The History of the Initiative and Referendum Process in the United States
Setting the Foundation for Initiative and Referendum
Initiative and referendum (I&R) has existed in some form in this country since the 1600s. Citizens of New England placed ordinances and other issues on the agenda for discussion and then a vote utilizing town meetings. These town hall meetings established the precedent which lead to the creation of the legislative referendum process – a process in which the citizens were entrusted with ratifying laws and amendments proposed by their elected officials.
Thomas Jefferson was the first of our founding fathers to propose legislative referendum when he advocated it for the 1775 Virginia state constitution. However, he was attending the Continental Congress and was unable to be present to make certain that this requirement was added to his own state’s constitution. His strong support for establishing the process was based on his belief that the people are sovereign and should be the ones to agree to and approve any change to the one document, the constitution, that dictated the laws in which they would have to live by. However, James Madison said it best in Federalist 49 when he stated: "[a]s the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory to recur to the same original authority... whenever it may be necessary to enlarge, diminish, or new-model the powers of government."
In 1776, Georgia delegates gathered in Savannah to draft a new constitution. One of the changes that was made was a requirement that the new constitution could only be amended when petitions signed by a majority of voters in each county called for a convention. Though the process was never used and ultimately deleted from the constitution it was the first state to establish a process that recognized the true sovereignty of the people in controlling their constitution.
The first state to hold a statewide legislative referendum for its citizens to ratify its constitution was Massachusetts in 1778. New Hampshire followed in 1792. The next state to require voter approval of a state constitution and any constitutional change was Connecticut in 1818, then Maine in 1819, New York in 1820, and Rhode Island in 1824. The U.S. Congress subsequently made legislative referendum for constitutional changes mandatory for all new states entering the union after 1857. Today, every state has the legislative referendum process. The process is not required for constitutional amendments in Delaware.
However, even with advent of legislative referendum, the people began to realize in the late 1800s that they had no direct ability to reign in an out of touch government or government paralyzed by inaction and that something needed to be done to increase their check on representative government.
The Populist and Progressive Era
The 1890s and early 1900s saw the establishment of the Populist and Progressive movements. Both were based on the people’s dissatisfaction with government and its inability to deal effectively in addressing the problems of the day. The supporters of both these movements had become especially outraged that moneyed special interest groups controlled government, and that the people had no ability to break this control. They soon began to propose 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.
The cornerstone of their reform package was the establishment of the initiative process for they knew that without it many of the reforms they wanted – that were being blocked by state legislatures – would not be possible.
Their support for the process was based on a theory of trusting the individual and not as a method of destroying representative government – but to enhance it. They believed that our founding fathers at the federal and state levels had done a tremendous job in creating constitutions that established the criteria in which our daily lives should be governed. However, they knew that these constitutions were based on compromise and not documents that should be subject to permanent enshrinement. The founding fathers realized this as well and placed in every state constitution and the federal constitution a provision for its revision. The Populists/Progressives took advantage of these methods of amending state constitutions and began the arduous journey of pushing state legislators to add an amendment allowing for the initiative and popular referendum process.
Their efforts soon began to pay off. In 1897, Nebraska became the first state to allow cities to place initiative and referendum in their charters. One year later, the citizens of South Dakota, led by Father Robert W. Haire, copied initiative and referendum provisions from the 1848 Swiss Constitution and successfully amended them into the South Dakota Constitution. On November 5, 1898, South Dakota became the first state to adopt the statewide initiative and popular referendum process. Utah followed in 1900 and Oregon voters approved their initiative and referendum amendment by an 11-to-1 margin in 1902. Other states soon followed. In 1906 Montana voters approved an initiative and popular referendum amendment proposed by the state legislature. Oklahoma became the first state to provide for the initiative and popular referendum in its original constitution in 1907. Maine and Michigan passed initiative and popular referendum amendments in 1908.
In 1911 California placed initiative and popular referendum in their constitution. Other states were to follow – but even with popular support in many states, the elected class refused the will of the people and did not enact this popular reform. In Texas, for example, the people actually had the opportunity to vote for initiative and popular referendum in 1914, but voted it down because the amendment proposed by the legislature would have required that signatures be gathered from 20% of the registered voters in the state – a number twice as large as what was required in any other state. The proponents for initiative and popular referendum felt it was more important to get a useable process than one that would have maintained the status quo and provided no benefit to the citizenry.
