wisdom views of the initiative process were all discarded, and the familiar litany of other criticisms of the initiative process were found to be, at the least, open to question. The findings of this study, and the California experiences with initiatives over the last several years, have led this writer to question the prevailing negative assessment of initiatives. The initiative does provide a last resort to the public to bypass a recalcitrant legislature and/or governor. Indeed, legislatures may very well find it to their advantage to present propositions to the voters because of the inevitability of an initiative effort. It is hoped that other political scientists will reconsider this direct democratic technique and its potential. Clearly, initiatives do allow for decisive decisions on particularly sensitive, hard to resolve, issues.

[From Parliamentary Affairs, Vol. 24, No. 2, Spring 1971]

DIRECT DEMOCRACY-A STUDY OF THE

Introduction

A

AMERICAN REFERENDUM

by Penelope J. Gazey

MERICAN democracy is characterised by a greater opportunity for direct participation in government by the people than is usual in most democracies. The long ballot, frequent elections and such procedures as primary elections, the initiative, the referendum, and the recall are examples of this tendency. The question arises as to how Americans use these instruments of direct democracy. This article seeks to find out by examining one of them-the referendum. Although referenda are also used by local governments, I shall confine my inquiry to their use by states.

Since the end of the Second World War the American Federal government and the states governments have extended their powers because of increased demands made on them by various sections of the electorate. This has led to a dramatic growth in the tasks of governments at all levels, together with rising taxation to keep pace with these developments. In order to give the electorate a fuller role in determining the directions and boundaries of such tendencies, the referendum would seem to be a useful device. The referendum may be defined as a means by which a measure is submitted directly to the people for approval or disapproval.

Data for this research came in response to queries that I sent to the secretaries of state of the American states which use the referendum. I received copies of referenda issues, records of their outcomes, and constitutional and statutory provisions relating to the use of the referendum in the states which use them. The period I examined was from 1945 to 1968.

There are four types of referenda, the compulsory, the advisory, the legis lative, and the petition. A state may be said to use the compulsory referendum when its constitution contains clauses stipulating that certain measures must be referred to the people for their approval or disapproval. The advisory referendum is used for purposes similar to those for which the compulsory referendum is employed, but there is an important difference-the approval or disapproval of the voters does not legally bind the legislature. The legislative referendum is when the legislature if it wishes may refer a statute it has enacted to the electorate. If the electorate accepts it, it becomes law. If the electorate rejects it, it does not. When the petition referendum is employed, the initiative lies with the voters. After collecting a certain number of signatures as specified in the state constitution, the voters can compel the legislature to refer certain laws to them, which they then vote on.

The compulsory referenda is the oldest one. Compulsory referenda are often used in connection with such basic matters as adopting a new constitution, and constitutional amendments, the issue of bonds, increasing the indebtedness of the state, appropriations, establishing banks, changing the site of the state capital, and the extension of the franchise. Massachusetts provides the earliest example of the compulsory referendum. In 1776 the Massachusetts Assembly decided to alter the state Constitution, but did not do so until a resolution from the people recommended it in 1777.

The advisory referendum is nearly as old as the compulsory referendum. It was used by the Massachusetts Assembly in 1779 when the voters were asked whether or not a constitutional convention should be called.

The legislative referendum dates from the mid-nineteenth century. During the 1850s and 1870s controversial issues in regard to which the legislature felt the need for support of the people were sometimes submitted to the voters. In 1845 voters in Texas decided on the site of the state capital. In 1850 a legislative referendum was held in Michigan to determine whether to create a state bank. In 1848 voters in Colorado decided whether to extend the franchise.

The Progressive movement gave the final impetus to the adoption of the referendum by American states. The petition referendum was of course only one of the several new political procedures which Progressivism brought in. Others were the initiative, the recall, civil service examinations, the direct election of Senators, primary elections, and the long ballot. All were intended to increase popular participation in government.

I should now like to discuss the working of each of the four types of referendum.

The Compulsory Referendum

Compulsory referenda are used for many purposes. One of the most frequent is for authorizing the issue of bonds. The Legislatures issue bonds which are bought by the residents of states who in doing so lend their money to the state government and receive interest on it.

Some examples of the creation of bonds are given below. In Arkansas all bonds except those for the refunding of the existing indebtedness of the State, and for the assumption and refunding of valid outstanding road improvement bonds, cannot be issued without the consent of the electors. In Kentucky the authorisation by the General Assembly of an incurrence of debt other than to meet casual deficits must be voted on by the electorate.

Changing the site of a state capital usually requires approval by the voters in a compulsory referendum. In Colorado two-thirds of all electors in the state must agree before this can occur. In Illinois, no state bank can be established without the approval of the electorate. In Wisconsin any extension of the suffrage must be approved by the people.

