative or cumulative provisions wherein one or more of those provisions would become law, depending upon the casting of a specified percentage of votes for or against the measure
Colorado
Yes
None
Florida
Yes
May not include limitations on the power of government to raise revenue
Idaho
No
None
Illinois
No
Allowed only for amendment of constitutional Article IV, relating to structural and procedural subjects concerning the legislative branch
Maine
No
Any measure providing for an expenditure of funds in excess of those appropriated becomes inoperative 45 days after the legislature convenes
Massachusetts
No*
No measures relating to:
-Religion
-The judiciary
-Specific appropriations
-Local or special legislation
-The 18th amendment of the constitution
-Anything inconsistent with the rights of individuals as enumerated in the constitution
-A measure cannot be substantially the same as any measure that has been qualified for the ballot or appeared on the ballot in either of two preceding general elections
Michigan
No
The initiative power extends only to laws that the Legislature may enact
Mississippi
No
The initiative cannot be used to amend/repeal the:
-Bill of Rights
-Public employees' retirement system
-Right-to-work provision
-Initiative process
Only first five certified measures may go on ballot
If a measure is rejected by voters, no identical or substantially similar measure may go on ballot for a minimum of two years
If an initiative requires a reduction in government revenue or a reallocation from currently funded programs, the initiative text must identify the program or programs whose funding must be reduced or eliminated to implement the initiative
Missouri
Yes
No appropriations of money other than new revenues created and provided for by the initiative
Cannot be used for any purpose prohibited by the state's constitution
Montana
Yes
No appropriations
No local or special laws
Nebraska
Yes
Limited to matters that can be enacted by legislation and cannot interfere with Legislature's ability to direct taxation for state and governmental subdivisions
The same measure cannot be initiated more often than once in three years
Nevada
No
No appropriations
Cannot require an expenditure of money unless a sufficient tax is provided as part of the initiative proposal
North Dakota
No
No emergency measures
No appropriation measures for the support and maintenance of state departments and institutions
Ohio
No
May not be used to pass a law:
-Authorizing any classification of property for the purpose of levying different rates of taxation thereon
-Authorizing the levy of any single tax on land, land values or land sites at a higher rate or by a different rule than is applied to improvements thereon or to personal property
Oklahoma
Yes
Initiatives rejected by the voters cannot be proposed again for three years by less than 25 percent of the state's legal voters
Oregon
Yes
None
South Dakota
No
No private or special laws
Utah
No
None
Washington
Yes
None
Wyoming
Yes
Cannot be used to:
-Dedicate revenues
-Make or repeal appropriations
-Create courts
-Define the jurisdiction of courts
-Prescribe court rules
-Enact local or special legislation
-Enact legislation prohibited by the Wyoming constitution
The same measure cannot be initiated more often than once in five years
*In interviews conducted in May 2002, election officials in Massachusetts said that although that state does not have a single subject rule, it does have a requirement that an initiative contain only subjects that are related or mutually dependent. Courts have interpreted relatedness to mean that "... one can identify a common purpose to which each subject of [the] initiative petition can reasonably be said to be germane."
Source: National Conference of State Legislatures, January 2002.
 

Other Ideas for Reform

Restrictions on the Dedication of Revenue

Initiative measures that mandate the expenditures of large amounts of public revenue without including a new dedicated revenue source (such as taxes or fees) can make it difficult for the legislature to continue to fund existing state services and programs. In addition, initiatives that increase or create new taxes to fund new or existing programs negatively affect the legislature's ability to impose reasonable taxes to fund necessary programs for citizens. Although the task force agreed that initiatives limiting or dedicating revenue or otherwise imposing fiscal policies can be a significant problem-perhaps even the most serious problem-in the initiative process, members were unable to agree on a specific recommendation to address the issue.
 
The City Club of Portland recommended in 1996 that Oregon's initiative process be changed so that initiatives that dedicate revenue or require appropriations in excess of $500,000 per year should be required to provide new revenues.
 
Eleven states currently have restrictions on the use of the initiative with regard to appropriations and funding mechanisms.
 

Table 5. Restrictions on Imposing Fiscal Policies Via the Initiative

 
Restriction
Alaska
No dedication of revenues or making or repealing appropriations.
Florida
Tax or fee increases require a 2/3 vote to pass.
Maine
Expenditures in an amount in excess of available and unappropriated state funds remain inoperative until 45 days after the regular legislative session, unless the measure provides for raising new revenues adequate for its operation.
Massachusetts
May not be used to make a specific appropriation from the treasury. However, if such a law, approved by the people, is not repealed, the legislature must raise by taxation or otherwise and appropriate such money as may be necessary to carry such law into effect.
Mississippi
Sponsor must identify in the text of the initiative the amount and source of revenue required to implement the initiative. Initiatives requiring a reduction in government revenue or a reallocation from currently funded programs must identify the program(s) whose funding must be reduced or eliminated to implement the initiative.
Missouri
May not appropriate money other than new revenues created and provided for by the initiative.
Montana
May not appropriate money.
Nebraska
No measure that interferes with the Legislature's ability to direct taxation of necessary revenues for the state and its governmental subdivisions.
Nevada
No appropriations or other expenditures of money, unless such statute or amendment also imposes a sufficient tax or otherwise constitutionally provides for raising the necessary revenue.
North Dakota
No appropriations for the support and maintenance of state departments and institutions.
Wyoming
No dedication of revenues or making or repealing appropriations.
Source: National Conference of State Legislatures, April 2002.
 

Recent Legislative Action

A total of 29 bills dealing with initiative subject matter were introduced in 14 states between 1999 and 2002. None have passed to date. Among the most common subjects were:
  • Prohibiting or restricting appropriations and reductions in state revenue via an initiative (considered in Arizona, Mississippi and Washington); a bill is pending in Michigan that would prohibit using the popular referendum for acts whose primary purpose is to make appropriations or meet deficiencies in state funds.
  • Strengthening and providing for interpretation of single subject rules (pending in California; also considered in Oklahoma).
  • Making it more difficult to propose and pass wildlife measures (considered in Alaska, Massachusetts, Oklahoma and Washington).
  • Banning a measure that is failed by voters from returning to the ballot for a specified period of time (considered in Maine and Oregon).
Other measures that address initiative subjects included a 1999 bill in Arizona that would have established a four-year sunset provision for initiatives that establish the functions or activities of a state agency; a 1999 Oregon bill that would have prohibited initiatives that result in the taking of private property; and a pending bill to enact an initiative procedure in New Jersey that would be limited to campaign finance, lobbying, government ethics and election procedures. A failed 1999 bill in Oregon would have limited initiative amendments to the constitution to the structure and powers of government and the rights of people with respect to their government, and would have prohibited initiated constitutional amendments that dedicated or appropriated revenue, repealed appropriations, or required expenditures in excess of $500,000 per year.
 

4. The Drafting and Certification Phase

Recommendations

Recommendation 4.1: States should require a review of proposed initiative language by either the legislature or a state agency. The review should include non-binding suggestions for improving the initiative's technical format and content, and should be considered public information.
Recommendation 4.2: States should require the drafting and certification of a ballot title and summary for each initiative proposal. Ballot titles must identify the principal effect of the proposed initiative and must be unbiased, clear, accurate and written so that a "yes" vote changes current law.
Recommendation 4.3: States should require the drafting of a fiscal impact statement for each initiative proposal. The statement should appear on the petition, in the voter information pamphlet, and on the ballot.
Recommendation 4.4: States should establish a review process and an opportunity for public challenge of technical matters, including adherence to single subject rules, and ballot title, summary and fiscal note sufficiency, to be made prior to the signature-gathering phase.

Overview

Certifying an initiative for signature collection is an involved process with many steps and deadlines. No two states have exactly the same certification requirements. Generally, however, the process includes these steps:
 
1) Drafting the initiative proposal;
2) Preparation of a ballot title and summary;
3) In some states, preparation of a fiscal analysis; and
4) Technical challenges to ballot titles, summaries and fiscal analyses.
 

Drafting the Initiative Proposal

Often, initiatives are drafted by citizens who have little or no legal background or expertise. Making the legislature's professional bill drafting staff available to proponents may help to prevent errors in drafting and to ensure that a proposal's language is in the proper form and harmonizes with other constitutional or statutory language. Advice from the legislature's legal experts also may help initiative proponents recognize constitutional flaws and unintended consequences of their proposal. Correcting such problems early in the process can help proponents avoid costly court battles later in the process. In short, assistance and advice from legislative bill drafting staff may help improve the quality and consistency of initiative measures. Making public the comments and recommendations of such a review process is important because it can draw attention to issues that otherwise might escape public notice.
 
Recommendation 4.1: States should require a review of proposed initiative language by either the legislature or a state agency. The review should include non-binding suggestions for improving the initiative's technical format and content, and should be considered public information.
 
Similar reforms have been proposed by the following:
 
California League of Women Voters (1999),
City Club of Portland, Oregon (1996), and
Nebraska Petition Reform Task Force (1995).
 
Presently, some states offer no assistance or advice to initiative proponents on the draft of their proposed law. The states that do offer assistance generally have one of two basic levels of review, which may be provided either prior to filing the initiative or upon filing. In some states, the review is purely technical; the proposal is reviewed to ensure it meets the legal requirements for format and style and adheres to drafting conventions. However, 11 states go further and offer some sort of drafting assistance in order to improve the quality and consistency of initiative proposals. In these states, sponsors may take a draft or even just an idea to a legislative office for assistance with the form and content of the initiative before submitting the proposal to the appropriate state official. Sponsors' acceptance of any recommendations made is optional. Table 6 contains a list of technical and content-oriented state agency review.
 

Table 6. State Agency Review

 
Technical
Content
Who Reviews
Alaska
No
Optional
Department of Law
Arizona
Mandatory*
No
Secretary of State
Arkansas
Mandatory
No
Secretary of State
California
Optional
Optional
Legislative Counsel
Colorado
Mandatory
Mandatory
Legislative Council and Legal Services
Florida
Mandatory
No
Division of Elections
Idaho
Mandatory
Mandatory
Attorney General
Illinois
No
No
N/A
Maine
Mandatory
No
Secretary of State
Massachusetts
Mandatory
Mandatory
Attorney General
Michigan
Optional
No
Bureau of Elections
Mississippi
Mandatory
Mandatory
Revisor of Statutes
Missouri
Mandatory
No
Secretary of State and Attorney General
Montana
Mandatory
Mandatory
Legislative Services Division and Attorney General
Nebraska
Mandatory
No
Revisor of Statutes
Nevada
Mandatory
No
Secretary of State
N. Dakota
Mandatory
No
Secretary of State and Attorney General
Ohio
No
No
N/A
Oklahoma
Mandatory
No
Attorney General and Secretary of State
Oregon
Optional
Optional
Legislative Counsel and State Treasurer
S. Dakota
Mandatory
No
Director of Legislative Research Council
Utah
Mandatory
Mandatory
Lieutenant Governor
Washington
Optional
Optional
Assistant Code Revisor
Wyoming
Mandatory
Mandatory
Secretary of State; Legislative Service Office and executive agencies may render assistance
* In all states, the designation "Mandatory" indicates that the review process is mandatory, not that adherence to the recommendations made as a result of the review process is mandatory.
Source: National Conference of State Legislatures, April 2002.
 
Of the 11 states that offer some sort of drafting assistance, a wide range of services is offered. In at least four states-California, Massachusetts, Montana, and Oregon-initiative sponsors may take a draft or just an idea to drafters in their state for assistance. California serves as an example of a state that offers extensive assistance to proponents during the drafting process. There, an initiative sponsor may take an idea to the Legislative Counsel, and a staff member will draft the language of the initiative for the sponsor.
 

Case Study: Initiative Drafting and State Agency Review

Colorado's Review and Comment Process

In Colorado, the Legislative Council staff and Legislative Legal Services conduct a public hearing to present their review and comments on proposed initiatives. The comments are intended to help proponents clarify their proposal, but they are not required to accept any suggestions offered by legislative staff. The meeting, held in the Capitol, is open to the public and although people who may oppose a measure are welcome to attend, no testimony or comments are accepted from anyone other than the proponents. The meeting is taped and becomes public record. Proponents are required to go through this process before they can move on to the next step of setting a title.
 

Preparation of a Ballot Title and Summary

The ballot title and summary are arguably the most important part of an initiative in terms of voter education. Many voters never read more than the title and summary of the text of initiative proposals. Therefore, it is of critical importance that titles and summaries be concise, accurate and impartial.
 
Recommendation 4.2: States should require the drafting and certification of a ballot title and summary for each initiative proposal. Ballot titles must identify the principal effect of the proposed initiative and must be unbiased, clear, accurate, and written so that a "yes" vote changes current law.
 