According to David Schmidt, author of Citizen Lawmakers (the most comprehensive study on I&R available to date); “In states where I&R activists were unable to gain passage of statewide I&R amendments, they achieved numerous successes at the local level. In 1898, Alfred D. Cridge led a successful drive to incorporate I&R provisions into the city charter of San Francisco; John Randolph Haynes concluded a similar drive in Los Angeles in 1903; Grand Rapids, Michigan followed in 1905; Des Moines, Iowa in 1906; Cedar Rapids, Iowa and Wilmington, Delaware in 1907.”
Eventually, between 1898 and 1918, 24 states and numerous cities had adopted initiative or popular referendum – mostly in the West.
The expansion of initiative and popular referendum in the West fit more with the Westerners belief of populism – that the people should rule the elected and not allow the elected to rule the people. Unfortunately in the East and South this was not the case. Those that were in power were opposed to the expansion of initiative and popular referendum because they were concerned that blacks and immigrants would use the process to enact reforms that were not consistent with the beliefs of the ruling class. This was exemplified by a 1911 article in the national I&R movement’s newsletter Equity in which it was reported that, “many conscientious Southerners oppose direct legislation (I&R) because they fear that this process of government would increase the power of the negro, and therefore increase the danger of negro domination.” As to the East Coast states, this racism was exemplified by Massachusetts political leaders who “fear[ed] initiatives [that] could be passed over their objections by Irish-Catholic voting blocs.”
By 1915, the push for establishing the initiative process began to wane due to “a developing conviction that German militarism might be a danger to the U.S.” which “was generating a crusade for pure, undiluted Americanism – and as usual, patriotism came to be identified with defense of the status quo rather than its alteration.” It took 40 years before another state would adopt the initiative process.
The Modern Day Movement
In 1959, Alaska was allowed admittance into the Union with initiative and popular referendum in their founding constitution. In 1968, Wyoming voters adopted the process and in 1972 Floridians adopted the statewide initiative process. Mississippians in 1992 restored the initiative process to their constitution, 70 years after the state supreme court had invalidated the election that had established it. Mississippi became the newest and last state to get this valuable tool.
The battle to expand the initiative process is still being waged. But a new front has been opened – the battle to keep the initiative process from being taken away in the states where it exists. However, the factor that causes hesitation among legislators to expand the process is the same reason being used by lawmakers to call for its extinction – how the process has been used.
Initiative Usage
There is little doubt that in recent years the initiative process has become one of the most important mechanisms for altering and influencing public policy at the local, state and even national level. In the last decade alone, utilizing the initiative process, citizens were heard on affirmative action, educational reform, term limits, tax reform, campaign finance reform, drug policy reform and the environment.
The modern day movement to utilize the initiative process can be said to have begun in 1978 in California with the passage of Proposition 13 that cut property taxes from 2.5 percent of market value to just 1 percent. After Proposition 13 passed in California, similar measures were adopted through the initiative process in Michigan and Massachusetts. Within two years, 43 states had implemented some form of property tax limitation or relief and 15 states lowered their income tax rates.
A report from the National Taxpayers Union makes the case that the tax revolt that began with Proposition 13 in the 1970s would never have occurred without the initiative process. The study’s author, Pete Sepp, stated: “with I&R, citizens have created an innovative, effective array of procedural restraints on the growth of state and local government that have even awakened the federal political establishment. Without I&R, citizens almost certainly would be laboring under a more oppressive and unaccountable fiscal regime than they do today…. As initiative and referendum enters its second century of use in the United States, citizens should embrace and nurture this invaluable process. It has transformed the ‘Tax Revolt’ from a passing fancy to a permanent fixture in American politics.”
The citizens, utilizing the initiative process have brought about some of the most fundamental and controversial public policy decisions affecting our daily lives.
Clearly, reforms have been enacted that represent different ideologies - conservative, liberal, libertarian, and populist agendas. This typifies the initiative process – individuals of all different political persuasions use it. Furthermore, because of the diversity of issues that have been placed on the ballot, voters in states with an initiative on the ballot have been more likely to go to the polls than voters in states without an initiative on the ballot. In election after election, no matter what election cycle is analyzed, voter turnout in states with an initiative on the ballot has been usually 3% to 8% higher than in states without an initiative on the ballot. In 1998 voters in the 16 states with an initiative on the ballot went to the polls at a rate of almost 3% greater than voters in the states without an initiative on the ballot. This can be attributed to the fact the people believe that their vote can make a difference when voting on initiatives. They realize that when they vote for an initiative, they get what they voted for. They get term limits, tax limits, and educational or environmental reform. That is the key distinction between voting on an initiative and voting for a candidate. With a candidate there are no guarantees – you can only hope that the candidate delivers on his or her promises.