In all American states the people vote on new Constitutions and constitutional amendments. In this article I shall only deal with Constitutions and constitutional amendments in those twenty-nine states that also conduct referenda for other purposes. A new Constitution or constitutional amend

ment can be enacted in a number of ways-by a Constitutional convention, by the legislature, or by initiative. While most states authorize several or all of these methods, in all cases a referendum is employed at some stage.

When a constitutional convention is called by the legislature, a certain percentage of members elected to both houses must agree to the proposal. The percentage varies from two-thirds of each house (as in California) or a majority of both houses (as in Kentucky). In California, Colorado, Illinois, Kentucky, Massachusetts, Michigan, Missouri, Nebraska, New Mexico, Ohio, Oklahoma, Oregon, Utah, Vermont, Washington, and Wisconsin the electorate votes on the actual calling of the convention, the proposal having been submitted to them by the legislature. After the convention has completed its work, the proposals that are adopted are submitted to the electorate for their approval or rejection.

In twenty-one states' the legislature draws up constitutional amendments which are then submitted to the people at a general or special election. Typically a qualified majority in the legislature must agree to this. In Georgia, Illinois, and Utah two-thirds of members elected to both houses must agree, and in Kentucky the requirement is three-fifths.

A Constitution can also be amended through the initiative procedure. After collecting a specified number of signatures voters can propose amendments which are voted on at the next election. This procedure is found in Arkansas, California, Massachusetts, Michigan, Missouri, Nebraska, North Dakota, Ohio, Oklahoma and Oregon. The initiative is outside the scope of this article and will therefore not be considered in detail.

The advisory Referendum

The advisory referendum is not widely found. According to the evidence I received from the Secretaries of State it is used only in Wisconsin. Unfortunately no account of the procedure which is used in holding this type of referendum was sent to me. Therefore I am unable to give a basic description of the working of it.

The Legislative Referendum

The decision to submit a law to the electorate to vote on it under the legislative referendum lies entirely with the legislature itself. The constitutions of the following states provided for it; Colorado, Georgia, Maine, Michigan, Missouri, Montana, New Jersey, North Carolina, Oklahoma, Oregon, Vermont, Washington and Wisconsin.

The primary data received from the states was not enlightening as to the procedure used. The constitutions of those states which hold the legislative referendum contained very brief clauses when referring to it. But it would seem that a majority of the legislature must agree to the submission of a statute to the electorate. The statute would be voted upon at the next

1 Arkansas, California, Colorado, Georgia, Illinois, Kentucky, Maine, Michigan, Missouri, Nebraska, Nevada, New Mexico, North Carolina, North Dakota, Ohio, Olkahoma, Oregon, Utah, Vermont, Washington, Wisconsin.

general election, or at a special election if the legislature so authorised this. The measure to be referred would be widely publicised in the press, and by means of posters and on radio and television. A simple majority of votes would decide the outcome of the referred statute. It is unlikely that the Governor would be unable to veto the referred law, as he is not allowed to veto laws referred under the petition referendum. Probably the legislature could amend the referred law after a suitable lapse of time.

The legislative referendum could be used when there was a controversy over a particular statute. This could be if the legislature itself was seriously divided over it, either within one particular house or within both houses. Alternatively it might be used if the electorate were agitating for the referral of a statute. They could persuade the legislature to use the legislative referendum by means of written letters, applications and demonstrations.

The Petition Referendum

The petition referendum is found in the following states; Alaska, Arizona, Arkansas, California, Colorado, Idaho, Kentucky, Maine, Maryland, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, New Mexico, North Dakota, Ohio, Oklahoma, Oregon, South Dakota, Utah and Washington. The procedure is that a set number of signatures, as specified in the state Constitution, must be collected for the petition. This can be as low as 7,000 in North Dakota and as high as 50 per cent of the registered voters at the last general election, as in Nevada. Petition forms are issued by the Secretary of State. These have attached to them either a full copy of the measure to be referred or a short title. The petitions are circulated by counties, and often the signatures must be collected in certain geographical proportions. The signatures must be certified as genuine by the person circulating the petition. This is done by means of an affidavit.

The time allowed for filing the petition with the Secretary of States varies. Some States, as in Arkansas or Colorado, require that the petition be filed within 90 days after the adjournment of the legislature. In Idaho not more than 60 days is allowed. The genuineness of the signatures is checked. This may be done as in Kentucky by the county courts. Anyone can present evidence to the County Judge as to the qualifications of the petitioners and the genuineness of their signatures. In Montana the county clerks compare the signatures with a list of registered voters. If signatures are invalidated, the sponsors of the petition are given time to collect additional ones.

The referred law may be suspended as soon as a certain percentage of signatures have been collected. In New Mexico this occurs when the petition is signed by not less than 25 per cent of the qualified electors and filed with the Secretary of State not more than 90 days after the adjournment of the legislative session in which the law in question was enacted. The referred law is then voted on at the next election. This is usually a general election but it can be a special one. In Arkansas 15 per cent of registered voters can petition for a special election. The Attorney General is required to prepare an impartial statement of the purpose of the law which is placed on the ballot sheet.