Presently, a wide range of procedures exists in states for ballot title setting. In Colorado there is a special Ballot Title Board. Initiative proponents must appear before the board, which assigns a title, before the sponsor is authorized to gather signatures. In some states, the title is written by the sponsor, subject to the approval of a state official. In other states, the ballot title is written either by the attorney general, secretary of state or lieutenant governor. Table 7 contains a detailed list of who drafts ballot titles.
 

Table 7. Drafting the Initiative Title

 
Party Responsible for Drafting Title
 
 
Petition
Ballot
Where to File Challenge
Alaska
Proponent (approved by Lt. Governor)
Lt. Governor and Attorney General
Superior Court
Arizona
Proponent
Proponent (approved by Attorney General)
Superior Court
Arkansas
Proponent (approved by Attorney General)
Proponent (approved by Attorney General)
Supreme Court
California
Attorney General
Attorney General
Sacramento County District Court
Colorado
Secretary of State and Ballot Title Board
Secretary of State and Ballot Title Board
Supreme Court
Florida
Proponent (approved by Secretary of State)
Proponent (approved by Secretary of State)
Supreme Court
Idaho
Attorney General
Attorney General
Supreme Court
Illinois
Proponent (approved by Board of Elections)
Proponent (approved by Board of Elections)
Not specified in law
Maine
Secretary of State
Secretary of State
Superior Court
Massachusetts
Proponent (approved by Attorney General)
Secretary of State (approved by Attorney General)
Supreme Judicial Court
Michigan
Proponent
Director of Elections with the approval of the Board of State Canvassers
State District Court
Mississippi
Attorney General
Attorney General
Circuit Court of 1st Judicial District of HindsCounty
Missouri
Secretary of State
Secretary of State
CircuitCourtofColeCounty, appeal to Supreme Court
Montana
Attorney General
Attorney General
District Court in Lewis and ClarkCounty
Nebraska
Same as summary by proponent
Attorney General
District Court
Nevada
None
(Full text only)
None (summary only)
N/A
N. Dakota
Secretary of State and Attorney General
Secretary of State and Attorney General
Supreme Court
Ohio
Proponent (approved by Attorney General)
Proponent (approved by Attorney General)
Not specified in law
Oklahoma
No separate title; summary serves as title
Proponent (approved by Secretary of State and Attorney General)
Supreme Court
Oregon
Attorney General
Attorney General
Supreme Court
S. Dakota
None required
Attorney General
Circuit Court
Utah
None required
Office of Legislative Research and General Counsel (approved by Lt. Governor)
Supreme Court
Washington
Attorney General
Attorney General
ThurstonCounty Superior Court
Wyoming
Proponent
Secretary of State
DistrictCourtofLaramieCounty
Source: National Conference of State Legislatures, January 2002.
 
At the time the ballot title is drafted, the title-setting entity often includes a statement of what the result of a "yes" vote means if the measure is passed and what the result of a "no" vote means if the measure is defeated. In Oregon, this statement is drafted by the attorney general and may not exceed 25 words. In Washington, the ballot title, drafted by the attorney general, consists of three parts: a statement of the subject of the petition in 10 words or less, a concise summary in 30 words or less, and a question crafted in a way that clearly defines what a "yes" and a "no" vote mean.
 
Two types of summaries are drafted for initiatives. The first is the summary that appears on the petition; it is usually drafted by the same person or agency that drafts the ballot title. The other summary appears in the voter information pamphlet, which is discussed further in chapter six. In all states, the summary, whether drafted by proponents, the attorney general, secretary of state, or another state agency, is a concise statement of the main points of the proposed measure. Proposed initiative summaries in all states are required to be impartial and non-argumentative. The number of words usually is limited; in Washington, it is limited to 75 words written by the attorney general, and in Florida, it also is limited to 75 words written by the sponsor, with the approval of the secretary of state. See table 8 for a detailed description of state procedures for drafting summaries.
 

Table 8. Drafting the Initiative Summary

 
Party Responsible for Drafting Summary
Where to File Challenge
Petition
Ballot
Alaska
Lt. Governor and Attorney General
Proponent (approved by Lt. Governor)
Superior Court
Arizona
None
Secretary of State (approved by Attorney General)
Superior Court
Arkansas
Proponent (approved by Attorney General)
Proponent (approved by Attorney General)
Arkansas Supreme Court
California
Attorney General
Attorney General
Sacramento County District Court
Colorado
None
Secretary of State and Ballot Title Board
Supreme Court
Florida
Proponent (approved by Secretary of State)
Proponent (approved by Secretary of State)
Supreme Court
Idaho
Attorney General
Attorney General
Supreme Court
Illinois
Proponent (approved by Board of Elections)
Proponent (approved by Board of Elections)
Not specified in law
Maine
Revisor of Statutes, approved by Secretary of State
Revisor of Statutes (approved by Secretary of State)
Superior Court
Massachusetts
Secretary of State (approved by Attorney General)
Secretary of State (approved by Attorney General)
Supreme Judicial Court
Michigan
None
Director of Elections (approved by Board of State Canvassers)
State District Court
Mississippi
Attorney General
Attorney General
Circuit Court of 1st Judicial District of HindsCounty
Missouri
None
Attorney General
CircuitCourtofColeCounty, appeal to Supreme Court
Montana
Attorney General
Attorney General
District Court in and for the county of Lewis and Clark
Nebraska
Proponent
Attorney General
District Court
Nevada
None
Secretary of State and Attorney General
Not specified in law
North Dakota
Secretary of State (approved by Attorney General )
Secretary of State (approved by Attorney General )
Supreme Court
Ohio
Proponent (approved by Attorney General)
Proponent (approved by Attorney General)
Not specified I law
Oklahoma
Proponent (approved by Secretary of State and Attorney General)
Proponent (approved by Secretary of State and Attorney General)
Supreme Court
Oregon
Attorney General
Attorney General
Supreme Court
South Dakota
None
Attorney General
Circuit Court
Utah
None
Attorney General
Supreme Court
Washington
Attorney General
Attorney General
ThurstonCounty Superior Court
Wyoming
None
Secretary of State
DistrictCourtofLaramieCounty
Source: National Conference of State Legislatures, January 2002.
 

Preparation of a Fiscal Analysis

Fiscal impact statements are an important component of voter education on initiative proposals. Voters often do not have the budgetary perspective necessary to make an informed decision about an initiative. Often, they enact a measure and it is left to the legislature to determine where the money will come from, which can mean redirecting funds from other programs.
 
Recommendation 4.3: States should require the drafting of a fiscal impact statement for each initiative proposal. The statement should appear on the petition, in the voter information pamphlet, and on the ballot.
 
It is currently the law in 12 states that, if a proposed initiative will have a monetary effect on the state's budget, a fiscal impact statement must be drafted (see table 9). A legislative fiscal agency generally writes it, and it appears on the petition, in the voter info pamphlet, and/or on the ballot.
 

Table 9. Fiscal Impact Statements

 
Who Prepares It
Where It Is Published
Arizona
Joint Legislative Budget Cmte. (after measure qualifies for ballot)
Voter information pamphlet
California
Dept. of Finance, Joint Legislative Budget Cmte., and Attorney General
Petition, voter information pamphlet, and ballot (included in title prepared by Attorney General)
Colorado
Director of Research of the Legislative Council
Voter information pamphlet
Mississippi
Legislative Chief Budget Officer
Petition, voter information pamphlet, and ballot (included in text)
Missouri
State Auditor and Attorney General
Petition, voter information pamphlet, and ballot (included in title)
Montana
Budget Director
Petition, ballot and voter pamphlet
Nevada
Secretary of State, in consultation with the Fiscal Analysis Division of the Legislative Counsel Bureau
Ballot, voter information pamphlet
Ohio
Tax Commissioner
Voter information pamphlet
Oregon
Secretary of State, Treasurer, Director of Dept. of Administrative Services, and Director of Dept. of Revenue
Voter information pamphlet, ballot
Utah
Office of Legislative Research
Voter information pamphlet
Washington
Office of Financial Management, in consultation with the Secretary of State, Attorney General, and any other appropriate state or local agency
Voter information pamphlet, Secretary of State Web site
Wyoming
Secretary of State and/or initiative sponsors*
A newspaper of general circulation in state and ballot
*If the final estimated fiscal impact by the Secretary of State and the final estimated fiscal impact by the committee of sponsors differ by more than twenty-five thousand dollars ($25,000.00), the Secretary of State's comments under this section and the ballot proposition (published in newspaper and ballot) shall contain an estimated range of fiscal impact reflecting both estimates.
Source: National Conference of State Legislatures, April 2002.
 
One may argue that, even if voters have fiscal information, it is meaningless unless the public knows how big the budget is. Simply attaching a dollar amount to a measure may not provide enough information. To make a fiscal statement meaningful, it must be considered in the context of the fiscal resources of the state. Suggestions include printing pie charts or graphs to illustrate the fiscal impact of the proposed measure in the context of state resources. The City Club of Portland, Oregon, recommended in 1996 that the Secretary of State be required to prepare a general statement in the Voters' Pamphlet that lists the estimated financial effects of each ballot measure upon the general fund and the combined effect if all were to be approved.
 

Case Study: Fiscal Analysis

California

If the Attorney General determines that the initiative measure requires a fiscal analysis, the Department of Finance and the Joint Legislative Budget Committee are required to prepare an analysis within 25 working days from the date they receive the final version of the proposed initiative measure. The fiscal analysis includes either the estimate of the amount of any increase or decrease in revenues or costs to state or local governments, or any opinion as to whether a substantial net change in state or local finances would result if the proposed initiative measure is adopted. The fiscal analysis is part of the measure's title prepared by the Attorney General, which appears both on petitions and on the ballot. It is also included in the voter information pamphlet.
 

Technical Challenges: Ballot Titles, Summaries and Fiscal Notes

If a sponsor or other qualified voter is dissatisfied with a title, summary or fiscal analysis, most states have a procedure for challenging and petitioning to change it. In some cases, however, the outcome of challenges is not decided until after the election, often after an initiative has been passed by the voters.
 
Proponents have expended a great deal of effort-and often a great deal of money, as well-to gather signatures and qualify an initiative, and are justified in judging it unfair when a measure is stricken by the court for a technical reason after it has passed.
Although building a time period and a process for technical challenges into the certification process cannot prevent post-election challenges entirely, it can encourage such challenges at an early stage in the process.
 
Recommendation 4.4: States should establish a review process and an opportunity for public challenge of technical matters, including adherence to single subject rules, and ballot title, summary and fiscal note sufficiency, to be made prior to the signature-gathering phase.
 
Similar reforms have been advocated by the following:
 
Wayne Pacelle, Humane Society of the United States (in testimony before the task force, February 2002),
M. Dane Waters, I&R Institute (in testimony before the task force, December 2001), and
Citizens' Commission on Ballot Initiatives (California, 1994).
 
Nebraska's challenge process, similar to other states', serves as an example for how the process generally works. Any person dissatisfied with the title provided by the Attorney General may file a petition with the district court, asking for a different title and setting forth the reasons why the title prepared by the Attorney General is insufficient or unfair. The challenge must be filed within 10 days of the Attorney General's decision. The district court then examines the measure, hears arguments, and certifies to the Secretary of State a ballot title for the measure in accord with the intent of the proposed initiative.
 
In most states, any challenges to the title or summary of a ballot measure must take place during the certification process; that is, before signature collection. However, in at least two states, ballot titles are reviewed after signature collection.
 
In Arkansas, the state Supreme Court hears challenges to ballot titles only after the signature-gathering phase is complete and a measure is certified for the ballot. In considering titles, the court either allows or disallows the initiative; it makes no attempt to rewrite the title. If a title is disallowed, the measure is stricken from the ballot and proponents must start over.
 
In Florida, petitioners gather at least 10 percent of required signatures, then submit the ballot title for approval. Proponents write their own title, which includes a 15-word caption and a 75-word explanatory statement. The Attorney General must submit the initiative to the state Supreme Court for single-subject review and to ascertain that the ballot title and summary comply with requirements for clarity and common language. The court cannot rewrite the title, and if it disallows the title, all signatures gathered to date are invalidated and proponents must start over. The court's strict application of the single-subject rule since 1994 has resulted in a steep drop in the number of initiatives that appear on the ballot in Florida. This pre-election judicial review, mandatory for all initiatives in Florida, is the only instance of a mandatory pre-election judicial review among all 24 initiative states.
 