Since the first statewide initiative appeared on Oregon’s ballot in 1904, citizens in the 26 states with the initiative and referendum process have placed approximately 2,978 statewide initiatives or referendums on the ballot and have only adopted 1,201 (40%). Even though 26 states have the statewide initiative process, 58% of all initiative activity has taken place in just six states – Arizona, California, Colorado, North Dakota, Oregon and Washington State.
Additionally, it is important to point out that very few initiatives actually make it to the ballot. In California prior to 2000, according to political scientist Dave McCuan, only 26% of all initiatives filed had made it to the ballot and only 8% of those filed actually were adopted by the voters. During the 2000 election cycle, over 350 initiatives were filed in the 26 initiative states and 83 made the ballot – about 23%. During the 2016 election cycle, around 1,069 initiatives and referendums were filed and 76 made the ballot – about 7%.
The initiative process has been through periods of tremendous use as well as periods in which it was rarely utilized. Initiative usage steadily declined from 394 in 1911-1920 to a low of 133 in 1951-1960. Many factors contributed to this, but the distraction of two World Wars, the Great Depression and the Korean War are largely responsible.
However, in 1978, with the passage of California’s Proposition 13, the people began to realize the power of the initiative process once again and its use began to climb. Since 1978, three of the five most prolific decades of initiative use have occurred, 1981-90 (294 initiatives), 1991- 2000 (423 initiatives), and 2001-2010 (368 initiatives).
In 1996, considered by scholars to be the “high water mark” for the use of the initiative process, the citizens placed 99 initiatives and referendums on statewide ballots and adopted 44 (44%). In contrast, that year, state legislators in those same 24 states adopted over 14,000 laws and resolutions. The only year with more citizen-initiated measures was 1914, when citizens placed 115 initiatives and referendums on the ballot and adopted 31 (27%).
Since 1996, the number of initiatives actually making the ballot is remaining constant if not falling. In 1998, only 68 statewide initiatives actually made the ballot - the lowest in a decade. In 2000 a total of 83 initiatives found their way to statewide ballots, though more than 1998, it is 16 less than appeared on the 1996 ballot and is 4 higher than the decade average of 79 initiatives per even-year election cycle. These numbers do not support the accusation that there has been a “drastic” increase in initiative usage from 1991 through 2000.
In 2001 there were only four initiatives on statewide ballots. This number is actually two fewer than the number of initiatives that appeared on the 1991 general election ballot. The reason for the low number in odd numbered election years is that the constitutions of only five states allow initiatives in the odd years – Colorado, Maine, Mississippi, Ohio, and Washington State.
Between 2002 and 2016, the number of initiatives and referendums on even-year election ballots fluctuated between 40 in 2014 and 83 in 2006. The number of initiatives and referendums on odd-year election ballots fluctuated between 2 in 2013 and 19 in 2005. In 2016, there were 75 initiatives and referendums on state ballots.
The Future of the Initiative Process in the United States
Whether or not the trend of decreasing numbers of initiatives making the ballot will continue is hard to predict. The history of the initiative process has shown that there are high use periods as well as low use periods. One thing that is for certain – if state lawmakers continue to put more restrictions on the people’s ability to utilize the initiative process there is no doubt that fewer initiatives will be making the ballot. However, there is no doubt that in the upcoming election cycles, there will be numerous initiatives on the ballot that will have a tremendous impact on our daily lives. These initiatives will be derived from the brains of activists of all political persuasions, including those who wish to diminish the size of government and those who wish to increase it. The impact on state governments will be substantial. Whether the impact is positive or negative will be entirely up to the individual observer. If history is any indicator, there is no doubt that the fiscal and social implications will be far-reaching.
But it is hard to predict what will happen with the future of the initiative process itself. The expansion of the process seems to be an uphill battle. Due to the reforms that the citizens have been successful in promoting through the initiative process – reforms that have limited the power of government – legislators in states without I&R have been hostile to advocating it and unfortunately its expansion can only occur by legislators giving it to the people. This in itself is a perfect example of why we need I&R.