Learn about the Initiative

Ballot Initiative Primer

Answers to frequently asked questions about ballot initiatives.


History of the Initiative

Background on our country’s long tradition of initiative and referendum.


Benefits of Initiatives

Why ballot initiatives are good for American politics.


Threats and Restrictions

A summary of various attempts to limit citizens’ initiative rights.

Ballot Initiative Primer

What is a ballot measure?

Ballot measures, also referred to as ballot initiatives and referendums (I&R), provide citizens the opportunity to discuss and vote on policy issues at the local level and state level. Using this process, in 24 states citizens can bring an issue to a public vote by gathering a pre-determined number of signatures from registered voters.

Some common names for ballot measures include initiative and referendum (I&R), voter initiatives, propositions, citizen initiatives, or questions.

There are three basic types of ballot measures: initiatives, referendums and recalls.

What is an initiative?

A ballot initiative is a proposal to change or create a law at a local or state level. Instead of relying on the legislature to make all of the laws, citizens can use the ballot initiative process to implement laws on their own.

Using the ballot initiative process, citizens can bring about a public vote on a proposed statue (link) or constitutional amendment (link) by gathering a pre-determined amount of signatures from registered voters and turning those signatures in to the state.

LEARN MORE: Do I have ballot initiative rights in my state?

What is a referendum?

A referendum places a law that has already been passed by the legislature to a popular vote. Similar to a ballot initiative, it is a citizen led effort and requires a predetermined amount of signatures to qualify the measure to get on the ballot. The legislature can also place a bill to a “legislative referendum.

LEARN MORE: Do I have the right to a referendum in my state?

What is a recall?

A recall is a process in which an elected official can be removed from office by the voters before his or her term expires. Similar to other measures, a specified number or percentage of signatures is required for a recall election.

LEARN MORE: Do I have the right to a recall election in my state?

Isn’t it the legislature’s job to make laws?

State legislatures do make most of our laws and that will most likely always be the case. However, when a legislature is unresponsive to the wishes of the people that elected them the people need the ability to act. Too often legislators are influenced more by well financed special interest groups and are not listening closely enough to the people that elected them. I&R provides citizens with a way to “right the ship” when legislators step out of line.

How many states have I&R?

Currently 24 states have some form of I&R.

Why doesn’t my state have I&R?

Most of the states that have I&R included the process in their state constitutions when the achieved statehood. Now to include I&R in a state constitution the state legislature must “refer” the idea to the voters. Some state legislators see I&R as a threat to their monopoly on power and are not willing to risk giving the people a vote.

Benefits of Initiatives

Better Policy

Ballot initiatives allow citizens to enact meaningful policy changes that otherwise have little chance of being passed by politicians.

Legislator Competition

The initiative process helps hold government accountable to the people.

Higher Voter Turnout

Ballot initiatives and referendums creates more interest, therefore higher voter turnout, in elections.

Beating Big Money

Ballot initiatives and referendums help citizens overcome well-funded special interests.

Better Policy

Ballot initiatives allow citizens to enact meaningful policy changes that otherwise have little chance of being passed by politicians.Just like legislators, voters can pass bad laws or fail to pass good ones. But historically, voters have a far better record.

Large, diverse groups of independent people make better decisions. James Surowiecki’s award-winning book, The Wisdom of Crowds has shown how large groups of decision-makers more often yield better policy outcomes than unaccountable politicians.

Better Tax Policy

States where citizens enjoy initiative and referendum rights not only have lower taxes, they also have more tax and spending decisions made at the local level, rather than statewide. Furthermore, a recent study by scholars at Wellesley College says I&R states have significantly less government waste and better economic performance than do states without I&R.

Resources

Fiscal Implications of the Initiative Process
Initiatives led to significantly lower spending and taxes. Per capita spending, for example, was about $83 per capita lower in a typical initiative state than a typical non-initiative state, which translates into $332 less expenditure (and hence taxes and fees) for a family of four. Compared to the average level of state and local spending, $2,300 per capita, initiatives caused a reduction of 4 percent.

Have Voter Initiatives Paralyzed the California Budget? by John G. Matsusaka of the University of Southern California and the Initiative & Referendum Institute.
Professor Matsusaka concludes that, “the initiative process is a scapegoat for the inability of elected officials to manage the competing demands for public funds in a period of declining revenue.”

Limiting Government: Through Direct Democracy by Michael New.
“State legislatures have occasionally imposed tax and expenditure limitations (TELs) on themselves. TELs passed by initiative are more restrictive and contain fewer loopholes than those enacted by state legislatures. Regression analysis of a comprehensive data set of state government spending shows that TELs enacted by citizen initiatives cause per capita public spending to decrease; TELs enacted by state legsialtures are associated with an increase in government expenditures,” writes Michael New.

By Popular Demand by Pete Sepp of the National Taxpayers Union.
“Arguably the Initiative and Referendum has contributed more to fiscal restraint than any other procedural device or substantive action?.This process has given at least some Americans a choice between meaningless elections and outright revolution, ironically providing the very kind of political stability that critics say I&R seeks to upset,” writes Pete Sepp.

The Impact of Voter Initiatives on Economic Activity: a Wellesley College Working Paper by S. Brock Blomberg, Gregory D. Hess, and Akila Weerapana.
“Our findings suggest that states with initiative systems waste between 20 to 30 percent fewer resources than do non-initiative states resulting in better economic performance?”

Fiscal Effects of the Voter Initiative: Evidence from the Last 30 Years by John G. Matsusaka of the University of Southern California.

Beating Big Money

People are far less swayed by money than politicians are. Multiple studies reveal that citizens tend to favor “grassroots” initiatives over “big money” initiatives, whereas legislatures usually vote on the side of big money. Special interests may be able to pay to play with elected officials, but it’s far more difficult to bribe a majority of the voters of a state. As just one example, that citizens of California enacted term limits despite being outspent by more than a 6 to 1 margin.

Initiative and referendum helps citizens overcome the big-money advantage many special interests currently enjoy. No wonder well-funded special interests oppose initiative and referendum, because they so often dominate the current political process in state legislatures, while having had little success with I&R.