The timing of title and summary challenges in Arkansas and Florida is highly controversial, and most initiative proponents regard it as unfair. Initiative proponents are forced to circulate a petition with a title that may later be ruled invalid, thus disqualifying their initiative. Proponents may have spent large sums of money in the qualification phase, and thus are resentful of last-minute court rulings that remove their otherwise qualified measure from the ballot.
 

Case Study: Technical Challenges

Washington, D.C.

In Washington, D.C., a time period and process for technical challenges are built into the certification process, thereby reducing instances of post-election technical challenges. The Board of Elections and Ethics drafts for each proposed initiative measure a short title (not more than 15 words), a true and impartial summary statement (not more than 100 words), and the proper legislative form of the measure. These are formally adopted by the board at a public meeting, and the initiative sponsor must be notified of the exact language within five days of adoption. Also within five days of adoption, the board must publish the exact language in the District of Columbia Register. Any registered voter in the district who objects to the title, summary or legislative form may seek review in the Superior Court of the District of Columbia within 10 days of the publication of the language. The court is required to expedite consideration. If no review is sought during this time period, the title, summary and legislative form are deemed to be accepted by the board.
 
Single-subject challenges also are encouraged during the certification process in Washington, D.C. The board may refuse to accept an initiative measure submitted if it determines that the measure is not a proper subject of the initiative. When that occurs, the person submitting the measure has 10 days after the board's refusal to apply to the Superior Court of the District of Columbia to compel the board to accept the measure.

 Other Ideas for Reform

Post-Election Court Challenges


The number of initiatives challenged post-election in the courts has risen steadily in recent decades. One study of initiatives passed in four states over a 40-year period found that about half the initiatives passed during that time were challenged in court and more than half of those challenged are held unconstitutional, at least in part.
 
Initiative proponents look to the courts routinely when they feel the initiative process itself is in jeopardy. For example, consider the suit pending over whether petitioners can gather signatures on U.S. Postal Service property (Initiative & Referendum Institute vs. United States Postal Service (U.S. District Court for the District of Columbia 1:00CV01246)). The suit seeks to overturn the Postal Service's regulation prohibiting citizens from collecting signatures on initiative petitions on postal property.
 
Opponents of initiatives look to the courts just as often as proponents, however. When they fail to achieve their political aim at the ballot box, they frequently take the fight to the courts.
 
Another reason initiatives often end up in court after they are passed is that they are technically flawed. Initiatives are drafted in private, often without the benefit of expert analysis from legislative bill drafters. They are not subject to committee hearings, where testimony may be offered both in support and in opposition to them. They do not go through the process of consideration and amendment by two bodies before their final approval. In summary, initiatives are not forced through the same process of dissection and refinement that a bill must endure before it becomes law. As a result, the initiatives that the public votes on often contain errors, unintended consequences, conflicting sections, or unconstitutional provisions.
 
Critics of the initiative system believe that post-election court challenges are dangerous to the U.S. system of government. Challenges anger citizens, who often may assume that an initiative would not have made it to the ballot if it were not constitutional, and they force judges to make political decisions that are more appropriately made by the legislature.
 
Oregon provides a recent example of how judicial involvement in the initiative process can rapidly grow. An initiative was recently challenged in Oregon on the grounds that it violated the state's single subject requirement. The state's Supreme Court agreed that it did, and declared the measure unconstitutional. That case spurred other single-subject challenges, most notably a successful challenge to the state's term limits law. Term limits proponents, angered by the fact that term limits were declared unconstitutional because they violated the single-subject rule, have vowed to search Oregon's initiative history and challenge as many as they can find on single-subject grounds, which could wreak havoc on Oregon's laws and its judicial system.
 
Recent reform proposals addressing the proliferation of post-election court challenges have been suggested in Nebraska and Washington. House Bill 1732 from Washington's 2001 legislative session would have formed a three-member ballot measure review committee. The Secretary of State would be permitted to request an opinion as to the constitutionality of any proposed initiative measure from this committee. After reviewing a measure, the committee would issue a report, including a summary of 100 words or less, stating its opinion on the measure's constitutionality. The summary would appear in the voter information pamphlet. A proponent dissatisfied with the committee's opinion would be permitted to petition a review by the state Supreme Court. The court would consider whether the committee's report is fair and reasonable, and may either permit the publication of the summary, enjoin its publication, or rewrite it. The committee's reports could not be cited or construed in other cases as decisions on constitutionality, and the judicial review provided for in this measure would not preclude any court from subsequent consideration of the constitutionality of a measure. Rather, the review process might give early warning to initiative proponents of potential problems in their proposal. At a bare minimum, the review process would simply generate more information for voters to consider as they cast their votes. The California Policy Seminar made a similar recommendation in 1991.
 
The Nebraska Legislature passed a similar proposal in the 1999-2000 biennium, but it was not approved by the governor. LB 729 would have permitted the Secretary of State to reject any petition that was constitutionally suspect. That would have enabled proponents to take it to court for an expedited hearing. Under this plan, the constitutionality of many initiative measures could be determined early in the process, before initiative proponents have spent large amounts of time and money in the signature-gathering and campaigning stages of the process.
 

Recent Legislative Action

 
Nine states introduced 59 bills regarding pre-circulation requirements-which include drafting measures, ballot titles, summaries and fiscal impact statements-between 1999 and 2002. Highlights include the following:
  • In Oregon, the deadlines for the Secretary of State to send ballot title comments to the Attorney General, the time period for Attorney General to revise draft ballot title, and the deadline for a person seeking review of a ballot title have been modified.
  • In Utah, title naming conventions were established for ballot propositions submitted to the voters, and the standard of review in writing and judicially reviewing initiative and referendum ballot titles was clarified.
  • In 2002, Washington passed SB 6571, requiring that a fiscal impact statement be drafted by the Office of Financial Management for all initiatives that appear on the ballot, legislative alternatives to initiatives on the ballot, and referenda, including those referred to the ballot by the legislature. The new law requires the Secretary of State to make the statement available online and include it in the state voters' pamphlet.
  • In 2000 and 2001, Colorado passed bills that require fiscal impact statements on all initiative measures and specify the content of the statements.
  • A failed 2001 bill in Arizona would have created an eight-member Citizen Ballot Measure Committee and transferred the responsibility for drafting analyses of initiative proposals from the Legislative Council to the new committee. The committee members would have been appointed by the House and Senate majority and minority leadership.

5. The Signature-Gathering Phase

Recommendations

Recommendation 5.1: States should require that initiative proponents file a statement of organization as a ballot measure committee prior to collecting signatures. States should void any signature that is gathered before a statement of organization is filed.
 
Recommendation 5.2: States should provide for safeguards against fraud during the signature-gathering process. Safeguards should include:
 
A. Prohibiting the giving or accepting of money or anything else of value to sign or not sign a petition.
B. Requiring a signed oath by circulators, stating that the circulator witnessed each signature on the petition and that, to the best of the circulator's knowledge, the signatures are valid.
C. Requiring circulators to disclose whether they are paid or volunteer.
 
Recommendation 5.3: States should provide for an adequate but limited time period for gathering signatures. The deadline for submission should allow a reasonable time for verification of signatures before the ballot must be certified.
 
Recommendation 5.4: States should establish a limit on the length of time that verified signatures are valid.
Recommendation 5.5: States should require a higher number of signatures for constitutional amendments than is required for statutory initiatives.
 
Recommendation 5.6: To achieve geographical representation, states should require that signatures be gathered from more than one area of the state.
 
Recommendation 5.7: Each state should establish a uniform process for verifying that the required number of valid signatures has been gathered.

Overview

Signature gathering is the most fundamental part of the initiative process, and the most thoroughly populist and grassroots part. The purpose of signature requirements is to demonstrate that an initiative has a certain level of public support before it goes to the ballot.
 

Statement of Organization

In some states, the campaign finance disclosure requirements do not take effect until a petition is qualified for the ballot. The task force believes that the money spent earlier in the process, particularly the money and sources of money spent on gathering signatures, is of equal importance to money spent on campaigning. Citizens should have access to information about who is circulating a petition before they decide to sign it.
 
Recommendation 5.1: States should require that initiative proponents file a statement of organization as a ballot measure committee prior to collecting signatures. States should void any signature that is gathered before a statement of organization is filed.
 

Fraud in the Signature-Gathering Process

 

Paid vs. Volunteer Petitioners

Professional signature gathering has long been a part of initiative politics. Paid signature gatherers were common in both California and Oregon in the early 1900s. Banning paid signature gatherers, an early idea, was seen as a way to stop wealthy individuals or groups from buying their way onto the ballot. Ohio, South Dakota and Washington passed bans on paid signature gatherers in 1913 and 1914. Oregon passed a ban in 1935, Colorado in 1941, and Idaho and Nebraska in 1988. Until the 1980s, courts upheld bans on paid signature gatherers. That changed in 1988, when the U.S. Supreme Court invalidated Colorado's ban in the Meyer vs. Grant, 486 U.S. 414 (1988) decision.
 
Five states-Maine,Mississippi, North Dakota, Washington and Wyoming-tried to ban payment per signature, but to permit payment on a salary or hourly basis. All but North Dakota's and Wyoming's have been invalidated by courts.
 
Today, the vast majority of petition campaigns use paid circulators, who are paid between $1 and $3 per signature. Very few campaigns attempt to qualify an initiative petition with volunteer circulators, and even fewer do so successfully. Paid drives, on the other hand, are much more successful. A campaign that has adequate funds to pay circulators has a nearly 100 percent chance of qualifying for the ballot in many states.
 
The increase in reliance on paid circulators has increased the cost of qualifying an initiative. In California, it now costs more than $1 million. In Oregon, costs for qualifying ballot measures for the 2000 election ranged from $65,000 to $400,000, with most spending in the neighborhood of $100,000 to $150,000. Average costs in other states generally range between $70,000 and $100,000.
 
Oregon has tried a new idea for regulating paid circulators. The state defines paid circulators as employees (in other states they generally are defined as independent contractors), making them eligible for unemployment benefits. Signature collection firms now must pay payroll taxes and unemployment insurance premiums and must meet minimum wage requirements.
 
The U.S. Supreme Court's opinions on petition circulators have made the prevention of fraud in the signature gathering process very difficult for states. Since the 1988 Meyer vs. Grant decision invalidated state bans on paid signature gatherers, it has become more difficult to regulate the signature gathering process. The argument that payment for signatures promotes fraud has met with mixed reactions in courts around the country. A federal judge in North Dakota agreed, and upheld North Dakota's ban on payment-per-signature (hourly or salaried payments are permissible in North Dakota). Federal judges in Maine and Washington, however, disagreed, and found no evidence of fraud among paid signature gatherers. A more worthy argument that is less often cited is that prohibiting payment for signatures protects the integrity of the initiative process by encouraging grassroots efforts that can succeed on nothing more than popular support and discourages signature gathering efforts that can succeed only with large sums of money. Nevertheless, the U.S. Supreme Court has removed the ban on paid signature gatherers from initiative reformers' agendas.
 

Registered Voter and Residency Requirements


In 1999, the U.S. Supreme Court struck down a Colorado law stipulating that only Colorado registered voters could circulate initiative petitions in Victoria Buckley vs. American Constitutional Law Foundation, 119 S. Ct. 636 (1999). Colorado argued that it should be able to limit the ability to circulate petitions to those who are also qualified to vote on them. At least 13 other states were affected by Buckley vs. ACLF because they had similar laws. Other states, including Mississippi, North Dakota and Oklahoma, require that circulators be residents of the state. Many of the states that previously had registered voter requirements changed their laws to require that circulators be residents, including Arizona, California, Idaho, Maine, Missouri, Utah and Wyoming. This requirement has fared better in the courts than the registered voter requirement, with federal courts upholding Maine's and Mississippi's residency requirements.
 
If states cannot ban paid signature gatherers and they cannot require that signature gatherers be registered voters in the state, what can they do to ensure the integrity of the petition process and protect it from fraud? They can enact laws that specifically address and prohibit clear instances of fraud in the petition process.
 
Recommendation 5.2: States should provide for safeguards against fraud during the signature-gathering process. Safeguards should include:
 
A. Prohibiting the giving or accepting of money or anything else of value to sign or not sign a petition.
B. Requiring a signed oath by circulators, stating that the circulator witnessed each signature on the petition and that, to the best of the circulator's knowledge, the signatures are valid.
C. Requiring circulators to disclose whether they are paid or volunteer.
 
