While
the First Amendment to the United States Constitution
guarantees the right to
“petition government for redress of grievances,” this is not considered a guarantee
of an official process by which citizens can petition
to place questions on the
ballot. Since South Dakota became the first state to
recognize some form of
statewide citizen initiative rights in 1898, twenty-five other states have
joined recognizing the right to initiate laws through
petition and created a
process for citizens to make their voices heard at
the ballot box. These
processes operate under widely varying laws, rules, regulations,
and
restrictions, so that the petition rights of citizens in one state may be
quite different — and far less secure — than the rights of citizens in another
state.
The History of Statewide Initiative &
Referendum Rights
As
governments have grown at local, metropolitan, state,
and federal levels, the
power of entrenched political factions has also grown,
vis-à-vis the citizenry.
Traditional representative government has proven unreliable
in restraining
itself constitutionally and electorally, often to the
point of uniting all
branches of America’s distributed powers against the very people it was
meant
to serve. Institutions of direct democracy have evolved
to help restore this
balance of power, in effect fulfilling a basic promise
of republican governance:
the right to petition government. Initiative and referendum
thus serve as an
expansion and perfection of one of the most basic principles
of a limited
republic.
The
movement for statewide initiative and referendum rights
grew out of the
“Populist” and “Progressive” movements in the late nineteenth and early twentieth
centuries. During this period voters became increasingly
distrustful of
government and the moneyed special interests that controlled
it. Voters saw the
power of initiative and referendum to restore a voice
to the people and allow
for the enactment of other reforms – such as women’s suffrage, secret ballots,
and primary elections – through the ballot initiative. This push for an
additional check on the power of politicians lead to
the amending of several
state constitutions to provide for a citizen initiative
process, especially
among western states, between the turn of the century
and American entry into
the first World War.
It
was not until 1959, when Alaska entered the Union with initiative and
people’s
veto referendum, that another state recognized citizen
initiative rights. Since
then only three states have added or restored a statewide
initiative or
referendum process. The fight for statewide initiative
rights continues today
as activists in many states work to convince legislators
to amend their state
constitutions to provide for an initiative process.
Because legislators are
generally adverse to petition rights, and most states
have high requirements
for amending their constitutions, these activists face
an uphill battle.
Petition Rights by State: An Overview
Statewide
petitioning rights include three different processes: initiated state statutory
laws, initiated state constitutional amendments, and
people’s veto referendums
on acts of state legislatures. Of the twenty six states
that have some form of
petitioning rights, twenty one allow for statewide
statutory initiatives,
eighteen allow initiated constitutional amendments,
and twenty three allow for people’s
veto referendums. Various states have different combinations
of this, which can
be seen in this chart.
Initiative & Referendum Rights in Practice
Though
the right to petition government has several centuries
of development, and
institutionalized rights to initiative and referendum
just over a century of
practice in this country, these mechanisms are by no
means universal throughout
the United States. Actual processes vary widely in
how accessible the ballot is
to citizens, and citizens of states listed side-by-side above may have
substantially less effective rights. Attempts to restrict
initiative and
referendum rights by putting up barriers to how petition
signatures can be
collected, who can work for petition campaigns, and
how campaign workers can be
paid are common and often successful, though federal
and state courts have
regularly struck down certain barriers as violations
of First Amendment rights.
In many ways the politics of initiative and referendum
have switched from
securing petition rights for more people in more states,
to maintaining
existing rights in the face opposition from politicians
and special interests.
In
its first annual report on statewide initiative and
referendum rights, Of the People, By the People, For the
People: A 2010 Report Card on Statewide Voter Initiative Rights, the
Citizens in Charge Foundation graded each state on the accessibility of its
initiative process and found that most of the 26 states with some form of
statewide initiative rights received a grade no higher
than a C. These states
recognize varying levels of petitioning rights, and
most place restrictions
against those engaged in the process that lower their
grade. Some states — such
as Missouri and Ohio — have robust processes with few restrictions, earning
them A-range grades. At the other end of the spectrum, Wyoming
recognizes
statewide statutory initiative and referendum rights,
but lacks a process to
amend the state constitution through initiative. Wyoming’s limited process,
along with the many restrictions placed on petition
gathering by the state
legislature, earns Wyoming an F.
States
that don’t recognize any statewide form of petition rights all
receive failing
grades of D or F. While many of these states do recognize
local petitioning
rights, the failure to provide citizens the ability
to propose either statewide
statutes or constitutional amendments means citizens
are denied the means to
effectively control the state government to which local
governments are legally
subservient.
In
order to have an initiative process that serves the
citizenry of the state,
that process must be accessible to the average citizen.
Restrictions on who can
participate in the process and on what terms, as well
as on where and how
voter’s signatures can be collected, how long proponents
have to collect the,
and how many they are required to collect increase
the cost of accessing the
ballot – which can easily exceed $1million in states such as California – and
drive out average citizens. Many
restrictions, such as requiring that people who collect
signatures be residents
of the state they are working in and prohibiting paying
those workers on a
per-signature basis have been found by courts to violate
the First Amendment to
the U.S. Constitution. Fundamentally, any attempt to
restrict the ability of
the people to use the initiative and referendum process
undermines our basic
democratic principle that government be of, by and
for the people: a principle
enshrined in America’s democratic republic.
Citizens
in Charge Foundation hopes that these grades will be
used as a guide to help
citizens and lawmakers bring more openness and accessibility
to every state
with an initiative and referendum process, and encourage
those states without
statewide initiative and referendum to provide citizens
with these powers.