More money is always an advantage over less money, but studies dramatically show that money plays a much smaller role in I&R than in candidate races. Wealthy interests are simply not able to pass initiatives by outspending opponents, nor to block citizen-led measures.

Professor Liz Gerber of the University of Michigan has studied the role of money in the initiative process. In her book, The Populist Paradox (Princeton University Press, 1999), she analyzed surveys of interest group activities and motivations, as well as campaign finance records from 168 different direct legislation campaigns in eight states. Her research concluded economic interest groups are severely limited in their ability to pass new laws by initiative. Simply put, money is necessary but not sufficient for success at the ballot box. By contrast, research found that citizen groups with broad-based support can much more effectively use direct legislation to pass new laws. When they are able to mobilize sufficient financial resources to get out their message, citizen groups are much more successful at the ballot box, even when economic interest groups greatly outspend them.

Voters become skeptical when a large amount of money is spent trying to pass an initiative. Real world results show that the more money spent on passing an initiative, the less likely the initiative is to win. The initiative and referendum process is a place where the side with the most money doesn’t necessarily win. I&R is critical in allowing citizens with a needed reform or a better idea to overcome big money opposition.

Resources

I&R Institute: “What Impact Does Money Have In The Initiative Process?”

The initiative process presents an environment that consistently allows financial advantages to be offset by other political assets. Separate studies by Daniel Lowenstein and David Magleby show that even when proponents of initiatives outspend opponents by a two-to-one margin or more, most of these “big spending” measures lose at the ballot box.

—“The Initiative Process: Where People Count” by Paul Jacob from the book Taking the Initiative, edited by Larry Sabato

Important Court Decisions on Money in Initiative Campaigns

U.S. Supreme Court

Buckley v. Valeo, 424 U.S. 1 (1976)
Landmark First Amendment protection case pertaining to campaign spending. The ruling helped establish the fact that spending on ballot measure campaigns cannot be limited.

Citizens Against Rent Control v. Berkeley, 454 U.S. 290 (1981) Appeal from the Supreme Court of California, No. 80-737. Argued October 14, 1981, decided December 14, 1981
The U.S. Supreme Court held that a California city’s ordinance to impose a limit on contributions to committees formed to support or oppose ballot measures violated the First Amendment. The Court based its decision on the right of individuals to bear and obtain information. In doing so, it equated free political spending with free speech.

First National Bank of Boston v. Bellotti, 435 U.S. 765 (1978) APPEAL FROM THE SUPREME JUDICIAL COURT OF MASSACHUSETTS, No. 76-1172. Argued November 9, 1977, decided April 26, 1978
The Supreme Court has supported the notion that one-sided spending is not a crucial factor in ballot issue elections. In this case, the U.S. Supreme Court invalidated a Massachusetts statute prohibiting business corporations from making contributions or expenditures “… for the purpose of … influencing or affecting the vote on any question submitted to the voters, other than one materially affecting any of the property, business or assets of the corporation.”

State Courts

Citizens for Jobs and Energy v. Fair Political Practices Commission, 16 Cal.3d 671 (1976) [S.F. No. 23391. Supreme Court of California. April 7, 1976.]
The California Supreme Court declared that the Political Reform Act couldn’t limit expenditures by ballot measure committees.

Hardie v. Eu, 18 Cal.3d 371 (1976) S.F. No. 23450. Supreme Court of California. November 29, 1976.
The California Supreme Court found unconstitutional the Political Reform Act’s cap on expenditures for qualifying ballot measures since it violated First Amendment rights.

Michigan Chamber of Commerce v. Austin, 832 F. 2d 947 (1987)
The federal appellate court ruled that Michigan’s provisions limiting corporate contributions to ballot measure campaigns violated the right of association and free speech guarantees of the First Amendment. Another portion of the Michigan statute, prohibiting corporations from making independent expenditures on behalf of political candidates from general treasury funds, was upheld by the U.S. Supreme Court in Austin v. Michigan State Chamber of Commerce, U.S., ll0 S. Ct. 1391 (1990)

Montana Chamber of Commerce v. Argenbright, U.S. 9th 98-36256 (2000) U.S. 9th Circuit of Appeals 98-36256, Opinion issued September 26, 2000
The court of appeals affirmed judgments of the district court. The court held that the First Amendment does not permit restricting corporate expenditures as a means of expression on public issues presented through a state’s ballot initiative process.

Higher Voter Turnout

Studies have consistently shown that entrusting citizens with the ballot initiative process results in more people voting.

In their study, The Effects of Ballot Initiatives on Voter Turnout in the American States, Caroline Tolbert and John Grummel of Kent State University and Daniel Smith of the University of Denver found that states with the initiative process experienced higher voter turnout.

During the 1990s, voter turnout was 7% to 9% greater in midterm elections and 3% to 4.5% higher in presidential elections in states that have the initiative process over those that do not.

Legislator Competition

Initiatives foster competition for legislators. Allowing citizens to challenge bad laws or introduce new laws puts a much-needed check on the monopoly power of state legislatures. In this way, the initiative helps hold government accountable to the people.

Perhaps more importantly, instead of covering up their mistakes, citizens have the incentive to fix them. Whereas legislators often try to hide their personal mistakes to protect their political careers, citizens just want to see the enactment of the best policies. Citizens actually feel the pain when policies don’t work.

Legal Action

In addition to grassroots, media and lobbying efforts Citizens in Charge Foundation works through the courts to protect and expand initiative & referendum rights around the country.

Recent and Ongoing Legal Action

E-Signatures

Petitioning Rights by State

States vary widely in whether initiative and referendum rights are recognized and to what extent. The chart below gives a more detailed picture of which states recognize the various petition processes. Click on your state for more details.