At least 10 states prohibit the giving or accepting of money or anything else of value to sign or not sign a petition. Those states are:
 
Arizona
Mississippi
California
Nebraska
Colorado
Ohio
Idaho
Washington
Maine
Wyoming

Sixteen states currently require that petition circulators witness the placing of signatures on the petition, and that they sign an oath affirming that to the best of their knowledge, each signature is valid. Such an oath can discourage the kind of fraud some states have witnessed. For example, in 1998 in Arkansas, it was discovered that a circulator had forged several hundred signatures on a petition to do away with property taxes. Other circulators turned in petitions with signatures they had not witnessed, thus invalidating those signatures. The petition eventually was stricken from the ballot after numerous instances of fraud in the petitioning process were proven.

 

At least 10 states currently require circulators to disclose whether they are paid or volunteer, most often on the petition form itself.
 

Table 10. Paid/Volunteer Status Must be Disclosed

 
Where Disclosed
Alaska
On the petition
Arizona
On the petition
Colorado
On a name tag
Idaho
On the petition
Missouri
Must file a form with the Secretary of State
Nebraska
On the petition
North Dakota
Disclosed on registration form filed with the Secretary of State
Ohio
On the Circulator's Compensation Statement (part of the petition)
Oregon
On the petition
Wyoming
On the petition
Source: National Conference of State Legislatures, February 2002.
 

Circulation Periods

In most states, petitioners have a limited period of time during which to gather the requisite signatures. The limits range from 60 days (Massachusetts) to four years (Florida). In 17 of the 24 initiative states, circulators have a year or more to gather signatures. In Arkansas, Ohio and Utah, no time limits are set for circulating petitions. Table 11 summarizes circulation periods in the initiative states.
 

Table 11. Circulation Periods

 
Circulation Period
Submission Deadline
Alaska
1 year
Prior to the date the Legislature convenes (January)
Arizona
2 years
120 days before the election
Arkansas
Unlimited
120 days before the election
California
150 days
150 days after issuance of official summary; will be placed on the ballot in the next election that is at least 131 days after it is submitted
Colorado
6 months
3 months before the election
Florida
4 years
91 days before the general election
Idaho
18 months or until April 30 in an election year, whichever occurs earlier
May 1 in the year an election on the initiative will be held, or 18 months from the date the petitioner receives the official ballot title from the Secretary of State, whichever is earlier
Illinois
2 years
 
Maine
1 year
On or before 50th day after the convening of the Legislature in first regular session; on or before the 25th day after the date of convening of the Legislature in the second regular session
Massachusetts
60 days to submit to legislature; 42 days if legislature fails to act
14 days before the first Wednesday in December
Michigan
180 days
Constitutional: 120 days before the election
Statutory: 10 days before beginning of a legislative session
Mississippi
1 year
90 days before the first day of the legislative session
Missouri
18 months
6 months prior to the date of the next regular election
Montana
1 year
By the third Friday of the fourth month preceding the election
Nebraska
2 years
4 months prior to the general election
Nevada
Constitutional: 291 days
Statutory: 316 days
Constitutional: third Tuesday in June of an even-numbered year
Statutory: second Tuesday in November of an even-numbered year
North Dakota
1 year
90 days before the election
Ohio
Unlimited
Constitutional: 90 days prior to the general election
Statutory: 10 days prior to legislative session
Oklahoma
90 days
60 days prior to the date of the next general election
Oregon
2 years
120 days prior to the general election
South Dakota
1 year
Constitutional: 1 year before the next general election
Statutory: first Tuesday in May in a general election year
Utah
Unlimited
Before June 1
Washington
Direct: 6 months
Indirect: 10 months
Direct: 4 months prior to the next state general election
Indirect: 10 days before the regular session of the Legislature
Wyoming
18 months
Prior to the date the Legislature convenes for a regular session
Source: National Conference of State Legislatures, May 2002.
 
Interestingly, longer circulation periods do not necessarily lead to an increased number of initiatives on the ballot. Some of the states with the longest circulation periods-such as Florida and Illinois-have very few measures on the ballot. Some states with the shortest circulation periods-such as California, Colorado and Washington-are among the states with the highest number of initiatives that reach the ballot. Providing more time for gathering signatures, therefore, should not lead to a flood of initiatives on the ballot.
 
The length of the circulation period is important to volunteer efforts, and increasing the time for gathering signatures may be beneficial. Volunteer efforts are time-consuming because they often are less well-organized and more often are subject to disruptions when volunteers fail to show up. Longer circulation periods clearly benefit volunteer petition drives.
 
Recommendations 5.3: States should provide for an adequate but limited time period for gathering signatures. The deadline for submission should allow a reasonable time for verification of signatures before the ballot must be certified.
 
Recommendation 5.4: States should establish a limit on the length of time that verified signatures are valid.
 
Crafting an appropriate limit on circulation periods is a delicate task. If the period is too short, volunteer efforts will be disadvantaged. However, if the period is too long, there is a risk that voters may have moved between the time they signed the petition and the time it is submitted for verification, thus resulting in a higher percentage of invalid signatures.
 

Signature Requirements

 
State signature requirements for ballot access vary widely. Signature requirements usually are based on a percentage of votes cast for a particular office-most often the office of governor-in the most recent election. In a few states, the requirement is based on total votes cast, total registered voters, or total state residents.
 
In most states that have both a statutory and constitutional initiative process, there is a higher signature threshold to qualify a constitutional initiative. The only exceptions are Colorado, Massachusetts and Nevada. The distinction exists because it is widely believed that amending the constitution should be more difficult than amending the statutes. Some reformers, however, argue that a more effective manner of achieving this goal would be to require a higher vote to approve constitutional initiatives than statutory initiatives. This argument is supported by the fact that the higher signature threshold for constitutional initiatives is rarely a barrier to achieving ballot status, provided proponents have ample funds to pay signature gatherers. Nevertheless, it is the belief of this task force that the sanctity of state constitutions demands that constitutional amendments be held to a higher standard of popular support than statutory initiatives, including signature thresholds for ballot access.
 
Recommendation 5.5 States should require a higher number of signatures for constitutional amendments than is required for statutory initiatives.
 
Percentage requirements for signatures on statutory initiatives range from a low of 2 percent of the resident population in North Dakota (12,844 for 2002 ballot access), to a high of 15 percent of the total number of votes cast in the preceding election in Wyoming (33,253 signatures for 2002 ballot access). However, because Wyoming is a small population state, there are other states where the actual number of signatures that must be gathered is higher. The highest actual signature requirement for 2002 ballot access is California, where 419,260 signatures are required to place a statutory initiative on the 2002 ballot (equal to 5 percent of the votes cast for governor in the last election).
 
Percentage requirements for signatures on constitutional amendments range from a low of 3 percent of total votes cast for governor in Massachusetts (57,100 for 2002 ballot access), to a high of 15 percent of total votes cast for governor in Arizona (152,643 for 2002 ballot access) and Oklahoma (185,145 for 2002 ballot access). Once again, however, thanks to its large population, California has the highest total actual signature requirement for 2002 ballot access at 670,816 (equal to 8 percent of the votes cast for governor in the last election).
 

Geographic Distribution Requirements

 
Many initiative states are primarily rural, with a substantial proportion of their populations centered in a few urban areas. In states that follow this population pattern but that lack a geographic distribution requirement for signatures, it is not only possible but common for initiative proponents to gather all their signatures in the state's largest city. The voters in the largest city, therefore, may decide for the state as a whole what issues make the ballot and what issues do not. Such a system gives urban voters an unfair advantage over rural voters.
 
Recommendation 5.6: To achieve geographical representation, states should require that signatures be gathered from more than one area of the state.
 
Thirteen of the 24 initiative states currently require that signatures be gathered from around the state. Supporters of geographic distribution requirements say they are important because they force initiative proponents to demonstrate that their proposal has support statewide, not just among the citizens of the state's most populous region. Critics say geographic distribution requirements place an unfair burden on initiative proponents, since it is much more difficult to gather signatures in rural areas than it is in urban areas. They also claim that such requirements mean that fewer initiatives qualify for the ballot.
 
Polling data suggests that voters generally support the idea of requiring initiative proponents to gather their signatures from various parts of the state. In fact, as recently as 1998, voters in Wyoming approved of a legislative proposal to make that state's geographic distribution requirement even more restrictive. A February 1995 poll conducted by the City Club of Portland showed that Oregon voters also supported a geographic distribution requirement. The fact that they later rejected a 2000 constitutional amendment on this very issue may reflect their dissatisfaction with the stringency of that particular proposal, rather than a drop-off in support for the general idea of geographic distribution requirements.
 
It should be noted that Idaho's geographic distribution requirement was held unconstitutional by a U.S. District Court in December 2001. In addition to a total number of signatures equal to 6 percent of the state's registered voters at the time of the last general election, proponents had to gather signatures from 6 percent of the registered voters in 22 of the state's 44 counties. The decision currently is on appeal in the 9th U.S. Circuit of Appeals, and it is unclear at this time whether this decision, if upheld, would affect geographic distribution requirements in other states. The 9th Circuit includes Montana and Nevada, which also have geographic distribution requirements.
 
Tables 12 and 13 summarize the signature requirements for statutory and constitutional initiatives, including geographic distribution requirements.
 

Table 12. Signature Requirements - Statutory Initiatives

 
Statutory Initiatives
   
 
Signatures
2002 Actual Requirement
Geographic
Distribution
Alaska
10% of total votes cast in last general election
22,716
At least one signature by voters resident in each of at least 2/3 of 27 election districts
Arizona
10% of votes cast for governor in last election
101,762
None
Arkansas
8% of votes cast for governor in last election
56,481
Signatures from 4% of registered voters from at least 15 of 75 counties
California
5% of votes cast for governor in last election
419,260
None
Colorado
5% of votes cast for sec. state in last election
80,571
None
Florida
N/A
   
Idaho
6% of qualified electors in previous election
43,685
6% of registered voters from each of 22 counties*
Illinois
N/A
   
Maine
10% of votes cast for governor in last election
42,101
None
Massachusetts
3% of votes cast for governor in last election
57,100
No more than 25% of signatures may be from one county
Michigan
8% of votes cast for governor in last election
242,168
None
Mississippi
N/A
   
Missouri
5% of votes cast for governor in last election
117,342
5% of votes cast for governor in last election from 6 of the 9 congressional districts
Montana
5% of qualified electors in state at large
20,510
At least 5% of voters in at least 34 of the 100 legislative districts
Nebraska
7% of registered voters at the filing deadline
75,969
5% of registered voters in 38 of the 93 counties
Nevada
10% of total votes cast in last general election
61,336
10% of total votes cast in the last general election from at least 13 of the 17 counties
North Dakota
2% of resident population of the state
12,844
None
Ohio
3% of votes cast for governor in last election
100,626
1.5% of total vote cast for governor in last election from 44 of the state's 88 counties
Oklahoma
8% of votes cast in last state election for the office receiving the highest number of votes
98,744
None
Oregon
6% of votes cast for governor in last election
66,786
None
South Dakota
5% of votes cast for governor in last election
13,010
None
Utah
Direct: 10% / Indirect: 5% of votes cast for governor in last election
Direct: 78,458
Indirect: 39,229
Direct: 10% / Indirect: 5% of votes cast in at least 20 of the counties
Washington
8% of votes cast for governor in last election
197,734
None
Wyoming
15% of total votes cast in last general election
33,253
15% of residents in at least 2/3 of the state's 23 counties
* Held unconstitutional by U.S. District Court in December 2001; pending appeal in the 9th U.S. Circuit
Court of Appeals.
Source: National Conference of State Legislatures, January 2002.
 

Table 13. Signature Requirements - Initiated Constitutional Amendments

 
Constitutional Initiatives
 
Signatures
2002 Actual Requirement
Geographic Distribution
Alaska
N/A
Arizona
15% of votes cast for governor in last election
152,643
None
Arkansas
10% of votes cast for governor in last election
70,601
Signatures from 5% of registered voters from at least 15 of 75 counties
California
8% of votes cast for governor in last election
670,816
None
Colorado
5% of votes cast for sec. state in last election
80,571
None
Florida
8% of total votes cast statewide in last presidential election
488,722
8% in at least 12 of the state's 23 congressional districts
Idaho
N/A
Illinois
8% of total votes cast for governor in last election
268,693
None
Maine
N/A
Massachusetts
3% of votes cast for governor in last election
57,100
No more than 25% of signatures may be from one county
Michigan
10% of votes cast for governor in last election
302,710
None
Mississippi
12% of votes cast for governor in last election
91,673
No more than 1/5 total signatures from one congressional district
Missouri
8% of votes cast for governor in last election
187,746
8% of votes cast for governor in last election from 6 of the 9 congressional districts
Montana
10% of qualified electors in state at large
41,020
At least 10% of voters in at least 40 of the 100 legislative districts
Nebraska
10% of registered voters at the filing deadline
108,527
5% of registered voters in 38 of the 93 counties
Nevada
10% of total votes cast in last general election
61,336
10% of total votes cast in the last general election from at least 13 of the 17 counties
North Dakota
4% of resident population of the state
25,688
None
Ohio
10% of votes cast for governor in last election
335,421
None
Oklahoma
15% of votes cast in last state election for the office receiving the highest number of votes
185,145
None
Oregon
8% of votes cast for governor in last election
89,048
None
South Dakota
10% of votes cast for governor in last election
26,019
None
Utah
N/A
Washington
N/A
Wyoming
N/A
 
Source: National Conference of State Legislatures, January 2002.
 

