7.

8.

9.

10.

11.

(a)

Time of election petitions are turned over to county clerks,
who have 15 days to verify them and return them where filed
($11). Once verified, the officer named in the petition has
five days to resign. Otherwise, a special election is called
($13).

Vote necessary for recall apparently majority of votes cast (S$18, 19).

Effective date of recall
officially declared ($16).

when results of special election are

Filling vacancy vacancy is filled at special recall election. Officer sought to be recalled is automatically placed on ballot, unless he requests otherwise; other candidates file nomination papers signed by at least 5% of the registered voters of the electoral district ($21). The candidate receiving the largest number of votes is declared elected for the remainder of the term ($23).

Other

Members of Congress. Prior to primary, candidates for Federal office may state whether or not they will abide by a recall election. If so, a U.S. Senator or Representative who is recalled in such an election is expected to resign when the results are known (Art. II).

(b) U.S. District Judges: Procedures are included for an advisory recall of U.S. District Judges. These procedures are basically the same as those discussed above; however, the results, if a recall is favored, are forwarded to the President and U.S. Senate (Art. III).

THE LIBRARY OF CONGRESS,
CONGRESSIONAL RESEARCH SERVICE,

Washington, D.C., February 25, 1977.

CONSTITUTIONAL PROBLEMS INVOLVING A NATIONAL REFERENDUM

In regard to a national referendum, it should be noted that referendums in general are the products of State constitutions which give the people the power to compel review of legislative enactments; for example, see the California Constitution, Article XVIII, as amended; Maryland Constitution, Article XIV as amended, and Ohio Constitution, Article XVI and Article II, §1c. The term "referendum" refers to the power reserved to the people in some jurisdictions to approve or reject at the polls any act of the legislature. Arkansas Tax Com. v. Moore, 103 Ark. 48, 145 S.W. 199 (1912); People ex rel, Tate v. Provost, 55 Colo. 199, 134 P. 129 (1913); Carson v. Oxenhandler, 334 S.W. 2d 394 (1960); Norris v. Cross, 25 Okla. 287, 105 P. 1000 (1909); Kadderly v. Portland, 44 Or. 118, 74 P. 710 (1903), reh. den. 44 Or. 160, 75 P. 222 (1904). Also the term encompasses the power of the people to approve or reject legislation which has been referred to them by the legislature. By the referendum the people may act to prevent an act of the legislature from becoming effective and may also reinstate an act which the legislature has expressly repealed. See, Klosterman v. Marsh, 180 Neb. 506, 143 N.W. 2d 774 (1966).

Many States have adopted referendums by amendments to their constitutions; the effect of such amendments, and of statutory provisions for referendums, is generally to place legislative powers in the legislature but to reserve to the electorate the concurrent right to propose laws and constitutional amendments and to approve or disapprove such enactments. Adams v. Bolin, 74 Ariz. 269, 247 P. 2d 617 (1952). A referendum is distinguished from an initiative in that the former is an act of legislature and the latter is an act initiated and adopted by only the people. People v. Wod, 88 Cal, App. 621, 264 P. 298 (1928). The peronly the people. People v. Wood, 88 Cal, App. 621, 264 P. 298 (1928). The pervisions granting the respective powers. State ex rel Hunzicker v. Pulliam, 168 Okla, 632, 37 P. 2d 417 (1934).

In many States the scope of the right secured to the people by the referendum has been limited by exempting certain types of enactments from its operation, such as laws necessary for the support of the State government and public institutions as well as revenue and appropriation acts. State ex rel. Hopp v. Meyers, 58 Wash. 2d 320, 363 P. 2d 121 (1961); Winebrenner v. Salmon, 155 Md. 563, 142 A. 723 (1928).

It should be noted that a referendum, as indicated in the above statements, essentially refers to the power of the people to express their approval or disapproval of legislation and not of elected officials. It does not seem that the common law concept of a referendum would encompass a referendum to determine the wishes of the electorate as to whether an elected public official should resign. The scope and the authority of a referendum rest upon constitutional and statutory provision; without these the power of referendum does not exist. The United States Constitution is silent about any national referendum; referendums have been totally left up to the power of the states to enact and regulate.

Unlike many State constitutions, the United States Constitution makes no provision for the referendum process. Under Article I, 84 even the "Times, Places and Manner of holding Elections for Senators and Representatives" to Congress are entusted initially to the differing practices and customs of the fifty States subject to Congress' prerogative of determining such matters. Congress has legislated with respect to the time of election of Senators and Representatives (2 U.S.C. §§1,7). Under Article I, §2 and the Seventeenth Amendment the States were granted the primary authority to establish qualifications for voting. Also Article II, §1 left to the States the manner of appointing presidential electors even though Congress was reserved the right to determine the time of choosing electors and the day on which they shall give their votes. In short the basic scheme of the United States Constitution was to leave much of the election process, including the referendum, to the States. However, Congress might, through its power to expend for the general welfare, make funds available to the States for the purpose of getting the sense of the people on particular matters, but there is no readily available Federal mechanism to conduct such a national referendum.

Assuming for the sake of argument that a national referendum could take· place regarding the enactment of a Federal law, the result of the referendum would have no real effect on approving or disapproving such legislation since the Constitution under Article I, §1 provides that: “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." Only Congress has the power to enact legislation and to approve and disapprove of legislation under our republican form of government since all legislative powers are vested in it. In Phillips v. Payne, 92 U.S. 130 (1875), the United States Supreme Court suggested that, absent a constitutional amendment, a Congressional effort to place proposed legislation before the people for their approval through a referendum would constitute an unlawful delegation of power.

THOMAS M. DURBIN,

Legislative Attorney,
American Law Division.