Citizens of the following states:

Can Initiate Constitutional AmendmentsCan Initiate Statutes
Can Call People’s Veto Referendums
Can Initiate Either Statutes or Amendments
Have Some Statewide Initiative or Referendum Rights
Can Initiate Statutes or Call a People’s Veto Referendum

18 states21 states23 states24 states26 states21 states

Arkansas
California
Colorado
Florida
Illinois
Massachusetts
Michigan
Mississippi
Missouri
Montana
Nebraska
Nevada
North Dakota
Ohio
Oklahoma
Oregon
South Dakota
Alaska
Arizona
Arkansas
California
Colorado
Maine
Massachusetts
Michigan
Missouri
Montana
Nebraska
Nevada
North Dakota
Ohio
Oklahoma
Oregon
South Dakota
Utah
Washington
Wyoming
Alaska
Arizona
Arkansas
California
Colorado
Idaho
Maine
Maryland
Massachusetts
Michigan
Missouri
Montana
Nebraska
Nevada
New Mexico
North Dakota
Ohio
Oklahoma
Oregon
South Dakota
Utah
Washington
Wyoming
Alaska
Arizona
Arkansas
California
Colorado
Florida
Illinois
Maine
Massachusetts
Michigan
Mississippi
Missouri
Montana
Nebraska
Nevada
North Dakota
Ohio
Oklahoma
Oregon
South Dakota
Utah
Washington
Wyoming
Alaska
Arizona
Arkansas
California
Colorado
Florida
Idaho
Illinois
Maine
Maryland
Massachusetts
Michigan
Mississippi
Missouri
Montana
Nebraska
Nevada
New Mexico
North Dakota
Ohio
Oklahoma
Oregon
South Dakota
Utah
Washington
Wyoming
Alaska
Arizona
Arkansas
California
Colorado
Maine
Massachusetts
Michigan
Missouri
Montana
Nebraska
Nevada
North Dakota
Ohio
Oklahoma
Oregon
South Dakota
Utah
Washington
Wyoming

Can Both Initiate Amendments and Call a People’s Veto

Can Initiate Both Amendments & Statutes

Can Initiate Statutes & Call a People’s Veto but not Initiate Amendments

Can Initiate Constitutional Amendments Only

Can Initiate a People’s Veto Referendum Only

Have No Statewide Initiative or Referendum Rights

15 states15 states6 states3 states2 states24 states
Arizona
Arkansas
California
Colorado
Massachusetts
Michigan
Missouri
Montana
Nebraska
Nevada
North Dakota
Ohio
Oklahoma
Oregon
South Dakota
Arizona
Arkansas
California
Colorado
Massachusetts
Michigan
Missouri
Montana
Nebraska
Nevada
North Dakota
Ohio
Oklahoma
Oregon
South Dakota
Alaska
Idaho
Maine
Utah
Washington
Wyoming
Florida
Illinois
Mississippi
Maryland
New Mexico
Alabama
Connecticut
Delaware
Georgia
Hawaii
Indiana
Iowa
Kansas
Kentucky
Louisiana
Minnesota
New Hampshire
New Jersey
New York
North Carolina
Pennsylvania
Rhode Island
South Carolina
Tennessee
Texas
Vermont
Virginia
West Virginia
Wisconsin


Truth in Governance

Truth In Governance Logo

Truth in Governance, a project of Citizens in Charge Foundation produces fact-based reports on the initiative and referendum process in the United States. Truth in Governance reports research and quantify cases of ballot initiative fraud, identify sources of initiative campaign funding, and provide information on legal precedents and state-by-state initiative procedures.

Too many citizens lack basic information about the initiative process, and are unaware of their First Amendment petition rights. One of the most important roles for The Foundation is to provide as much accurate and objective information to the public about the initiative process as possible. The Truth in Governance reports fill this need.

The information that the Truth in Governance project will examine is extremely valuable for public discussion about ballot initiatives, a crucial but often overlooked aspect of the democratic process. Quantifiable data regarding instances of fraud and sources of funding do not currently exist, and information on legal precedents and initiative procedures have not been collected in a single, centralized public resource.

View all Truth in Governance Reports Below:

Latest Report

Fact-Checking California’s Secretary of State: An Analysis of the Evidence Presented for Senate Bill 168  (Opens PDF)

Previous Reports

Five Facts About Amending Colorado’s Constitution (Opens PDF)

Is the “F-word” Overused? A Report on Petition Signature Fraud (Opens PDF) Money In the Initiative Process: Who Spends? Who Wins? (Opens PDF)

 

The History of the Initiative

Initiative and referendum has been part of our country since before the founding. Our founding fathers thought that the citizens’ right to petition their government was crucial to maintaining our liberty. Thomas Jefferson argued to have I&R included in the Virginia constitution in 1775. James Madison included a push for I&R in Federalist 49 when he stated:

“[a]s the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory to recur to the same original authority … whenever it may be necessary to enlarge, diminish, or newmodel the powers of government.”

The Progressive and Populist movements of the late 1800s and early 1900s were integral in implementing a number of important reforms that we now take as commonplace. Direct election of U.S. Senators, women’s suffrage, secret ballots, recall and primary elections were all goals of the Progressives and Populists. All good things and all things that couldn’t get passed in legislatures overrun with big moneyed special interests. These reformers recognized that going through the legislatures would not be a viable option in passing their goals. So they turned to the people. Through the initiative process these issues became law.

Initiative and referendum spread like wildfire, starting in 1898 when South Dakota became the first state to pass a statewide initiative and referendum process. Over the next 20 years 23 other states and numerous cities adopted some kind of initiative and referendum process.

There have been and continue to be attempts in other states to adopt I&R. In recent history Alaska, Wyoming, Florida and Mississippi have adopted the process.

One reason that state legislatures are reluctant to give people a vote on whether to adopt I&R and why some state legislatures seek to limit I&R usage through statute is why I&R has been used. The increase in I&R usage can be traced back to Proposition 13 in California in 1978. This issue is still debated today. Supporters of Prop 13 argue that prior to its passage people were literally being taxed out of their homes. Opponents say that by limiting property taxes California school have been irreparably crippled. Issues have passed through the initiative process on all ideological sides. People have voted to reduce their taxes and people have voted to increase their taxes. It is impossible to say that I&R favors any ideology. Depending on the state and the individual legislator the way I&R has been used can be either encouraging or terrifying.