Verifying Signatures

 
Recommendation 5.7: Each state should establish a uniform process for verifying that the required number of valid signatures has been gathered.
 
States use various methods to verify the number of valid and correct signatures gathered on a petition, and states vary in whether signatures are checked at the state or county/local level. In 15 states, verification is conducted by the state's chief election official. In nine states, it is done at the county level and forwarded to the appropriate state official.
 
The second major area of variation is whether validation is accomplished by counting or verifying each signature or by employing a random sampling formula. Ten states verify signatures using a random sampling method. It is most common in states that use a random sample method that at least 5 percent of the signatures gathered be verified. In Montana, county officials verify all names and signatures and then randomly select signatures to be checked against voter registration records.
 
North Dakota and Ohio are unique. Since North Dakota does not have voter registration, sponsors must collect signatures of people who legally reside in the state. The Secretary of State is responsible for conducting a representative sampling of signatures using postcards, phone calls and other methods to verify residency. In Ohio, signatures are presumed valid unless otherwise proven. Anyone may file with the board of elections challenging the validity of any signature(s). If a sponsor does not have enough signatures after filing the petition with the Secretary of State, the sponsor is allowed 10 additional days to collect the correct number of signatures.
 
The timeframe for verifying signatures averages about one month. Most states allow petitioners to observe the verification process. In Arkansas and Ohio, if a petition does not have the required number of valid signatures, an additional time period (30 days in Arkansas and 10 days in Ohio) is allowed to gather the remaining signatures. Most states, however, automatically disqualify a proposed initiative if it does not have enough valid signatures.
 
Table 14 summarizes the various methods of verifying signatures on initiative petitions.
 

Table 14. Method of Signature Verification

 
Method of Signature Verification
Alaska
Actual; signatures are verified by Lt. Governor until correct number is met
Arizona
Random; 5% of total number of signatures must be verified by county recorders with equal chances for any signature to be chosen
Arkansas
Actual; signatures are verified by the Secretary of State's office, which may contract with various county clerks for assistance
California
Random; Secretary of State verifies total number of signatures, county election officials then conduct random sampling; required to verify 500 signatures or 3% of signatures filed, whichever is greater
Colorado
Random; at least 5% or 4,000 signatures must be verified by Secretary of State
Florida
Actual; every signature is checked by Supervisor of Elections of each county; sponsor must pay $0.10 for each signature checked or the actual cost of checking the signatures to supervisor at the time the petition is submitted; if the sponsor is unable to pay, a statement of undue burden given under oath must be submitted; a sponsor using paid signature gatherers may not submit statement
Idaho
Actual; county clerk verifies each signature, then files petition with Secretary of State
Illinois
Random and actual; state Board of Elections conducts random sampling of signatures and then transmits list to county election officials for individual verification; sampling must include: 10% of the signatures if 5,010 or more signatures are involved; or 500 signatures if more than 500 but less than 5,010 signatures are involved; or all signatures if 500 or less signatures are involved
Maine
Actual; Secretary of State verifies every signature
Massachusetts
Actual; signatures must be verified by a majority (at least three) of the local registrars or election commissioners in the city or town in which the signatures were collected
Michigan
Actual; the board of state canvassers verifies the correct number of signatures and that each signer is a qualified registered voter; the qualified voter file may be used to determine the validity of petition signatures by verifying the registration of signers
Mississippi
Actual; county Circuit Clerk of each county where the petition was circulated verifies every signature, then submits the petition to the Secretary of State
Missouri
Actual or random (at discretion of Secretary of State); if random sampling is used, the method is determined by the Secretary of State and shall include examination of 5% of signatures collected
Montana
Actual and random; county official verifies that each signer is a registered voter and also randomly selects signatures to check against voter registration records
Nebraska
Actual; local election officials verify all signatures using voter registration records; Secretary of State double checks total number of valid signatures
Nevada
Actual and random; county clerks/registrars verify the total number of signatures and forward the number to the Secretary of State, who verifies the raw count and, if the total number of signatures is correct, notifies county clerks/registrars to begin verifying each signature; if there are greater than or equal to 500 signatures, clerk/registrar conducts a random sample of 500 or 5% of signatures
North Dakota
Random; since N.D. does not have voter registration, sponsor must collect signatures of residents; Secretary of State then conducts a representative sampling of signatures using postcards, phone calls, or other methods to verify signatures
Ohio
Signatures are presumed to be valid unless proved otherwise; if more signatures are needed, sponsors are allowed 10 additional days to file signatures
Oklahoma
Actual; Secretary of State counts and verifies every signature
Oregon
Random; Election Division verifies the number of signatures and randomly selects (using a computer-generated report) samples of signatures to send to county election officials for individual verification
South Dakota
Actual; every signature is verified until the minimum number of signatures is reached
Utah
Actual; county clerks verify every signature
Washington
Actual or random (at discretion of Secretary of State); Secretary of State verifies each signature unless the number of signatures filed is substantially in excess of the minimum needed, in which case the Secretary of State may use a random sampling process to verify signatures
Wyoming
Actual; Secretary of State verifies every signature
Source: National Conference of State Legislatures, January 2002.
  

Other Ideas for Reform

 
One suggestion for reform is to decrease the number of signatures needed for qualification. This would reduce the amount of time and money needed to both gather the signatures and to verify them. The task force does not support this reform but, rather, believes that the demonstration of a substantial degree of popular support, represented by signatures on a petition, is an important step in gaining ballot access.
 
Another suggested reform is to allow petitioners to turn in signatures periodically throughout the circulation phase. This would allow proponents to know how many signatures they still need to gather, and it would help to alleviate the burden of counting a large volume of signatures at one time.
 
Perhaps the most intriguing suggestion for reforming the signature-gathering process is the establishment of a bifurcated system for signature gathering, such that each signature gathered by a volunteer is worth more than a signature gathered by a paid circulator. Such a plan would provide an incentive for initiative campaigns to use volunteer circulators, but would not penalize efforts that use paid circulators. An initiative reform task force in Nebraska considered such a plan in 1995, but did not carry it forward due to concerns about its constitutionality. Disagreement exists among scholars as to whether a bifurcated system would pass constitutional muster, and it will be impossible to know for sure until a state adopts it.
 

Recent Legislative Action

 
Changing signature requirements, filing deadlines, and regulations on petition circulators were among the most common topics of initiative reform legislation between 1999 and 2002.
  • Six states considered changing the filing deadline for initiative petitions. Oregon placed a measure on the March 2000 ballot to change the filing deadline from four months to five months before the election, effectively shortening the circulation period by one month but providing more time for signature verification. Voters passed the measure.
  • Thirteen states considered additional regulation of petition circulators. Arizona, California and Idaho established new requirements that petition circulators be state residents. Oregon passed a measure requiring that paid petitioners be identified as such.
  • Three states considered bills designed to combat signature fraud.
  • Thirteen states looked at changing the number of signatures required to qualify a ballot initiative. None enacted a change.
 

6. Voter Education

Recommendations

Recommendation 6.1: States should provide to the public a manual describing the initiative and referendum process.
Recommendation 6.2: States should encourage public education and discussion about measures on the ballot.
Recommendation 6.3: States should produce and distribute a voter information pamphlet containing information on each measure certified for the ballot.
Recommendation 6.4: In addition to a printed voter information pamphlet, states should consider alternative methods of providing information on ballot measures, such as the Internet, video and audio tapes, toll-free phone numbers, and publication in newspapers.

Overview

An important part of the initiative process is educating voters. Most states prepare voter information pamphlets and post election information on the secretary of state's Web page. In addition, proponents and opponents of initiatives put together their own education campaigns to advertise for and inform voters about initiatives that will appear on the ballot.
 

Manual on the Initiative Process

 
Providing citizens with information about how to use the initiative process and the rules and laws that apply is a valuable voter education effort. It helps citizens organize their efforts early in the process and also may help to reduce problems and disputes at later stages of the process.
 
Recommendation 6.1: States should provide to the public a manual describing the initiative and referendum process.
 
This recommendation was also made by the Nebraska Petition Process Task Force in 1995.
 

Public Education and Discussion of Initiative Measures

 
Clearly, one of the most serious criticisms of the initiative process is that voters do not always fully understand the contents of the initiatives on which they are asked to vote. This is due partly to the increasing number of measures on the ballot, resulting in such a large volume of information that it is not reasonable to expect all voters to thoroughly study and understand all issues. Furthermore, many initiative measures are lengthy and complicated and often may be so poorly drafted as to be incomprehensible.
 
Recommendation 6.2: States should encourage public education and discussion about measures on the ballot.
 
Recommendation 6.4: In addition to a printed voter information pamphlet, states should consider alternative methods of providing information on ballot measures, such as the Internet, video and audio tapes, toll-free phone numbers, and publication in newspapers.
 
States have a responsibility to educate voters about measures on the ballot. Better educating voters will lead to improved decision making and, ultimately, to better policy making in the state. In addition to producing a voter information pamphlet (discussed in detail below), states should explore new and innovative ways of conveying information to voters. This might include posting information on the Internet, providing chat rooms for discussion and debate of initiative proposals, holding public hearings and town hall meetings, and providing debates and information on public access television. Each of these venues gives proponents and opponents an opportunity to speak and also provides an event that the media can cover. Media coverage will extend the debate and informational content of state-sponsored voter education efforts to an even broader audience.
 
Other individuals, commissions and task forces that have recommended public and/or legislative hearings on initiatives include:
 
M. Dane Waters, I&R Institute (in testimony before the task force on December 8, 2001),
California League of Women Voters (1999),
Nebraska Petition Process Task Force (1995),
Citizens' Commission on Ballot Initiatives (California, 1994), and
California Commission on Campaign Financing (1992).
 

Case Study: Public Hearings on Initiatives

Mississippi

Mississippi holds public hearings in each congressional district for every initiative measure that is certified for the ballot. At the hearing, a representative from the Secretary of State's office summarizes the measure for the audience, and the proponents and opponents have the opportunity to speak about the initiative. Although public hearings clearly provide a useful forum for debate, discussion and voter education, their value must be weighed in contrast with their cost. In some states-such as Nebraska-that hold public hearings for initiatives, the hearings rarely draw significant participation or media coverage.

Voter Information Pamphlets

 
One of the most commonly used tools for voter education is the voter information pamphlet. These pamphlets provide a great deal of information about ballot issues-and sometimes about candidates, as well. Voters may peruse the pamphlet at their leisure, and may even take it with them into the voting booth. Clearly, voter information pamphlets are a worthy voter education effort.
 
Recommendation 6.3: States should produce and distribute a voter information pamphlet containing information on each measure certified for the ballot.
 
Voter information pamphlets should be user-friendly. They should group related measures, and should use charts and other graphic elements to facilitate comparisons. The information provided for each ballot measure should include the ballot title, an impartial summary, fiscal analysis, arguments for and against each measure, and the text of the proposed law. Some states also include in their ballot pamphlets statements that point out conflicting measures, explaining what will happen if both are adopted. Other states' ballot pamphlets list programs or services that a measure containing an appropriation would take money away from.
 
Voter information pamphlets are required by statute in 14 of the initiative states. In most states, the pamphlets are printed by the state's chief election official and generally include the text of the measure, an impartial analysis or summary, a fiscal impact statement, and arguments for and against the proposed initiative. In Colorado, the Legislative Council is responsible for writing and assembling the pamphlet, which includes a detailed, impartial analysis of each proposed measure and arguments for and against. Table 15 contains detailed information about the production and contents of voter information pamphlets in the initiative states.
 

