We the people: a needed reform of state initiative and referendum procedures.

• Author: Theodore, Nicholas R.

1. INTRODUCTION

   The landscape of the United States' political elections has been marked by many dramatic changes in the past century. While many are quick to point to several changes in political campaigning or the shift from a voting base predominated by white males to one that embraces women, minorities, and the youth vote, one largely unnoticed political trend that has grown substantially in recent decades is the use of the ballot initiative and referendum. (1) Ballot initiatives enable citizens to bypass their state legislatures by proposing a new or amended law to be placed on the ballot in the next election. (2) Referenda, on the other hand, are typically measures that originate with state legislatures and are placed on the ballot by the legislative body to allow citizens to vote on the legislation. (3) Having existed in some form in the United States since the 1600s, (4) the ballot initiative and referendum have served as two of the few remaining strongholds of direct democracy in the United States.

   Today, all but one state require a citizen vote before the state constitution can be amended. (5) Even while many states, including Missouri, (6) offer the ballot initiative and referendum, procedural blights hinder the initiative process. Missouri's initiative procedure, (7) much like the procedures found in several other initiative states, vests a significant amount of authority in the secretary of state by allowing her to draft the summaries of the submitted initiatives that appear directly on the ballot. (8) Given that these ballot summaries are typically the last, if not the only, material that many voters will read prior to casting their vote, (9) the summaries are often the subject of litigation due to perceived unfairness or insufficiency. Part II of this Comment begins by detailing the history of the ballot initiative and referendum in the United States. Part III next details the different types of initiatives and referenda commonly used in the United States. Part IV discusses the merits of the ballot initiative, discussing both benefits and disadvantages. Part V gives an overview of various state approaches to initiative procedures. Part VI introduces some of the various procedural shortfalls in the initiative process. Part VII discusses Missouri common law and how the courts have helped shape Missouri's law in the initiative process. Part VIII examines Brown v. Carnahan, a case handed down by the Supreme Court of Missouri in 2012 that clarified many aspects of ballot initiative procedures. Part IX concludes by discussing the future of the ballot initiative in Missouri and detailing steps that could be taken by the Missouri General Assembly to slow the large increase in the number of ballot title challenges in recent years.

2. HISTORICAL BACKGROUND OF BALLOT INITIATIVES AND REFERENDA

   1. National History of Ballot Initiatives and Referenda

      Although the use of initiatives and referenda has greatly increased in recent decades, the initiative and referendum have existed in some form in the United States since the 1600s when citizens of colonial New England placed ordinances and other issues on town meeting agendas to bring the issues to a vote. (10) Thomas Jefferson first proposed the referendum process for inclusion in the 1775 Virginia State Constitution. (11) In 1778, Massachusetts became the first state to hold a statewide referendum for its citizens to ratify its constitution. (12) And in 1792, New Hampshire became the second state to do so. (13) Congress subsequently required that all new states admitted to the Union after 1857 employ referenda procedures for proposed changes to the states' constitutions. (14) However, while initiative and referendum procedures are very common at the state level, there is not a procedure for either initiatives or referenda at the federal level. (15)

      Although constitutional referendum vested the power of direct democracy in the people, in the late 1800s Americans began to realize that they lacked the "ability to reign in an out-of-touch government or a government [marked] by inaction." (16) They realized that something needed to be done to protect the representative democracy. (17) The late nineteenth and early twentieth centuries saw the establishment of the Populist and Progressive movements, both based on feelings of general dissatisfaction with government and its inability to effectively address the most pressing contemporary issues. (18) Outspoken critics soon proposed "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." (19) The "cornerstone" of the Populist and Progressive movements was the initiative process itself, for without it, many of the political reforms would have been blocked by state legislatures. (20) The Populists and Progressives took advantage of the modification clauses that were required in state constitutions for their admission to the Union and began "pushing state legislators to add an amendment allowing for the initiative and popular referendum process." (21)

      The efforts of the Populists and Progressives began to pay off in 1897 when "Nebraska became the first state to allow cities to place initiative and referendum in their charters." (22) The reformists saw continued success when, in 1898, South Dakota adopted its own statewide initiative and referendum process (23) By 1911, initiative and referendum amendments were found in the state constitutions of South Dakota, Utah, Oregon, Montana, Oklahoma, Maine, Michigan, and California. (24) Additional states would soon follow, but despite popular support for the movement, the elected class pushed back against the efforts to introduce initiative and referendum amendments. (25) Even though ballot initiative and referendum amendments were largely successful in western states, reformists in southern and eastern states faced greater hurdles to initiative amendments. (26) In particular, the legislators in southern and eastern states feared that the initiative process would be used as a tool by African-Americans, Irish-Catholics, and immigrants to "enact reforms that were not consistent with the beliefs of the ruling class." (27) By 1915, twenty-four states had adopted initiative or referendum procedures; however, the push for adoption in additional states was beginning to wane due to the perceived threat of German militarism. (28) For the next forty years no additional states adopted the initiative and referendum process. (29) In 1959, Alaska was admitted to the Union with initiative and referendum in its original constitution. (30) Following Alaska, the last four states to successfully adopt initiative and referendum amendments in their state constitutions were Wyoming in 1968, Illinois in 1970, Florida in 1972, and Mississippi in 1992. (31)

      This form of direct democracy serves as a complement, and not an alternative, to the representative democracy found in general elections. (32) Although aspects of the initiative and referendum process predate our Constitution, (33) the first true ballot initiative was not voted on until 1904 in Oregon. (34) Historians say that the modern national initiative movement did not begin until the late 1970s with Proposition 13 in California. (35) Proposition 13 and the initiative process that made it possible were driving forces in the tax revolt of the 1970s and, within two years of Proposition 13 passing," 43 states had implemented some form of property tax limitation or relief and 15 states lowered their income tax rates." (36) Proposition 13 was the catalyst and the ballot initiative provided the vehicle for the American populace to effect meaningful tax reform in a very short period of time. (37)

      Several other statewide reforms were made possible through the initiative process. For example, women gained the right to vote, movie theatres and other stores were allowed to be open on Sunday, poll taxes were abolished, states were barred from funding abortions, the eight-hour workday was created, medical marijuana was legalized, physician-assisted suicide was legalized, campaign finance reform was passed, prohibition was adopted and then repealed, and the death penalty was adopted and abolished. (38)

      While the use of the initiative and referendum has increased in recent decades, in order to fully appreciate the effects of the initiative and referendum on the legal framework of the United States, it is helpful to consider the passage rates of the initiatives, state-to-state disparity in their use, and the number of laws passed by legislatures as compared to the number passed through the initiative process. From 1904 through 2011, 2,372 state-level initiatives appeared on state ballots, and 968 (forty-one percent) were approved. (39) Oregon historically (and even today) votes on the most initiatives. (40) California is a close second. (41) "Even though 24 states have a statewide initiative process, over 60% of all initiative activities have taken place in just six states[:] Arizona, California, Colorado, North Dakota, Oregon, and Washington." (42) Although there have been many ballot initiatives, in California, for example, only twenty-six percent of all initiatives filed make it onto the ballot and only eight percent of those filed are actually adopted. (43) Nationally, about twenty-two percent of the ballot initiatives filed during the 2000 election made it to the ballot. (44) Additionally, the number of laws passed using initiative and referendum is very small in comparison to the number of laws passed by legislatures. (45) For example, in 1996, one of the peak years for initiatives, ninety-three initiatives made it onto ballots and forty-four statewide initiatives were passed and adopted, compared to approximately 14,000 laws and resolutions adopted by the legislatures in the same twenty-four states. (46)

   2. History of...