Setting the Foundation

Initiative and referendum (I&R) has existed in some form in this country since the 1600s. Citizens of New England placed ordinances and other issues on the agenda for discussion and then a vote during town meetings. It is these town hall meetings that established the precedent for the legislative referendum process, whereby citizens are entrusted with ratifying laws and amendments proposed by elected officials.

Thomas Jefferson was the first of our founding fathers to propose legislative referendum when he advocated for its addition in the 1775 Virginia state constitution. His attendence at the Continental Congress, however, meant that it eventually was left out of the final version.

Jefferson’s strong support for referendum came from his belief that government power derives from citizens, and they should have the final say on whether changes to constitutions or other laws under which they must live are legitimate. As James Madison stated in Federalist 49,

[a]s the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory to recur to the same original authority… whenever it may be necessary to enlarge, diminish, or newmodel the powers of government.

In 1776, Georgia delegates gathered in Savannah to draft a new constitution. The delegates proposed that their new constitution only could be amended when petitions signed by a majority of voters in each county called for a convention. While this call was ultimately deleted from the constitution, Georgia was the first state to put forward a process that recognized the sovereignty of the people in controlling their constitution.

In 1778, Massachusetts became the first state to hold a statewide legislative referendum for its citizens to ratify its constitution. New Hampshire followed in 1792, then Connecticut in 1818, Maine in 1819, New York 1820 and Rhode Island in 1824. The U.S. Congress subsequently made legislative referendum for constitutional changes mandatory for all new states entering the union after 1857. Today, all 50 states have a legislative referendum process.

By the late 1800s, however, people began to realize that legislative referendum failed to give citizens the ability to proactively reign in governments that had become unresponsive. It was this shortcoming that soon led to a push for a more direct check on representative government.

Adapted from the Initiative & Referendum Almanac by M. Dane Waters.

 

The Populist and Progressive Era

The 1890s and early 1900s saw the establishment of the Populist and Progressive movements. Both were based on the people’s dissatisfaction with government and its inability to deal effectively in addressing the problems of the day. The supporters of both these movements had become especially outraged that moneyed special interest groups controlled government, and that the people had no ability to break this control. They soon began to propose a comprehensive platform of political reforms that included women’s suffrage, secret ballots, direct election of U.S. Senators, recall, primary elections, and the initiative process.

The cornerstone of their reform package was the establishment of the initiative process for they knew that without it many of the reforms they wanted – that were being blocked by state legislatures – would not be possible.

Their support for the process was based on a theory of trusting the individual and not as a method of destroying representative government – but to enhance it. They believed that our founding fathers at the federal and state levels had done a tremendous job in creating constitutions that established the criteria in which our daily lives should be governed. However, they knew that these constitutions were based on compromise and not documents that should be subject to permanent enshrinement. The founding fathers realized this as well and placed in every state constitution and the federal constitution a provision for its revision. The Populists/Progressives took advantage of these methods of amending state constitutions and began the arduous journey of pushing state legislators to add an amendment allowing for the initiative and popular referendum process.

Their efforts soon began to pay off. In 1897, Nebraska became the first state to allow cities to place initiative and referendum in their charters. One year later, the citizens of South Dakota, lead by Father Robert W. Haire, copied initiative and referendum provisions from the 1848 Swiss Constitution and successfully amended them into the South Dakota Constitution. On November 5, 1898, South Dakota became the first state to adopt the statewide initiative and popular referendum process. Utah followed in 1900 and Oregon voters approved their initiative and referendum amendment by an 11-to-1 margin in 1902 . Other states soon followed. In 1906 Montana voters approved an initiative and popular referendum amendment proposed by the state legislature. Oklahoma became the first state to provide for the initiative and popular referendum in its original constitution in 1907. Maine and Michigan passed initiative and popular referendum amendments in 1908.

In 1911 California placed initiative and popular referendum in their constitution. Other states were to follow – but even with popular support in many states, the elected class refused the will of the people and did not enact this popular reform. In Texas, for example, the people actually had the opportunity to vote for initiative and popular referendum in 1914, but voted it down because the amendment proposed by the legislature would have required that signatures be gathered from 20% of the registered voters in the state – a number twice as large as what was required in any other state. The proponents for initiative and popular referendum felt it was more important to get a useable process than one that would have maintained the status quo and provided no benefit to the citizenry.

According to David Schmidt, author of Citizen Lawmakers (the most comprehensive study on I&R available to date); “In states where I&R activists were unable to gain passage of statewide I&R amendments, they achieved numerous successes at the local level. In 1898, Alfred D. Cridge led a successful drive to incorporate I&R provisions into the city charter of San Francisco; John Randolph Haynes concluded a similar drive in Los Angeles in 1903; Grand Rapids, Michigan followed in 1905; Des Moines, Iowa in 1906; Cedar Rapids, Iowa and Wilmington, Delaware in 1907.” Eventually, between 1898 and 1918, 24 states and numerous cities had adopted initiative or popular referendum – mostly in the West.

The expansion of initiative and popular referendum in the West fit more with the Westerners belief of populism – that the people should rule the elected and not allow the elected to rule the people. Unfortunately in the East and South this was not the case. Those that were in power were opposed to the expansion of initiative and popular referendum because they were concerned that blacks and immigrants would use the process to enact reforms that were not consistent with the beliefs of the ruling class. This was exemplified by a 1911 article in the national I&R movement’s newsletter Equity in which it was reported that, “many conscientious Southerners oppose direct legislation (I&R) because they fear that this process of government would increase the power of the negro, and therefore increase the danger of negro domination.” As to the East Coast states, this racism was exemplified by Massachusetts political leaders who “fear[ed] initiatives [that] could be passed over their objections by Irish-Catholic voting blocs.”

By 1915, the push for establishing the initiative process began to wane due to “a developing conviction that German militarism might be a danger to the U.S.” which “was generating a crusade for pure, undiluted Americanism – and as usual, patriotism came to be identified with defense of the status quo rather than its alteration.” It took 40 years before another state would adopt the initiative process.