Table 15. Voter Information Pamphlets

 
Who Prepares and
Distributes
Contents of Pamphlet
Alaska
Lt. Governor
Full text
Ballot title and summary from petition
Neutral summary prepared by Legislative Affairs Agency
Statements for and against (limited to 500 words each)
*Also published in full on Lt. Governor's homepage
http://www.gov.state.ak.us/ltgov/elections/homepage.html
Arizona
Secretary of State prepares; county boards of supervisors distribute
Title
Text
Arguments for and against
Analysis (prepared by Legislative Council).
Summary of fiscal impact statement
*Also published in full on Secretary of State's homepage http://www.sosaz.com/election
Arkansas
N/A
Text of measures published online at http://www.sosweb.state.ar.us/elect.html
California
Secretary of State
Text
Copy of specific constitutional or statutory provision that would be repealed or revised
Arguments and rebuttals for and against
Analysis (prepared by Legislative Analyst)
Fiscal impact estimate
Art work, graphics and other materials that the Secretary of State determines will make pamphlet easier to understand
*Also published in full on Secretary of State's homepage http://www.ss.ca.gov/elections/elections.htm
Colorado
Legislative Council
Title
Text
Impartial analysis, including description of major provisions of proposal and comments on proposal's application and effect (Legislative Council prepares)
Summary of major arguments for and against (Legislative Council prepares)
Fiscal impact statement
*Also published on the Legislative Council's Web page, and hyperlinked from the Secretary of State's page
http://www.sos.state.co.us/pubs/elections/main.htm
Florida
Up to individual counties to prepare if they choose
Varies from county to county
Information also available online at
http://election.dos.state.fl.us/initiatives/initiativelist.asp
Idaho
Secretary of State
Title
Text
Ballot number
Arguments and rebuttals for and against
*Also published in full on Secretary of State's homepage http://www.idsos.state.id.us/elect/eleindex.htm
Illinois
None
N/A
Maine
Secretary of State
Title
Text
Summary of intent and content
Explanation of significance of a "yes" or "no" vote
*Text of measures published in full on Secretary of State's Web site
http://www.state.me.us/sos/cec/elec/
Massachusetts
Secretary of Commonwealth
Title
Text
Summary prepared by Attorney General
Fair and neutral one-sentence statement of the effects of a "yes" or "no" vote (prepared by Attorney General and Secretary of Commonwealth)
Arguments for and against.
*Also published in full at Secretary of Commonwealth's homepage
http://www.state.ma.us/sec/ele/eleidx.htm
Michigan
N/A
Text of each proposal is published online at
Mississippi
Secretary of State
Text
Ballot title (Attorney General drafts)
Ballot summary (Attorney General drafts)
300-word argument for and 300-word argument against
Fiscal analysis (drafted by Legislature's chief budget officer)
*Text of proposals are published online at
http://www.sos.state.ms.us/elections/elections.html
Missouri
Secretary of State
Text
"Plain language" explanation
Fiscal impact statement(State Auditor drafts)
*Also published in one newspaper in each county and online at http://www.sos.state.mo.us/
Montana
Secretary of State prepares; county officials distribute
Title
Text
Impartial summary prepared by Secretary of State
Fiscal impact estimate
Proponent and opponent arguments and rebuttals
*Also published online at
http://www.sos.state.mt.us/css/ELB/Contents.asp
Nebraska
Secretary of State prepares; county clerks distribute
Title
Text
Arguments for and against(Secretary of State drafts)
General Election Voter Information Pamphlet published on Secretary of State's Web site at
http://www.sos.state.ne.us/Elections/election.htm
Nevada
Secretary of State publishes; county clerks distribute
Title
Text
Summary
Arguments for and against
Fiscal impact statement
*Also published online by Secretary of State at http://www.sos.state.nv.us/nvelection/
North Dakota
N/A
Text of proposals are published online at http://www.state.nd.us/sec/Elections/Elections.htm
Ohio
Secretary of State
Ballot title
Impartial statement (prepared by Secretary of State)
Explanation (prepared by Ohio Ballot Board)
Arguments for and against
Information also available online at http://www.state.oh.us/sos/
Oklahoma
House Research, Legal and Fiscal Divisions
Ballot title
Background
Text
Oregon
Secretary of State
Title
Text
Fiscal impact estimate
Explanatory statement (written by committee of five citizens-two members from opponents selected by Secretary of State, two members appointed by proponent's committee, fifth member selected by other four)
Arguments for and against
*Also published in full on Secretary of State's homepage at http://www.sos.state.or.us/elections/other.info/irr.htm
South Dakota
Secretary of State
Ballot title
Text
Explanation and effect (prepared by Attorney General)
Arguments pro and con
*Also published in full on Secretary of State's homepage at http://www.state.sd.us/sos/sos.htm
Utah
Lt. Governor
Ballot number
Ballot title
Final vote cast by Legislature if it is a measure submitted by the Legislature
Fiscal impact estimate
Impartial analysis (prepared by Office of Legislative Research and General Counsel)
Arguments and rebuttals in favor of and against
Text
*Also published online at http://www.elections.utah.gov/
Washington
Secretary of State
Ballot number
Official title
Brief statement of law as it presently exists
Brief statement explaining effect of proposed law
Attorney General prepares)
Total votes for and against by house & senate if measure has been passed by Legislature
Arguments for and against
Names and addresses of those writing arguments
Full text of each measure
*Also published in full on Secretary of State's homepage at http://www.secstate.wa.gov/elections/
Wyoming
N/A
Text of proposals published in full online at http://soswy.state.wy.us/election/election.htm
Source: National Conference of State Legislatures, May 2002.
 
Costs associated with the production, printing and distribution of voter information pamphlets vary from year to year (see table 16). Much of the cost depends upon how many pages are in the pamphlet, whether there is a need to print a supplemental ballot pamphlet (sometimes the case in California), and whether the pamphlet must be available in languages other than English.
 

Table 16. Costs of Voter Information Pamphlets (Selected States)

 
Printing
Postage
Total Printed/Mailed
Sent to
Arizona (00)
$443,376
$190,000
1.3 million/1.1 million
Every registered voter household; county offices
California (02)*
$4.3 million
$2.7 million
12.8 million/10.9 million
See summary
Colorado (00)
$283,000
$192,000
1.6 millioin/1.6 million
Every registered voter household; county offices
Colorado (01)
$96,000
$209,000
1.6 million/1.6 million
Every registered voter household; county offices
Nebraska (02)
$165 - $250
$335 - $750
500/500
Each county office
Oregon (00)
$1.9 million
$870,417
1.6 million/1.6 million
Every residential household
* California amounts are per election (they have initiatives in both the primary and general elections).
Source: National Conference of State Legislatures, April 2002.
 
Each state requires the inclusion of different material, such as title, summary, and text of measures; arguments pro and con; and candidate information. In Nebraska, for instance, the ballot pamphlet contains information only about measures-candidates are not included. In Oregon, information about both measures and candidates is included, as well as voter registration materials (which qualified the pamphlet for nonprofit postage status and saved the state $750,000 in postage). The Oregon ballot pamphlet for the November 2000 election comprised two volumes and more than 400 pages.
 
Postage costs are determined by state requirements for the distribution of pamphlets. The pamphlet is mailed only to county offices in Nebraska. In Colorado, it is mailed to each registered voter household. California also mails a pamphlet to each registered voter household, and to all city election officials, each member of the Legislature, the proponents of each ballot measure, public libraries, high schools, and institutions of higher learning.
 
In Colorado and Nebraska, the text and title of each measure also must be published in a newspaper. This is a significant expense in Nebraska, where the publication cost per measure is $75,000.
 
Arizona, California and Colorado are required to print voter information pamphlets in languages other than English. California currently prints in five languages in addition to English, and Colorado and Arizona in two additional languages. Translation costs in Arizona for the November 2000 election were $20,000, which included audio tapes in Navajo. In Colorado, translation costs for 2000 were $25,000. California directly mails 278,519 translated versions of the voter information guide.
 
Virtually every commission that has studied the initiative process has recommended improved voter information pamphlets. Some of the specific recommendations include the following:
  • Analyses of initiative measures should be written for the reading level of the average citizen (California League of Women Voters, 1999).
  • The ballot pamphlet should clearly indicate the effect of a "yes" vote and a "no" vote (California League of Women Voters, 1999; Citizens' Commission on Ballot Initiatives, California, 1994).
  • Related initiatives should be grouped together in the ballot pamphlet, and comparison charts should be used to facilitate voter comparison of similarities and differences (Citizens' Commission on Ballot Initiatives, California, 1994).
  • The state should provide the citizens with readily accessible, in-depth information regarding the various issues surrounding each proposed constitutional amendment (Florida's Citizen Initiative Process, November 1994).
 

Case Study: Voter Information Pamphlets

Oregon

Oregon charges a fee of $500 for the submission of arguments for or against initiative measures to be printed in the voters' pamphlet. This helps fund the printing and postage costs associated with the pamphlet. Note that it is possible to bypass the $500 fee by submitting a petition bearing the signatures of 1,000 people who are eligible to vote on the measure.
Oregon also has an innovative manner of drafting the explanatory statement that is printed in the voters' pamphlet with each measure. A committee is created, made up of the following:
  • Two people appointed by the chief proponents (in the case of a legislative referendum, one person is appointed by the president of the Senate and one by the speaker of the House)
  • Two opponents are appointed by the Secretary of State
  • A fifth member, selected by the two proponent and two opponent members of the committee
The committee prepares a simple, impartial and understandable explanatory statement of no more than 500 words. The statement must be approved by at least three members of the committee.
 
The Secretary of State holds a public hearing to receive comments and suggested changes to the explanatory statement. The committee considers testimony at the hearing, and also considers written suggestions and comments, and issues a final explanatory statement no later than 90 days before the election. If the committee fails to issue a statement by the deadline, a statement drafted by the Legislative Counsel Committee is used instead. Any person who offered testimony at the public hearing may petition the Oregon Supreme Court to seek a different explanatory statement.
 

Voter Education on the Internet

 
All states except two provide online information about measures on the ballot and other initiative information. It also is becoming more common for states to list initiatives that were put on the ballot in past years and the outcome of each. Many states publish the voter information pamphlet in full online, including the title and text of each measure and arguments and rebuttals for and against the measure, an impartial summary of the measure, and a fiscal impact estimate.
 

The Media's Role in Voter Education

 
Scholarly research has shown that most people get their information about election issues from friends, family, special interest groups with which they identify, and the media. So, while voter information pamphlets printed by the state offer the most comprehensive and objective information, paid advertising and news media coverage of campaigns may have an equal or even stronger influence on voters. Others argue that the quality of the information available to voters is directly related to the integrity of the initiative process. Therefore, less comprehensive, shorter, purposefully inflammatory and potentially exaggerated media sources of election information could pose a threat to the initiative process.
 
Finally, some people argue that the use of media sources to educate voters unnecessarily increases the costs of running an initiative campaign. The process no longer is grassroots in nature but is, rather, a high-powered advertising campaign. Also, without disclosure requirements, it may be unclear to voters who is behind or sponsoring the advertising, leading to biased or only partially informed voter opinions.
 
Whatever one believes about the value and influence of paid campaign advertisements, however, the news media bears a responsibility to provide adequate and balanced coverage of initiative proposals.
 

Other Ideas for Reform

 
Some reform advocates have suggested that a list of individual and organizational endorsements included in the voter information pamphlet would be useful to voters, since they often use such cues to make their decisions about ballot measures. The Citizens' Commission on Ballot Initiatives (California, 1994) recommended this reform. Listing the position of legislators and the governor also has been suggested, for the same reason.
 

Recent Legislative Action

 
During the period of 1999 through 2002, legislatures in 11 states considered 39 bills addressing voter education on initiatives.
  • Montana passed a bill that clarifies the contents of arguments prepared on ballot measures for inclusion in the voter information pamphlet.
  • At the November 2002 election, Florida voters will decide if they want to add language to the state's constitution requiring the Legislature to draft a statute to require economic impact estimates on initiative constitutional amendments. Presently, Florida has no requirement for fiscal analysis of constitutional amendments.
 

7. Financial Disclosure

Recommendations

Recommendation 7.1: States should require financial disclosure by any individual or organization that spends or collects money over a threshold amount for or against a ballot measure.
Recommendation 7.2: After a title has been certified for an initiative measure, states should require that proponents and opponents of the initiative measure file a statement of organization as a ballot measure committee prior to accepting contributions or making expenditures.
Recommendation 7.3: States should make the disclosure requirements for initiative campaigns consistent with the disclosure requirements for candidate campaigns.
Recommendation 7.4: States should prohibit the use of public funds or resources to support or oppose an initiative measure. This should not preclude elected public officials from making statements advocating their position on an initiative measure.

Overview

 
The role of money in the initiative process has grown dramatically during the past decade. Although large contributions to initiative campaigns are not new and date to the turn of the last century, they are even larger and more common today than ever before. The I&R Institute reported in 1998 that issue committees nationwide spent almost $400 million to support and oppose ballot measures. California led the way in 1998. According to the Secretary of State, California committees spent just under $193 million to support and oppose the 12 general election ballot measures. Combined spending for 214 statewide and legislative candidates in the 1998 general election totaled just under $136 million, or about 70 percent of the spending on ballot measures.
 
