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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.
Before the election the measure is published either in a publicity pamphlet or a newspaper or both. The publicity pamphlet contains the ballot title, the full text, a statement of purpose, the arguments prepared by the sponsors, and the arguments of the opponents. These pamphlets are mailed to the registered voters.
Usually a simple majority vote determines the outcome of a petition referendum, but in some states excessive abstention is taken into account. Massachusetts requires a majority which must not be less than 35 per cent of the total vote. The legislature can amend laws which have been referred through petition, but typically its ability to do so is restricted. In Oklahoma the referred law cannot be amended within three years of its passage, and in Washington amendments are not permitted for two years.
There are also special requirements for different types of laws. Emergency laws and laws for the immediate preservation of the peace are exempt from the petition. In Colorado, Michigan, Missouri, and Montana appropriation measures are always exempted. Nevada is the only state in which all laws can be referred to the voters.
I now turn to the matters of referendum issues. Can referendum issues be classified? Are there any recurring categories? All the states governments I wrote to were asked to send examples of post-1945 issues, and from the evidence I received I found that issues fell within certain patterns.
The single most important issue area concerns the machinery of government. I am referring to such matters as creation of executive departments in state government; matters concerning government personnel; electoral matters; local government and public utilities. The second most popular category concerns Fiscal and Financial matters, notably tax measures and increasing the indebtedness of state or local governments. Some measures dealt with a wide range of topics which have general economic ramifications such as labour legislation, the development of ports and even parking meters and trading stamps. Another category is comprised of measures concerned with social welfare. A small number of further issues were moralistic in their intentions and impact. These last measures are concerned with gambling and alcohol.
I shall now discuss each of the four types of referendum in the context of these issues. For purposes of analysis I have classified the isues as (1) machinery of government, (2) fiscal, (3) general economic, (4) social, and (5) moral.
Of the twenty-three states where petition referenda are held, ten provided me with examples of issues. They are Idaho, Maine, Maryland, Mon
These are 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, Washington.
tana, Nebraska, Nevada, North Dakota, Oklahoma, Oregon and Washington. In Colorado, Kentucky, Ohio and Utah, petition referenda may be held, but there have been none since 1945. As my sample is relatively small my conclusions must be regarded as tentative, but nevertheless as probably representative of the kind of issues on which the petition referendum is used generally.
Since 1945 there have been 59 referenda campaigns in these ten states. The totals for the issue categories are as follows:
Fifty-nine issues between ten states over a period of 23 years is not an overwhelming number and suggests that the petition referendum is not used very often. It does not seem, as is sometimes suggested, that this type of referendum inhibits the legislature from performing its proper law-making function. It seems possible that an important reason why there are so few campaigns is the cost of organising them. V. O. Key and W. W. Crouch, in a study of California, found that campaigns cost cost between $25,000 and $174,000. These figures are for campaigns conducted before the Second World War. During the last twenty years the American state governments, in common with the Federal government, have increased the scope of their functions. This has been inevitable with the growth of population, affluence and rising expectations. However, the voters have not always welcomed the consequent expansion of governmental powers. The referendum has again been a useful weapon in the implementation of this popular prejudice, and manifestations of this attitude are found in an examination of referenda relating to the machinery of government.
In the machinery of government category we find 19 issues shared between ten states. This makes an average of 1.9 issues per state over a 23-year period. This is not many, but it does mean that on at least one occasion in each state the legislature was challenged by the electorate over the growth in the role of government, which in the main is what machinery of government referenda is about. Of course the fact that referendum issues have been approved eleven times, as in this case, is not necessarily a clear indication of whether the electorate have agreed to a growth in the role of government. What is important is the way in which the referendum is worded. It is diffi cult on so few issues to draw definitive conclusions, but it should be noted that on occasions the issues were the creation of new departments or commissions or the appointment of heads of these. Four times the electorate voted against these proposals. The voters rejected, for example, the creation of a State Timber Resources Board in Washington and a Hydroelectric Commission in Oregon. In these and other cases it can be said that the electorate was against any extension in governmental powers.
'V. O. Key and W. W. Crouch. The Initiative and Referendum in California. Berkeley University of California Press 1939.
Redistricting was considered on four occasions and accepted only oncein North Dakota in 1960. Inasmuch as American state legislatures are already biased in favour of rural areas in their apportionment, it is perhaps not surprising that such electorates rejected reform which would downgrade their influence. Four referendum issues related to the judiciary. In two cases the method of selecting judges was not considered satisfactory. In Oklahoma in 1964 the electorate would not approve the selection of judges by election rather than appointment by the Governor; it was perhaps felt that election would make judges more political. But on other occasions when the electorate was asked to vote on issues extending its own role in the political process, it always voted for extension. For example, in the case of referenda held to decide whether or not presidential primaries should be instituted, or liberalizing the residence requirements for voting in elections the electorate always supported such measures.
In the machinery-of-government category, North Dakota held the most petition referenda, this time on five occasions. In Oklahoma and Washington petition referenda were conducted four times.
Although governments are providing a wider range of services than formerly, mounting taxation to finance these services met usually with resentment by the electorate. American states between 1945 and 1968 conducted twenty-three petition referenda over taxation questions. This is not a large number, however it does mean that all those states which sent evidence of issues, except those in which money bills are excluded from referenda must have had a major fiscal or revenue bill considered by the electorate at some time or another. The importance of this is further realised when it is seen that on 15 of the 23 reported referenda the proposal usually for increased taxation was rejected. On 18 occasions the vote resulted in a rejection of proposals for increased taxation or for more efficient ways of collecting taxes. North Dakota has used the petition referendum for fiscal purposes nine times. The totals for the other states are: Idaho 1, Maine 1, Maryland o, Montana o, Nebraska 1, Nevada 1, Oklahoma 1, Oregon 6, Washington 1. North Dakota rejected an income tax proposal in 1963 and a gasoline tax in 1950. Voters in Oregon rejected taxes on cigarettes on three occasions and turned down three other acts increasing taxation. In Nebraska in 1966 an income tax bill was rejected. The voters of Washington rejected an inheritance tax on insurance proceedings. In Maine the electorate voted against increased registration fees for motor vehicles. In Oklahoma the voters defeated a measure intended to withhold income taxes from employees by employers. Only in Nevada and Idaho did the voters agree to new taxes. These were both sales taxes.
Thus it can be seen that the petition referendum is often used to veto increased taxation. But why so many times in North Dakota and Oregon? An important factor undoubtedly is that there are fewer formal limitations on the use of the petition referendum in these states as compared with many of the others.
In the General Economic category ten issues were considered over the twenty-three year period. This works out at one issue per state during the