Excerpted from the Initiative & Referendum Almanac by M. Dane Waters.

The Modern Day Movement

In 1959, Alaska was allowed admittance into the Union with initiative and popular referendum in their founding constitution. In 1968, Wyoming voters adopted the process and in 1972 Floridians adopted the statewide initiative process. Mississippians in 1992 restored the initiative process to their constitution, 70 years after the state supreme court had invalidated the election that had established it. Mississippi became the newest and last state to get this valuable tool.

The battle to expand the initiative process is still being waged. But a new front has been opened – the battle to keep the initiative process from being taken away in the states where it exists. However, the factor that causes hesitation among legislators to expand the process is the same reason being used by lawmakers to call for its extinction – how the process has been used.

Initiative Usage

There is little doubt that in recent years the initiative process has become one of the most important mechanisms for altering and influencing public policy at the local, state and even national level. In the last decade alone, utilizing the initiative process, citizens were heard on affirmative action, educational reform, term limits, tax reform, campaign finance reform, drug policy reform and the environment.

The modern day movement to utilize the initiative process can be said to have begun in 1978 in California with the passage of Proposition 13 that cut property taxes from 2.5 percent of market value to just 1 percent. After Proposition 13 passed in California, similar measures were adopted through the initiative process in Michigan and Massachusetts. Within two years, 43 states had implemented some form of property tax limitation or relief and 15 states lowered their income tax rates.

A report from the National Taxpayers Union makes the case that the tax revolt that began with Proposition 13 in the 1970s would never have occurred without the initiative process. The study’s author, Pete Sepp, stated: “[w]ith I&R, citizens have created an innovative, effective array of procedural restraints on the growth of state and local government that have even awakened the federal political establishment. Without I&R, citizens almost certainly would be laboring under a more oppressive and unaccountable fiscal regime than they do today…. As initiative and referendum enters its second century of use in the United States, citizens should embrace and nurture this invaluable process. It has transformed the ‘Tax Revolt’ from a passing fancy to a permanent fixture in American politics.”

The citizens, utilizing the initiative process have brought about some of the most fundamental and controversial public policy decisions affecting our daily lives.

Clearly, reforms have been enacted that represent different ideologies - conservative, liberal, libertarian and populist agendas. This typifies the initiative process – individuals of all different political persuasions use it. Furthermore, because of the diversity of issues that have been placed on the ballot, voters in states with an initiative on the ballot have been more likely to go to the polls than voters in states without an initiative on the ballot. In election after election, no matter what election cycle is analyzed, voter turnout in states with an initiative on the ballot has been usually 3% to 8% higher than in states without an initiative on the ballot. In 1998 voters in the 16 states with an initiative on the ballot went to the polls at a rate of almost 3% greater than voters in the states without an initiative on the ballot.This can be attributed to the fact the people believe that their vote can make a difference when voting on initiatives. They realize that when they vote for an initiative, they get what they voted for. They get term limits, tax limits, and educational or environmental reform. That is the key distinction between voting on an initiative and voting for a candidate. With a candidate there are no guarantees – you can only hope that the candidate delivers on his or her promises.

Since the first statewide initiative appeared on Oregon’s ballot in 1904, citizens in the 24 states with the initiative process have placed approximately 2,051 statewide initiatives on the ballot and have only adopted 841 (41%). Even though 24 states have the statewide initiative process, over 60% of all initiative activity has taken place in just six states – Arizona, California, Colorado, North Dakota, Oregon and Washington. Additionally, it is important to point out that very few initiatives actually make it to the ballot. In California, according to political scientist Dave McCuan, only 26% of all initiatives filed have made it to the ballot and only 8% of those filed actually were adopted by the voters. During the 2000 election cycle, over 350 initiatives were filed in the 24 initiative states and 76 made the ballot – about 22%.

The initiative process has been through periods of tremendous use as well as periods in which it was rarely utilized. Initiative usage steadily declined from its peak of 293 from 1911-1920 to its low of 87 in 1961-1970. Many factors contributed to this, but the distraction of two World Wars, the Great Depression and the Korean War are largely responsible. However, in 1978, with the passage of California’s Proposition 13, the people began to realize the power of the initiative process once again and its use began to climb. Since 1978, two of the three most prolific decades of initiative use have occurred, 1981-90 (271 initiatives) and 1991- 2000 (389 initiatives).

In 1996, considered by scholars to be the “high water mark” for the use of the initiative process, the citizens placed 93 initiatives on statewide ballots and adopted 44 (47%). In contrast, that year, state legislators in those same 24 states adopted over 14,000 laws and resolutions.

Since 1996, the number of initiatives actually making the ballot is remaining constant if not falling. In 1998, only 61 statewide initiatives actually made the ballot - the lowest in a decade. In 2000 a total of 76 initiatives found their way to statewide ballots, though more than 1998, it is 17 less than appeared on the 1996 ballot and is consistent with the decade average of 73 initiatives per election cycle. These numbers do not support the accusation that there has been a “drastic” increase in initiative usage over the last decade.

In 2001 there were only four initiatives on statewide ballots. This number is actually two fewer than the number of initiatives that appeared on the 1991 general election ballot. The reason for the low number in odd numbered election years is that the constitutions of only five states allow initiatives in the odd years – Colorado, Maine, Mississippi, Ohio and Washington State.

Excerpted from the Initiative & Referendum Almanac by M. Dane Waters.

The Future of the Initiative

The credit for the establishment of the initiative process in this country belongs with the Populists and Progressives. They worked steadily to dismantle the political machines and bosses that controlled American politics by pushing reforms eliminating the influence the special interest had on political parties and the government. Their goal, as is today’s proponents of the initiative process, was to ensure that elected officials remain accountable to the electorate.

But it is hard to predict what will happen with the future of the initiative process. The expansion of the process seems to be an uphill battle. Due to the reforms that the citizens have been successful in promoting through the initiative process – reforms that have limited the power of government – legislators in states without I&R have been hostile to advocating it and unfortunately its expansion can only occur by legislators giving it to the people. This in itself is a perfect example of why we need I&R.

