Essential Elements of a Citizen-Friendly Initiative Process - by Mike Ford  Earlier versions of these points were published in  Campaigns & Elections magazine, the  National Taxpayers Union Capitol Ideas, and the Texas Public Policy Foundation quarterly, Veritas.

 

The Texas Constitution contains the words "All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit."  If these words are to have any substance, we need to implement a binding statewide initiative process.

Americans in 24 states enjoy the right of initiative on a statewide basis.  However, this is true only in a strict sense.  In some states, initiative rights are so limited, so difficult to use, and so subject to undermining by the branches of government that citizens cannot effectively use the process.  This raises the question: what elements make a statewide initiative usable?  Understanding this will enable Texans to work toward implementation of a usable initiative process.

This article does not attempt to frame the specific initiative amendment wording.  Instead, its purpose is to itemize the minimum essential elements of an effective statewide initiative process.  If any of the following 17 elements are missing, the implementation will be seriously flawed:

1.  The legislature derives its law-making powers from the people.  The amendment establishing an initiative process must provide the people with the power to propose and enact laws and resolutions that have the same force and effect as those enacted by the legislature.

2.  Except for amendments that would in any way reduce our unalienable rights such as those enumerated in the Bill of Rights, voters must have the power to propose and enact constitutional amendments.  More signatures should be required for amendment proposals than for statutory proposals; otherwise most initiatives would tend to be circulated as amendments.

3.  The information required on the petition should be limited to only that necessary for voter understanding and for signature verification -- that is, the initiative proposal summary, full text, voter name printed, voter signature, home address, city, zip code, and county.  Additional information is not necessary and unduly burdens the process of collecting signatures.

4.  The ballot title and summary for the initiative prepared by the appropriate government employee must be agreeable to the initiative proponent(s).  This is to minimize the natural tendency of government to undermine the initiative process.

5.  The number of signatures required should be substantial enough to demonstrate public interest, yet low enough to possibly be collectable by volunteers (e.g., 4 percent of the total voting for governor in the last gubernatorial race for proposed laws and 6 percent for proposed constitutional amendments).

6.  A two-year period for gathering signatures permits citizen groups lacking money to propose an initiative and have a prospect of actually collecting the signatures needed.  When signatures are turned in to the Secretary of State, more are usually unverifiable than anticipated.  The provision of an additional 60-day remedy period reduces the necessity to spend additional money to obtain tens of thousands of extra signatures "to be safe."  It also would reduces the amount of extra work for Secretary of State personnel, county clerks and local election workers.

7.  Once the Secretary of State has certified that the required number of voters signatures have been turned in, challenges to the initiative shall not deprive voters of the opportunity to vote on it.

8.  The establishment of petition turn-in deadlines at least five months prior to statewide general and primary elections to allows ample time for necessary public debate on the issue to take place.

9.  The Initiative title and summary wording that appears on the ballot should to be the same as the initiative title and summary wording on the petition.  This and the elements that follow minimize the tendencies of government to undermine the process.

10.  A proposal approved by the majority of those voting on the issue becomes binding within one year of passage (unless specified otherwise in the proposal).

11. The amendment establishing the initiative process must include a ‘self-executing’ clause to ensure that the Initiative process takes effect without any further action by the legislature.  In 1906, the people of Delaware overwhelmingly voted in favor of the initiative process, but the legislature never implemented it.  In Massachusetts, the legislature simply refuses to process initiatives approved by the voters that it does not like. 

12.  Changes to any Initiative approved by the voters must require approval by the voters.

13.  Proponents of initiatives must have legal standing to defend their proposals, both before and after enactment.  Such standing must include a direct expedited path to the state Supreme Court and reimbursement of legal costs.  All challenges to initiatives approved by the voters must be made within 12 months of such approval.

14.  Restricting initiative proposals to a single subject has long been viewed as a good idea.  However, recent interpretations by courts in Florida, Colorado and Oregon have narrowed the meaning of "single subject" beyond all recognition.  In Florida, the state Supreme Court ruled that a proposal to end racial preferences in public education, contracting and employment is a multiple subject (whereas identical measures in California and Washington passed judicial scrutiny.  In Colorado, the court ruled that voter approval for taxes is a multiple subject.  In Oregon, the court ruled that term limitation on the state officers and on the Oregon delegation to Congress is a multiple subject.  Unless a constitutional way to protect against this type of gross judicial abuse can be found, it may be necessary to consider abandoning the single subject requirement.

15.  Statewide initiatives are so difficult to place on the ballot that there is no need to limit how many can be on a ballot.  Any limitation on the number of initiatives on a ballot permits the process to be disproportionately controlled by the organized money interests.

16.  The health of our republic depends upon an informed and involved electorate.  For all elections where propositions are on the ballot, the Secretary of State must prepare and mail to every registered voter a voter pamphlet 30 days prior to election.  The pamphlet shall contain the complete wording of each initiative on the ballot, a summary of each initiative, and the arguments for and against and rebuttals thereto.

17.  After the Secretary of State declares the initiative proposal to have gathered sufficient signatures to be on the ballot, public disclosure of funding for and against the initiative should be reported completely and promptly.

An amendment that includes the above elements will be a citizen-friendly initiative process.  

John Talley of Longview, Texas summed it up well, "There are those occasions under our form of government when the interests of the represented and the interests of the representatives are at odds.  The Initiative is the means by which the represented assure that their interests ultimately prevail."