Even more concerning than the extraordinary amounts of money raised and spent in initiative campaigns is the fact that such large sums of money come from so few sources. Large contributions overwhelmingly dominate initiative campaigns, and small, grassroots contributions make up a small percentage of the total money spent. Of course, whether that is a problem in and of itself is debatable; nevertheless, voters deserve to know who is funding initiative campaigns. If a measure qualifies for the ballot because one or two wealthy individuals or corporations underwrote the costs, voters should be able to consider that fact as they decide how to vote on the measure.
 
Unlike candidate campaigns in most states, in which contributions are limited, it is not uncommon for large contributions from a small handful of contributors to fund an initiative, from the drafting and signature-gathering phases through the campaign. A series of U.S. Supreme Court rulings, Buckley vs. Valeo, 424 U.S. 1 (1976), National Bank of Boston vs. Bellotti, 435 U.S. 1 (1978), and Citizens Against Rent Control vs. City of Berkeley, 454 U.S. 290 (1981) have clearly established the Court's view that limiting contributions and expenditures in initiative campaigns is an impermissible violation of First Amendment rights. The rationale behind the Court's rulings is that, although it is possible that a candidate could be corrupted by large contributions, it is impossible to corrupt an issue.
 
In spite of the Court's reluctance to limit money in initiative campaigns, voters have consistently supported the idea. About half the states have at some time in their history attempted to limit spending in initiative campaigns, and voters have supported spending restrictions on initiative campaigns in at least two states-California and Alaska. Such limits have failed to stand up to judicial scrutiny, however.
 

Initiative Financial Disclosure Requirements

 
With contribution and expenditure limits out of the question, states are left with only one avenue of regulating money in initiative campaigns: disclosure. States have a responsibility to ensure that voters receive high-quality, transparent information about the sponsorship and financial support of initiative proponents and opponents. Such information not only minimizes abuse and manipulation of the initiative process, but also provides voters with key tools necessary for deciphering the sometimes veiled motives of initiative proponents. Voters cannot make a fully informed decision without campaign finance information about initiatives.
 
Recommendation 7.1: States should require financial disclosure by any individual or organization that spends or collects money over a threshold amount for or against a ballot measure.
 
Recommendation 7.2: After a title has been certified for an initiative measure, states should require that proponents and opponents of the initiative measure file a statement of organization as a ballot measure committee prior to accepting contributions or making expenditures.
 
Recommendation 7.3: States should make the disclosure requirements for initiative campaigns consistent with the disclosure requirements for candidate campaigns.
 
Recommendation 7.4: States should prohibit the use of public funds or resources to support or oppose an initiative measure. This should not preclude elected public officials from making statements advocating their position on an initiative measure.
 
The following commissions, individuals and organizations have recommended increasing disclosure requirements for initiative supporters and opponents:
 
Speaker's Commission on the California Initiative Process (2002),
David Broder, Washington Post (in testimony before the task force on December 7, 2001),
California League of Women Voters (1999),
City Club of Portland, Oregon (1996),
Citizens' Commission on Ballot Initiatives (California, 1994),
Sacramento Bee (1994), and
Los Angeles Times (1990).
 
States use disclosure requirements in various phases of the initiative campaign. In some states, sponsors must disclose the amount of money they pay to petition circulators. In most states, initiative campaign committees are required to disclose their contributions and expenditures. They also are often required to disclose the names of contributors who give more than a threshold amount. A few states also require that initiative committees identify out-of-state contributors, and at least 11 states require reporting by people or groups that make independent expenditures in support of or opposition to an initiative. Presently, no state requires that expenditures be reported for pre-certification activities, such as polling and drafting.
 
Every initiative state requires some degree of disclosure of contributions and expenditures by initiative campaigns; states vary in the degree of detail required in such reports and the frequency of reporting. In many states, the information is posted for the public on a Web site (usually the secretary of state's).
 

Effectiveness of Initiative Campaign Spending

 
Recent scholarly research suggests that high-spending campaigns often are no more successful in passing an initiative than are low-spending campaigns. Money is instrumental in changing voter opinion, however, when it is spent in opposition to a measure. Research suggests that high spending by opponents can be effective in defeating initiatives by creating a climate of confusion and uncertainty, under which most voters vote "no."
 

Recent Legislative Action

 
There has been significant legislative activity in the area of initiative campaign finance reform, as states scramble to equalize the disclosure requirements for initiative campaigns with those imposed on candidate campaigns. During the period of 1999 through 2002, legislatures in 15 states considered 34 bills addressing the issue of money in initiative campaigns. Highlights include the following.
  • In 2001, Arizona passed HB 2389, requiring that committees that support or oppose ballot measures register before distributing campaign literature or running advertisements, that literature and ads disclose the political committee that funds them, and that ballot measure committees report contributions of $10,000 or more within 24 hours of receiving them.
  • Montana passed HB 468 in 1999, requiring the people who employ paid signature gatherers to file financial disclosure reports. The report must include the amount they pay to each signature gatherer. Utah also passed a similar measure in 1999.
  • In 2001, North Dakota passed a pair of bills that tightened financial disclosure requirements for petition sponsors and extended the requirements for last-minute contributions to initiative campaigns to include contributions from political parties to initiative campaigns.
  • Oregon passed a bill in 2001 that added a new report requirement prior to the May primary, and up to two additional reports if aggregate contributions or expenditures exceed $2,000. Under prior law, proponents had to file just one report two weeks after the July deadline for turning in signatures.
  • A 1999 bill passed in Arkansas requires that the use of state funds to support or oppose a ballot measure be reported to the Legislative Council if the expenditure exceeds $100.
  • A bill pending in Massachusetts would test the U.S. Supreme Court's ruling that prohibited limiting contributions to initiative campaigns. HB 3862 proposes limiting to $100 contributions made for the promotion or defeat of ballot questions.
  • A bill passed in 2002 in Arizona voids any signatures gathered before the proponents filed a statement of organization. It also requires that committees include their name, the serial number for the petition, and their support or opposition of a measure in their statement of organization. The bill is SB 1285.
  • A failed bill in Oklahoma would have swept initiative campaigns into the existing campaign finance disclosure requirements by changing the definitions of "contribution" and "expenditure" to include any communication that clearly advocates the passage or defeat of a ballot measure.

8. Voting on Initiatives

Recommendations

Recommendation 8.1: States should allow initiatives only on general election ballots.
Recommendation 8.2: States should adopt a requirement that creates a higher vote threshold for passage of a constitutional amendment initiative than for passage of a statutory initiative.
Recommendation 8.3: States should require that any initiative measure that imposes a special vote requirement for the passage of future measures must itself be adopted by the same special vote requirement.
Recommendation 8.4: States should ensure that statutory initiative measures require the same vote threshold for passage that is required of the legislature to enact the same type of statute.
Recommendation 8.5: States should adopt a procedure for determining which initiative measure prevails when two or more initiative measures approved by voters are in conflict.

Overview

 
In most states, present law permits the passage of an initiated law or constitutional amendment with a simple majority vote. Some states have implemented higher vote standards in an effort to ensure that initiatives truly have popular support before they are enacted.
 

When Initiatives Can Appear on the Ballot

 
In a handful of states, initiatives may appear on primary or special election ballots. Alaska, California, North Dakota and Oklahoma permit initiatives on primary and special election ballots. Six states also permit initiatives on odd-year ballots: Colorado (only revenue measures), Maine, Mississippi (note, however, that Mississippi's legislative elections also are held in odd years), Ohio, Oklahoma and Washington. Voter turnout typically is significantly lower at primary, odd-year and special elections than at regular general elections. When initiatives appear on those ballots, it means a small percentage of registered voters are permitted to dictate policy for the majority. It is preferable that initiatives be voted on by as many people as possible.
 
Recommendation 8.1: States should allow initiatives only on general election ballots.
 
This reform also was recommended by the California League of Women Voters in 1999, and the California Constitution Revision Commission in 1996.
 

Supermajority Vote Requirements for Constitutional Amendments

 
Most states require a simple majority vote to pass an initiative measure, whether statutory or constitutional in nature. By contrast, a supermajority vote of the legislature is necessary in almost all states to refer to the voters a measure to amend the constitution. All states except Delaware also require a vote of the people to pass a constitutional amendment. Supermajorities are intended to prevent a "tyranny of the minority," and also encourage deliberation and compromise as proponents attempt to gather enough votes to reach a supermajority. Supermajorities in the legislature often are required for constitutional amendments because of the belief that constitutions should not be amended without careful deliberation. Many states also require a supermajority vote of the legislature to increase taxes.
 
In most states, however, the initiative constitutional amendment process is not subject to the same supermajority vote requirement as the legislature. Some experts question why supermajorities are required of the legislature but not of the people. They point out that the initiative process lacks checks found in the legislature that promote compromise and consensus and suggest that a supermajority vote requirement might help to prevent the passage of initiatives that are supported only by a narrow majority.
 
Recommendation 8.2: States should adopt a requirement that creates a higher vote threshold for passage of a constitutional amendment initiative than for passage of a statutory initiative.
 
Requiring a supermajority vote to amend the constitution also was recommended by the City Club of Portland (1996).
 
Wyoming's supermajority requirement was challenged in 1997 by the proponents of an initiative that received a simple majority but failed to reach the supermajority requirement (Brady vs. Ohman, 105 F.3d 726 (1998)). The 10th Circuit Court of Appeals rejected the challenge and wrote that Wyoming had the right to prevent "... abuse of the initiated process and make it difficult for a relatively small special-interest group to enact its views into law." The case was appealed to the U.S. Supreme Court, which upheld the Circuit Court ruling.
 
According to Richard Ellis in Democratic Delusions: The Initiative Process in America, the effect of a supermajority passage requirement would have dramatic consequences. He analyzed the passage rates of initiatives in the five most active initiative states-Arizona, California, Colorado, Oregon and Washington-between 1980 and 2000, and found that an average of 60 percent of the initiatives on the ballot would have passed under a 55 percent supermajority requirement, 45 percent under a three-fifths requirement, and only 20 percent under a two-thirds requirement (pp. 128-9).
 
Table 17 summarizes supermajority requirements for passing initiative measures.
 

Table 17. Supermajority Initiative Passage Requirements

 
Passage Requirement
Applies to
Florida
Any measure imposing a tax or fee not in place in November 1994 must receive a 2/3 vote in order to pass
Constitutional amendments
Illinois
Passage by 3/5 of those voting on the measure, or a majority of those voting in the election
Constitutional amendments
Massachusetts
Majority vote, provided that the total number of votes cast on the initiative equals at least 30% of the total votes cast in the election
Statutory initiatives and constitutional amendments
Mississippi
Majority vote, provided that the total number of votes cast on the initiative equals at least 40% of the total votes cast in the election.
Constitutional amendments
Nebraska
Majority vote, provided that the total number of votes cast on the initiative equals at least 35% of the total votes cast in the election
Statutory initiatives and constitutional amendments
Nevada
An initiative constitutional amendment must receive a majority vote in two successive general elections in order to pass
Constitutional amendments
Oregon
Any measure that includes any proposed requirement for more than a majority of votes cast by the electorate to approve any change in law or government action must be approved by at least the same percentage of voters specified in the proposed voting requirement
Statutory initiatives
Washington
Majority vote, provided that the vote cast upon the measure equals at least one-third of the total votes cast at such election
Statutory initiatives
Wyoming
Majority vote, provided that an amount in excess of 50% of those voting in the preceding general election must cast votes on an initiative or the initiative fails
Statutory initiatives
Source: National Conference of State Legislatures, January 2002.
 

Special Vote Requirements

 
In Oregon, any measure that includes any proposed requirement for more than a majority of votes cast by the electorate to approve any change in law or government action must be approved by at least the same percentage of voters specified in the proposed voting requirement. For instance, if an initiative proposes that all future tax increases must receive a 60 percent supermajority to pass, then that same initiative also must receive a 60 percent supermajority to pass. The Citizens' Commission on Ballot Initiatives (California, 1994) recommended this reform for California.
 
Recommendation 8.3: States should require that any initiative measure that imposes a special vote requirement for the passage of future measures must itself be adopted by the same special vote requirement.
 
In many states, legislatures must assemble a supermajority vote to pass certain types of statutory measures, in particular tax and fee increases. Such requirements are imposed because legislators and citizens feel that certain sections of law deserve special protection, and should not be easily or hastily changed. That assumption should extend to the initiative process as well.
Recommendation 8.4: States should ensure that statutory initiative measures require the same vote threshold for passage that is required of the legislature to enact the same type of statute.
 