As to the future use of the process, there is no doubt that in the upcoming election cycles, there will be numerous initiatives that will have a tremendous impact on our daily lives. These initiatives will be derived from the brains of activists of all political persuasions, including those who wish to diminish the size of government and those who wish to increase it.

The impact on state governments will be substantial. Whether the impact is positive or negative will be entirely up to the individual observer. However, if history is any indicator, there is no doubt that the fiscal and social implications will be far-reaching.

Excerpted from the Initiative & Referendum Almanac by M. Dane Waters.

Current Ballot Initiatives

Measures on the ballot for November 2009

Maine -

Ohio -

Washington -

Threats and Restrictions

The Initiative process has been used throughout its history as a tool for the people to utilize to reign in government when it has become too powerful and when government refuses to deal with the issues supported by the people. Since the end result of most initiatives, especially those that reign in government, has been to limit the government’s power, elected officials have taken offense.

Legislative attempts to “reform” the process aren’t new. Legislators since the first use of the process have been trying to restrict its use for they see it – rightfully so – as a means reserved to the people to limit their power. But as William Jennings Bryon said in 1920:

[W]e have the initiative and referendum in Nebraska; do not disturb them. If defects are discovered, correct them and perfect the machinery … make it possible for the people to have what they want … we are the world’s teacher in democracy; the world looks to us for an example. We cannot ask others to trust the people unless we are ourselves willing to trust them.

California is a perfect example. Since the voters first adopted the initiative process in 1912, the state legislature has consistently tried to make it more difficult. When California first adopted the process, the citizens had an unlimited amount of time to collect signatures. Then, as the population of the state ballooned - which meant that the signatures had to collect more signatures on petitions – the state legislature was busy shortening the circulation period. It went from unlimited to four years and then to the current requirement of 180 days to collect over 750,000 signatures. One could legitimately question the rationale of drastically decreasing the circulation period during a period of high population growth.

Modern day attempts to reform the process is even more prevalent. From 1998 to 2000, nine states—Arizona, Idaho, Mississippi, Missouri, Montana, Oklahoma, Utah and Wyoming—have tightened procedural restrictions on initiatives.

In November 2000, Nebraska voters rejected a law placed on the ballot by the state legislature that would require initiatives to pass twice before becoming law. Legislators in Alaska, Arizona and Washington are debating whether to impose new geographic distribution requirements for petition circulators, while California and Florida legislators are mulling whether to change the majorities required to pass initiatives. And on May 16th, 2000 Oregon voters went to the polls and defeated an increase in the number of signatures required to place a constitutional amendment on the ballot – an amendment placed on the ballot by the state legislature.

Despite the fact that the citizens adopted the initiative process to ensure citizen government, most of the states where the citizens provided that they retain initiative rights have seen the legislature enact legislation that restricts rather than facilitates the use of these powers by the people. The legislatures’ regulation of the initiative and referendum have often violated the citizenry’s First Amendment rights as articulated by U.S. Supreme Court in Meyer v. Grant, 486 U.S. 414 (1986). It can be argued that not a single example of truly facilitating legislation has ever been enacted by any state legislature. Furthermore, the restrictions imposed on the citizenry are typically not imposed on other individuals seeking to use a state’s electoral processes to invoke changes in state government, whether it be through lobbying, legislating, or running for political office.

A variety of legislative enactments in various states demonstrate how the legislatures have reacted to the use of the initiative process. Many argue that their response appears based on self-interest rather than an interest in protecting a system of government where the citizens are an independent branch of government. A review of the various legislatures’ responses, many argue, reveal that control of a distinct branch of government, the people, by legislative action is not about fraud but about raw political power.

Similar restrictions are not imposed on lobbyists or other campaign workers. It has been noted that legislators enacted restrictions for the apparent purpose of “maintaining the integrity of the initiative process.” Despite this asserted interest, however, the legislatures in the initiative states have failed to impose the same or similar restrictions on lobbyists hired to influence legislation and/or executive policy or individuals hired to work on a candidate’s campaign for political office, including the circulation of a candidate’s nominating petitions.

This disparate treatment can be seen in Mississippi’s Lobbying Reform Act of 1994. While the Act defines “lobbying” as including “(i) Influencing or attempting to influence legislative or executive action through oral or written communication;” the legislature has imposed no restrictions on who may come into the state seeking to influence the course of legislative and executive policymaking. Yet, it requires those utilizing the initiative to be residents of the state.

Similarly, despite having residency requirements for circulators of initiative and referendum petitions, Wyoming fails to impose similar restrictions on lobbyists. Furthermore, while Wyoming requires petitions for candidates who are nominated by petition as independent candidates to include a circulator’s verification, no statements indicate that the nomination petitions must be circulated by “qualified registered voters.” Nor does Wyoming prohibit paying these circulators based on the number of signatures they collect.

In Colorado, while circulators of petitions for candidacy and recall must be eligible electors in the political subdivision where they are circulating petitions and they must affiliated with the political party of the candidate for at least two (2) months prior to filing the petition, no provisions exist regarding paying such circulators and having such payment information printed on nomination petitions as there exist for initiative petition circulators. Nor does it make provisions for such circulators to wear identification badges or to file monthly disclosure requirements for paid nominating petition circulators. Similarly, Colorado imposes no residency or voter registration requirements for lobbyists nor does it require lobbyists to wear identification badges.

Oddly, at the time the Colorado Legislature deemed it necessary to enact restrictions on those seeking to use the initiative process, it did not also impose the same limitations on lobbyists who are, like sponsors of initiatives, seeking to influence Colorado’s elected officials.

Maine does not impose the same restrictions regarding residency and voter registration on lobbyists as it does on initiative and referendum petition circulators. Nor does it impose the initiative restrictions on circulators of nominating petitions.

In Idaho, lobbyists are not required to wear display tags at the time of lobbying. More importantly, while the legislature requires persons seeking to evoke change through the initiative and referendum to be residents of the state, persons seeking to accomplish the same thing via lobbying are not required to be residents or registered voters of Idaho.

