We the People: A Needed Reform of State Initiative and Referendum Procedures
Theodore, Nicholas R., Missouri Law Review
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.
II. HISTORICAL BACKGROUND OF BALLOT INITIATIVES AND REFERENDA
A. 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. …