A similar reform was proposed by the California Policy Seminar in 1991.
 

Case Study: Passage and Ratification of Constitutional Amendments

Nevada

Nevada's passage requirement for constitutional amendments has received attention recently. Since 1962, Nevada has required that a constitutional amendment be passed by a majority of the voters in two successive general elections. This is not an uncommon requirement to be placed on legislatures-Nevada requires its own Legislature to pass a constitutional amendment in two consecutive sessions before putting it on the ballot, as does Massachusetts. Ten other states also have require the legislature to pass an amendment twice before it goes to the ballot, and 33 more require either a single supermajority vote or a majority vote in two legislative sessions.
The advantage of the double-vote requirement is that it allows more time for voters to learn about and consider the measure. It also gives the legislature a chance to act on an issue if a measure receives substantial support in its first election. Most amendments in Nevada that receive a majority "yes" vote in the first election also pass the second election. However, at least three measures-two tax measures and a term limits measure-that passed in the first election but failed in the second.

Conflicting Measures

 
It has become a common technique for initiative proponents to qualify multiple or competing measures that address the same subject. Often, the motive for this is to confuse voters, ensuring that a particular measure-or all of the competing measures-will fail. It is important that states have a standard for determining how to respond when conflicting measures are passed by voters. A state without such a standard may someday find itself in a complicated and expensive court battle to sort out conflicting measures.
 
Recommendation 8.5: States should adopt a procedure for determining which initiative measure prevails when two or more initiative measures approved by voters are in conflict.
 
Legislatures have a variety of ways for dealing with the passage of laws that conflict with each other. It is common for a state to provide the code revisor with authority to rectify certain problems without requiring further action. Commonly, revisors may not alter the sense, meaning or effect of an act, but may renumber and rearrange sections, transfer or divide sections, change capitalization, correct manifest typographical and grammatical errors, and make other such minor changes. States also may provide a series of rules to help resolve conflicts. For instance, if amendments to the same statute are enacted without reference to one another, they often are harmonized to give effect to each, to the extent possible. If conflicting amendments or statutes are irreconcilable, the most recently enacted amendment or statute generally prevails.
 

Other Ideas for Reform

 

Sunset Provisions


Many states currently use a sunset process. In these states, some laws contain an automatic termination provision, meaning the law automatically terminates unless it is reauthorized. It is even more common for states to subject certain agencies to termination unless they are reauthorized. No state currently requires a sunset provision for initiative measures.
 
It has been suggested that requiring a sunset provision on initiative measures would provide an opportunity and a formal venue for the legislature and others to publicly discuss the effects of an initiative. If an initiative had unintended consequences, they would come up during the sunset process, and the legislature might have the opportunity to show voters why the initiated law needed amendment. Arizona has considered bills that would impose a sunset provision on initiated laws, and it was recommended by the California League of Women Voters in its 1999 position statement on the initiative process.
 

Supermajorities


Several states require a particular type of supermajority vote for ballot measures (see Table 17). In these states, not only must a majority of votes cast on the measure be affirmative, but a certain percentage of votes cast in the election must be in favor of the measure. For instance, in Massachusetts, an initiative must receive a simple majority, and the votes in favor of the initiative must be equal to at least 30 percent of the total votes cast in the election. Such restrictions are intended to address the problem of voters who choose not to cast a vote on an initiative. In effect, such restrictions count the lack of any vote as a "no" vote. They presume that a non-vote is an indication of the voter's preference to maintain the status quo in favor of any change. Opponents of this idea say that it creates a disadvantage for measures that appear later on the ballot, and that it is unfair because the same requirement is not imposed on candidate elections.
 

Recent Legislative Action

Eight states have considered changing the passage requirements for initiative measures since 1999. Proposals that were considered but not enacted include the following.
  • Requiring a two-thirds vote to pass an initiative that changes state revenues and for constitutional amendments (considered in Arizona, California).
  • Requiring a 60 percent vote on initiatives resulting in a loss of state revenues of more than $100 million (considered in Mississippi).
  • Requiring a two-thirds vote on conservation initiatives (considered in Missouri).
  • Requiring that constitutional amendments be passed at two consecutive general elections before taking effect (failed on the ballot in 2000 in Nebraska).
  • Requiring a three-fifths vote to pass a constitutional amendment (considered in Oregon).
  • Requiring that the ballot title for an initiative that contains any supermajority voting requirement also contain a statement indicating that the measure will allow a minority of voters to veto the will of the majority in certain elections (considered in Oregon).
  • Establishing a method for the Legislature to determine if an initiative measure has substantial fiscal impact; requiring measures that are determined to have a substantial fiscal impact receive a vote of 60 percent to pass (considered in Washington).
  • Requiring a two-thirds vote to pass an initiative that allows, limits or prohibits the taking of wildlife (considered in Wyoming).
 

Glossary

Advisory Initiative - A non-binding proposed statute and/or constitutional amendment that is initiated by citizens and placed on the ballot for a popular vote after a petition process.
 
Direct Initiative - A proposed statute and/or constitutional amendment initiated by citizens and placed on the ballot for a popular vote after a petition process. If passed by the voters, the statute or constitutional amendment takes effect without legislative or gubernatorial action.
 
General Policy Initiative - A citizen-initiated proposal for a statute and/or constitutional amendment that is general in nature, and does not contain specific constitutional or statutory language. If voters pass a general policy initiative, the legislature is required to take action to develop and implement the policy.
 
Indirect Initiative - A citizen-initiated proposal for a statute and/or constitutional amendment that is first submitted to the legislature, which has an opportunity to act on the proposed legislation. The initiative question may be placed on the ballot if the legislature rejects it, submits a different proposal or takes no action.
 
Legislative Referendum/Referral - A proposed or newly enacted law or proposed constitutional amendment placed on the ballot by the legislature for voter approval.
 
Popular Referendum - A process by which voters may petition to place a recent enactment of the legislature on the ballot for approval or rejection by the people.
 

Appendix A: The Initiative States

 
 
Statutory Initiative
Constitutional Initiative
Alaska
D*
None
Arizona
D
D
Arkansas
D
D
California
D
D
Colorado
D
D
Florida
None
D
Idaho
D
None
Illinois
None
D
Maine
I
None
Massachusetts
I
I
Michigan
I
D
Mississippi
None
I
Missouri
D
D
Montana
D
D
Nebraska
D
D
Nevada
I
D
North Dakota
D
D
Ohio
I
D
Oklahoma
D
D
Oregon
D
D
South Dakota
D
D
Utah
D&I
None
Washington
D&I
None
Wyoming
D*
None
D - Direct Initiative: proposals that qualify go directly on the ballot.
I - Indirect Initiative: proposals are submitted to the legislature, which has an opportunity to act on the proposed legislation. Depending on the state, the initiative question may go on the ballot if the legislature rejects it, submits a different proposal or takes no action.
D* -- Alaska and Wyoming's initiative processes exhibit characteristics of both the direct and indirect initiative. Instead of requiring that an initiative be submitted to the legislature for action (as in the indirect process), they require only that an initiative cannot be placed on the ballot until after a legislative session has convened and adjourned. The intent is to give the legislature an opportunity to address the issue in the proposed initiative, should it choose to do so. The initiative is not formally submitted to the legislature.
Source: National Conference of State Legislatures, January 2002.
 

Appendix B: Other Initiative Reform Commissions

California Commission on Campaign Financing. Democracy by Initiative: Shaping California's Fourth Branch of Government.Los Angeles: Center for Responsive Government, 1992.
California Constitution Revision Commission. Recommendations of the California Constitution Revision Commission to the Governor and the Legislature, August 1996.
California League of Women Voters. Positions on the Initiative and Referendum Process. http://ca.lwv.org/lwvc/issues/gov/initref.html, 1999.
California Policy Seminar. Improving the California Initiative Process: Options for Change, November 1991.
Citizen's Commission on Ballot Initiatives. A. Alan Post, Chairperson. Report and Recommendations on the Statewide Initiative Process, January 1994.
City Club of Portland. The Initiative and Referendum in Oregon, February 1996.
Committee on Ethics and Elections, Florida House of Representatives. Florida's Citizen Initiative Process, November 1994.
League of Women Voters of Oregon Education Fund. Oregon's Initiative System: Current Issues, Spring 2001.
Nebraska Petition Process Task Force: Majority and Minority Reports. Senator DiAnna Schimek, Chair, May 1994.
Simmons, Charlene Wear. California's Statewide Initiative Process. Sacramento: California Research Bureau, CaliforniaState Library, May 1997. (contains collection of reforms proposed by California newspapers)
The Speaker's Commission on the California Initiative Process. David Abel, Chairman. Final Report, 2002.
 

References

 
Allswang, John M. The Initiative and Referendum in California, 1898 - 1998.Palo Alto: StanfordUniversity Press, 2000.
Boes, Mette A. The Supermajority Vote Provision to Ratify Constitutional Initiatives: Would it Restore the Process to the People? Master's thesis, University of Colorado-Denver, 2002.
Bowler, Shaun, Todd Donovan and Caroline J. Tolbert (eds.). Citizens as Legislators: Direct Democracy in the United States.Columbus: OhioStateUniversity, 1998
Broder, David S. Democracy Derailed: Initiative Campaigns and the Power of Money. Harcourt Brace, 2000.
California Commission on Campaign Financing. Democracy by Initiative: Shaping California's Fourth Branch of Government.Los Angeles: Center for Responsive Government, 1992.
Cronin, Thomas E. Direct Democracy: The Politics of Initiative, Referendum, and Recall. Cambridge: HarvardUniversity Press, 1989
Dinan, John J. Keeping the People's Liberties: Legislators, Citizens and Judges as Guardians of Rights. Lawrence: University Press of Kansas, 1998.
DuBois, Philip L., and Floyd Feeney. Lawmaking by Initiative: Issues, Options and Comparisons. New York: Agathon Press,1998.
--------------------. Improving the California Initiative Process: Options for Change. (Berkeley: The California Policy Seminar, University of California, 1992.
Ellis, Richard J. Democratic Delusions: The Initiative Process in America.Lawrence: University Press of Kansas, 2002.
Gerber, Elisabeth R. Stealing the Initiative: HowState Government Responds to Direct Democracy.Upper Saddle River, N.J.: Prentice Hall, 2001.
--------------------. The Populist Paradox. Princeton, N.J.: PrincetonUniversity Press, 1999.
Graham, Virginia. A Compilation of Statewide Initiative Proposals Appearing on Ballots Through 1976. Washington, D.C.: Library of Congress, 1978.
Halstead, T.J.State regulation of the initiative process : background and analysis of issues in Buckley vs. American Constitutional Law Foundation, Inc., et al.Washington, D.C.: Congressional Research Service, Library of Congress, 1999.
Haskell, John. Direct Democracy or Representative Government? Dispelling the Populist Myth. Boulder, Colo.: Westview Press, 2001.
Magleby, David B. Direct Legislation: Voting on Ballot Propositions in the United States. Baltimore: JohnsHopkinsUniversity Press, 1984.
McGuigan, Patrick B. The Politics of Direct Democracy in the 1980s: Case Studies in Popular Decision Making. Washington, D.C.: Free Congress Research and Education Foundation, 1985.
Oakley, Lisa and Thomas Neale. Citizen Initiative Proposals Appearing on State Ballots, 1976 - 1992. Washington, D.C.: Library of Congress, 1995.
Ranney, Austin. The Referendum Device. Washington, DC: American Enterprise Institute for Public Policy Research, 1981.
Rosenthal, Alan. The Decline of Representative Democracy: Process, Participation and Power in State Legislatures. Washington, D.C.: Congressional Quarterly Press, 1998.
Schmidt, David D. Citizen Lawmakers: The Ballot Initiative Revolution. Philadelphia: TempleUniversity Press, 1989.
Schrag, Peter. Paradise Lost: California's Experience, America's Future. New York: The New Press, 1998.
Schultz, Jim. The Initiative Cookbook: Recipes and Stories from California's Ballot Wars. San Francisco: DemocracyCenter, 1998.
Smith, Daniel A. Tax Crusaders and the Politics of Direct Democracy. New York: Routledge, 1998.
Waters, M. Dane (ed.). The Battle Over Citizen Lawmaking.Durham: Carolina Academic Press, 2001.
Zimmerman, Joseph F. The Initiative: Citizen Lawmaking. Westport, Conn.: Praeger, 1999.
--------------------. The Recall: Tribunal of the People. Westport, Conn.: Praeger, 1997.
--------------------. The Referendum: The People Decide Public Policy. Westport, Conn.: Praeger, 2001.
 

 

 

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