Excerpted from the Initiative & Referendum Almanac by M. Dane Waters.

Bans on Productivity Pay

Eight states - Alaska, Colorado, Montana, Nebraska, North Dakota, South Dakota, Wyoming, and Oregon - ban or restrict paying people who collect signatures on a ballot initiative, referendum or recall petition based on their productivity, or the number of signatures they collect. Payment-per-signature allows citizens greater certainty in judging the cost of a petition effort. Moreover, in states that have passed such bans, the cost of successfully completing a petition drive has risen considerably, sometimes more than doubling. Federal courts have struck down these bans in five different states – Maine, Mississippi, Ohio, Washington and Idaho – for violating the First Amendment.

Currently, bans are being challenged in Nebraska, Oregon, and Colorado.

Paying Petition Circulators by the Signature and the Courts

Citizens for Tax Reform v. Deters – United States Sixth Circuit Court of Appeals in 2006 strikes down Ohio’s ban on paying petition circulators by the signature, noting that it “runs afoul of the First Amendment because it creates a significant burden on a core political speech right that is not narrowly tailored.”

Prete v. Bradbury – United States Ninth Circuit Court of Appeals in 2006 found that Oregon’s voter-approved ban on paying petition circulators by the signature did not violate the constitution.

Person v. New York State Board of Elections – United States Second Circuit Court of Appeals found in 2006 that New York’s prohibition on paying petition circulators by the signature did not violate the constitution.

Idaho Coalition United for Bears v. Cenarrusa – United States District Court in 2001 invalidated Idaho’s ban on paying petition circulators by the signature, noting that “payment on a per signature basis is [Constitutionally] protected speech.”

Initiative & Referendum Institute v. Jaeger – United States Eighth Circuit Court of Appeals in 2000 upholds North Dakota’s requirement that petition circulators be state residents, noting that plaintiffs did not present evidence that such requirements reduce free speech.

On Our Terms ’97 PAC v. SoS – United States District Court in 1999 invalidated Maine’s law making banning paying petition circulators by the signature because it violated the first amendment.

Term Limits Leadership Council v. Clark – United States District Court in 1997 found that Mississippi’s ban on paying petition circulators by the signature “clearly…burden plaintiffs’ political expression” and therefore violated the first amendment.

LIMIT v Maleng – United States District Court in 1994 ruled that Washington’s ban on paying petition circulators by the signature “unconstitutionally infringes on the freedom of political speech guaranteed by the First Amendment.”

Meyer v. Grant – United States Supreme Court in 1988 found that Colorado’s ban on paying petition circulators was unconstitutional.

 

Circulation Periods

Petition sponsors need ample time to collect the tens of thousands of signatures needed to qualify for the ballot. Short circulation periods hurt the ability of petition sponsors to make the ballot, and make it almost impossible for grassroots volunteer efforts to qualify. States should have ample circulation periods - at least nine months - to allow petition sponsors an opportunity to qualify for the ballot.

Different Voting Rules

Different voting schemes are used for legislation versus initiatives. In addition to placing additional qualifications on persons seeking to use the initiative process, several states have also imposed unique voting schemes on initiatives; thereby making it more difficult for the people to successfully enact their proposals.

In Mississippi, constitutional amendments proposed by the legislature become part of the constitution “if it shall appear that a majority of the qualified electors voting directly for or against the same shall have voted for the proposed change, alteration or amendment”. However, for constitutional amendments proposed by the people through the initiative, the initiative or legislative alternative “must receive a majority of the votes thereon and not less than forty percent (40%) of the total votes cast at the election at which the measure was submitted to be approved.”

Wyoming allows passage of an initiative only when “an amount in excess of fifty percent (50%) of those voting in the general election” cast a vote in favor of the proposed measure, not just a majority of those voting on the proposed measure. Thus, if voters choose not to vote on a measure, their non-vote is counted against it.

Massachusetts provides that legislative constitutional amendments, “if approved by a majority of the voters voting thereon,” become part of the constitution. On the other hand, amendments proposed through the initiative or legislative substitutes become part of the constitution if approved “by voters equal in number to at least thirty percent of the total number of ballots cast at such state election and also by a majority of the voters voting on such amendment.”

Utah amended their constitution in 1998 to require a two-thirds vote of the people in order to adopt by initiative a state law allowing, limiting, or prohibiting the taking of wildlife or the season for or method of taking wildlife.

Excerpted from the Initiative & Referendum Almanac by M. Dane Waters.

Registration Requirements for Petition Circulators

Registration requirements have been suggested in the legislatures of many states in recent years, making registration an up-and-coming threat to petitioning rights.

Forcing petition circulators to register means petition supporters must obtain permission from the state to engage in free speech activity. Both Federal and state courts have been very clear that petitioning is highly protected political speech under the First and Fourteenth Amendments to the Constitution. The protections on free speech activity outlined in the United States Constitution are there specifically to protect against the restriction of speech by the state. No one should have to get permission from the state to exercise their rights under the First Amendment.

 

Residency Requirements

Residency requirements are one of the most frequently imposed restrictions on the initiative process. These laws require that someone circulating a petition for an initiative, referendum, or recall effort be a resident of the state, county, or locality that the petition is aimed at. Supporters of such requirements claim that they are needed to reduce fraud and insure that circulators can be found if signatures are challenged.

Residency requirements are almost impossible to enforce while a petition is being circulated. As a result, voters are often disenfranchised when their signature on a petition is thrown out by election officials because a circulator did not meet the residency requirement. This is compounded when qualifications for residency are unclear or are arbitrarily enforced by officials. Critics of residency requirements claim they also prevent petition proponents from using professional signature collectors, which are often necessary to collect the number of signatures needed in the amount of time allowed.

Residency requirements in three states—Ohio, Arizona, and Oklahoma—were struck down by federal courts in 2008 for violating the First Amendment. In all three cases the courts determined that residency requirements necessarily reduce free speech by reducing the number of people who are able to carry a political message; i.e. a petition. The courts have also noted that non-resident circulators are no more likely to commit fraud than resident circulators.