Method
In
order to draw appropriate comparisons across all 50 states, Citizens in Charge
Foundation looked at the most prominent and consistent
factors affecting the
people’s ability to petition government. Examining state constitutions
and
legal codes, we looked at what outlets for citizen-led government were provided
— statewide citizen-initiated constitutional amendment, statewide statutory
initiative, statewide referendum, the existence of
a local initiative and
referendum process, and the breadth of local processes
— and awarded points
accordingly.
We
then noted the restrictions that states have placed
in the way of citizens
petitioning their government — short circulation periods, high signature
requirements, bans on campaign workers from other states
circulating petitions,
bans or limitations on paying campaign workers who
circulate petitions by the
number of signatures they collect, and requirements
that petitions be
circulated according to a geographical/political distribution — and deducted
points for each restriction.
Some
states suffer from very unique barriers to the petition
process, which for
comparison purposes were not calculated in their grade,
but are noted at the
end of their state report.
The report found the following essential components
to initiative rights:
Constitutional Amendment
States
that allow citizens to propose amendments to the state
constitution through a
petition process were awarded points. A constitution
is the fundamental
contract by which citizens establish their government
and citizens should have
the power to propose changes to be voted on by the
people.
Statutory Initiative
States
were awarded points for allowing citizens to propose
statutory measures through
a petition process. This process allows citizens to
propose simple statutes to
be voted on by the people. States vary on whether such
a voter-enacted statute
can be amended or repealed by the state legislature,
but in most cases,
legislatures are able to make changes to initiative
statutes.
Referendum
States
that allow citizens to call a statewide referendum
— or People’s veto of acts
of the legislature — were given points. A referendum allows citizens to
delay
the implementation of a law passed by the legislature* until an election can be
held whereby voters can either approve or reject the
act passed by the
legislature. As a reaction to an act by the state legislature,
the referendum
is more limited than the initiative.
Local Initiative
Many states recognize initiative and
referendum rights at the local level, such as in certain
municipalities or other local jurisdictions, and states
were recognized in the report for giving local petitioning
rights at the local
level. Local initiatives give citizens the power to
affect laws and initiate
government reforms close to home.
__________
*Wyoming is the only state where a referendum petition
does not delay
implementation of a legislative statute until an election
to decide the matter
is held.
The report found the following
restrictions significantly hampered citizen initiative
rights:
Residency Requirements for Campaign Workers
States
that ban non-residents from gathering petition signatures for initiatives
and
referendums lost a point. This restriction prevents
proponents from hiring the
best qualified people, making it more difficult to
meet the signature
requirements to qualify a
measure for the ballot. Residency requirements have
generally been struck down
by federal courts as unconstitutional violations of
First Amendment rights, but
remain on the books in 13 states, Ohio’s ban having been struck down in May of
2010 (bans have been enacted in recent years in Montana,
Nebraska and South
Dakota).
Restrictions on Campaign Worker Pay
States
that ban or limit paying campaign workers who collect
signatures on a petition
based on the number of signatures they collect, or
otherwise restrict how
campaign workers can be paid, lost a point. 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.
Geographic Distribution Requirements
States
that require petition signatures to be collected within,
or distributed over, a
certain number of subdivisions in the state were penalized.
Distribution
requirements increase the complexity of qualifying
a measure, thus driving up
the cost and difficulty. When distribution requirements
are based on geographic
boundaries, rather than population-based, forcing signatures to be collected in
sparsely populated areas, the costs are further increased.
Federal courts have
universally struck down non-population-based distribution requirements as
violations of the Constitution’s equal protection clause—the “one man, one
vote” principle.
Insufficient Petition Circulation Periods
Petition sponsors need ample time to collect the tens
of thousands, hundreds of
thousands, or in some cases more than a million signatures
needed to qualify a
measure for the ballot. Short circulation periods make
it nearly impossible for
grassroots volunteer efforts to qualify a ballot measure.
We deducted from
states with restrictive circulation periods for constitutional
amendments and
statutory initiatives. Periods of less than nine months
were considered
restrictive.
High Signature Requirements
High signature requirements make it very difficult
to qualify initiatives for
the ballot, and
nearly impossible for grassroots volunteer campaigns
to qualify. We deducted
from states that required signatures of more than 8 percent of the number of
voters (in the last election for statewide office) to qualify a constitutional
amendment for the ballot. We deducted from states with
signature requirements
above 10 percent.
Scope of the Report
In
assigning and subtracting points, only the laws in
place as of December 2009
were
considered. The factors selected for grading were both
uniform across the
states and had a significant effect on the ability
of average citizens to use
the petition process. Oftentimes, factors other than
those listed in this
report affect the process, but vary so widely among
states that including them
would call for subjective judgments. In cases where
these other factors have a
major impact on the ability of citizens to petition
their state government, we
have made note of them under the “Additional Notes” section at the end of that
state’s report.
Grades
for the fifty, along with the full report, can be viewed
by going to www.CitizensInCharge.org/stategrades.
We are happy to announce that Initiative & Referendum Institute Founder M. Dane Waters will be
kicking off the 2010 US Conference on Initiative & Referendum and Global Forum on Modern Direct Democracy
on July 30, 2010. Those of you who have been involved with the initiative
& referendum movement for some time will remember that
Dane spearheaded IRI’s 1999 national conference on petition rights held in Washington,
DC. That conference was a one of a kind boon to the
I&R movement – until now! Please join Dane and initiative & referendum supporters from around the world to kickoff
the 2010 conference in San Francisco. 
