Ballot initiatives: recommendations for change.

• Author: Anderson, John B.

In 1968, Florida adopted a new Constitution. One provision in the 1968 Constitution provides a procedure for Florida citizens to amend or revise the Florida Constitution by ballot initiative. Also known as direct democracy, initiatives adhering to the strict requirements provided in Art. XI bypass the legislature and are submitted directly to the public for approval.(1) Twenty-three other states also provide for some type of initiative and referendum process,(2) and a record-setting 94 ballot questions were presented to the people in 20 states during the 1996 election.(3)

With the growth of popularity of ballot initiatives as a means of advancing matters where the public believes that the legislature should act but has failed to do so, some genuine problems have arisen with respect to using the initiative process to amend the Florida Constitution. We propose inserting in the present Art. XI, [sections] 3 of the Florida Constitution, as it pertains to the initiative process, a statutory initiative procedure to address these problems. We recommend that the Constitution Revision Commission(4) examine the issue and consider such a revision.

The Florida Constitution should address only those issues relating to the organization, power, and framework of the government and the rights of the people with respect to their government. Statutory law, on the other hand, commands or prohibits actions. We believe the difference between the two should be recognized and addressed as it pertains to ballot initiatives. While debate remains concerning the infringement of initiatives on the allocation of power under the Constitution to the legislature as an undesirable alteration of the very structure of representative democracy itself, one thing is certain--such initiatives are beginning to distort the primary purposes of the Florida Constitution: to limit the powers of the legislature; and to define and allocate government functions among the various branches. As such, the Florida Constitution is not "a vehicle for making positive law"(5) and some proposals are better suited for statutory initiatives. "By transcending time and changing political mores, the Constitution is a document that provides stability in the law and society's consensus on general, fundamental values. Statutory law, on the other hand, provides a set of legal rules that are specific, easily amended, and adaptable to the political, economic, and social changes of our society."(6) We would recommend that the Constitution Revision Commission consider an amendment to the Florida Constitution to provide for statutory initiatives.

Direct democracy advocates espouse the benefits of ballot initiatives for giving the citizenry a clearer role in demanding government action and responsiveness to the needs and desires of the people, as well as producing open and active debate on important issues, and increasing voter participation in the election progress. However, there are some serious problems with the process which the commission should address.

First is the signature requirement. Fla. Const. Art. XI, [sections] 3 requires that initiative proponents gather signatures equaling eight percent of the votes cast in each of one-half of the state's congressional districts and in the state as a whole in the most recent presidential election. While proponents claim that it unites groups and gets people on the streets advancing ideas, the fact is that paid signature gathers have assumed the task, creating the potential for fraudulent signatures, pressure upon individuals to sign the petitions, and ensuring increased costs. In 1976, the average cost to get an initiative on the ballot was $45,000, but by 1990 the costs rose to over $1 million.(7) Some limitations or restrictions on the use of professional signature-gatherers in the initiative process should be considered.

However, it will be necessary to proceed very carefully in this area in view of several decisions on this issue. In Meyer v. Grant, 486 U.S. 414 (1988), a unanimous Court ruled that a complete ban on paid petitioners violated the First Amendment; and on August 15, 1996, in Bernbeck v. Moore, 936 F. Supp. 1543 (D. Neb.) (1996), a federal district court held that the First Amendment was violated by a state law permitting...