Currently, residency requirements are being challenged in Colorado and Nebraska. In the Colorado case a federal judge has suspended the state’s residency requirement, finding it likely to be struck down.

14 States  Have Residency Requirements

Alaska, Arizona, California, Colorado, Idaho, Maine, Michigan, Mississippi, Montana, Nebraska, North Dakota, South Dakota, Wyoming and Utah.

Residency Requirements for Petition Circulators and the Courts

Green Party of Arizona v. Bennett – United States District Court in 2010 ruled that Arizona cannot ban out of state petition circulators for political party ballot access petitions because such ban violates petitioners First and Fourteenth Amendment rights to freedom of speech and association.

Bogaert v. Land – United States District Court in 2009 finds that Michigan’s requirement that people circulating petitions for a recall election be residents of the political subdivision they are circulating in violates petitioners First and Fourteenth Amendment rights to freedom of speech and association.

Yes on Term Limits v. Savage – United States Tenth Circuit Court of Appeals in 2008 strikes down Oklahoma’s ban on non-resident petition circulators, finding that it violates petitioners’ First and Fourteenth Amendment rights to freedom of speech and association.

Nader v Blackwell – United States Sixth Circuit Court of Appeals in 2008 strikes down Ohio’s ban on non-resident petition circulators for political candidates, finding that it violates the first amendment rights of petitioners.

Nader v. Brewer – United States Ninth Circuit Court of Appeals in 2008 finds that Arizona’s ban on non-resident petition circulators for presidential candidates violates petitioners’ constitutional rights. In their decision the Court notes that the2000 Jaeger decision by the Eighth Circuit was poorly decided and failed to take relevant precedent into account.

Preserve Shorecliff Homeowners v. City of San Clemente – California Court of Appeals in 2007 strikes down portions of the state election code requiring people who circulate petitions for a veto referendum be residents of the city they are circulating in because those sections violate petitioners’ First and Fourteenth Amendment rights to freedom of speech and association.

Frami v. Ponto – United States Seventh Circuit Court of Appeals in 2003 ruled that a statute requiring that petition circulators be residents of the state and of the political subdivision in which they were circulating petitions, was an unconstitutional abridgement of the first amendment.

Chandler v. City of Arvada - United States Tenth Circuit Court of Appeals in 2002 invalidated a requirement that petition circulators in Arvada, CO be residents of the city.

Krislov v. Rednour – United States Seventh Circuit Court of Appeals in 2000 invalidated Illinois’s law requiring that petition circulators be residents of the state because the requirement violates petitioners’ First and Fourteenth Amendment rights to freedom of speech and association.

Initiative & Referendum Institute v. Jaeger – United States Eighth Circuit Court of Appeals in 2000 upholds North Dakota’s requirement that petition circulators be state residents, noting that plaintiffs did not present evidence that such requirements reduce free speech.

Lerman v. Board of Elections – United States Second Circuit Court of Appeals in 2000 holds that New York’s requirement that witnesses to ballot access petitions be residents of the subdivision the election is held is “unconstitutional on its face.”

Term Limits Leadership Council v. Clark – United States District Court in 1997 found that Mississippi’s requirement that petition circulators be state residents “clearly…burden plaintiffs’ political expression” and therefore violated the first amendment. 

 

Distribution Requirements

A distribution requirement is a legislative or state constitutional mandate requiring that petitions for a ballot measure must be signed by voters from different political subdivisions – such as counties – in order for the ballot measure to qualify for the ballot. Distribution requirements have been struck down in five states, and are currently under legal challenge in three.

Supporters of distribution requirements argue that they are a way of demonstrating “widespread support” for a ballot measure because registered voters from a variety of political subdivisions signed petitions for the ballot measure. In reality, these requirements diminish the voice of voters in certain districts while unfairly amplifying the voice of voters in others.

Distribution requirements can significantly drive up the cost of petition drives by forcing signatures to be collected in sparsely populated areas. Federal courts have ruled that these requirements are so onerous on the free speech rights of petition proponents that they violate the constitution. In addition, courts have ruled that distribution requirements violate the equal protection clause – one person, one vote – because they require distribution over subdivisions that aren’t equal in population.  Distribution requirements have been struck down in Illinois, Idaho, Utah, Montana, and twice in Nevada.

The following states currently have distribution requirements: Alaska, Arkansas, Florida, Maryland, Massachusetts, Mississippi, Missouri, Montana, Nebraska, Nevada, Ohio, Utah, and Wyoming.

Currently, distribution requirements are under legal challenge in Nebraska, Nevada, and Ohio.

Distribution Requirements and the Courts

 

Marijuana Policy Project v. Miller ­– United States District Court in 2007 found that Nevada’s requirement that signatures be gathered in each county in the state was virtually identical to another Nevada distribution requirement ruled unconstitutional by the Ninth Circuit Court of Appeals.

ACLU v. Lomax – United States Ninth Circuit Court of Appeals in 2003 struck down Nevada’s requirement that petition signatures come from 13 of the state’s 17 counties, noting that the requirement was identical to the one struck down in Cenarrusa.

Montana PIRG v. Johnson – United states District Court in 2003 ruled that Montana’s county-based distribution requirement was unconstitutional.

Gallivan v. Walker - Utah Supreme Court in 2001 struck down that state’s county-based distribution requirement, declaring that the initiative right is a “fundamental right implicit in a free society” and that the distribution requirement impinged on it.

Idaho Coalition United for Bears v. Cenarrusa – United States District Court in 2001 Idaho’s distribution requirement for initiatives was unconstitutional on the grounds that the restrictions violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution. In 2003, the decision was appealed by the state of Idaho to United States Court of Appeals for the Ninth Circuit, which affirmed the lower court’s ruling.

Moore v. Ogilvie – United States Supreme Court in 1969 struck down an Illinois’s county-based distribution requirement saying that it “applies a rigid, arbitrary formula to sparsely settled counties and populous counties alike, and thus discriminates against the residents of the populous counties in the exercise of their political rights in violation of the Equal Protection Clause of the Fourteenth Amendment.”