By Jennie Drage Bowser
First things first: let's get the terminology straight. The popular referendum is a rather unique type of ballot measure. It arrives on the ballot through a petition process, like initiatives do. Like initiatives, this process is available in a limited number of states--24 states have the initiative; 23 have the popular referendum. Most states that have one process also have the other, but the list doesn't match up exactly. Let's look at the two processes separately in order to sort out the differences:
- An initiative is a proposal for a new law or constitutional amendment. It's drafted by citizens, circulated for signatures, and eventually lands on the ballot if enough people sign the petition. If voters approve it, it becomes law or is added to the constitution. The legislature's approval is not necessary, and the governor does not have the ability to veto an initiative.
- A popular referendum is an opportunity for voters to veto something recently passed by the legislature. After the legislature passes something that somebody opposes, that person has an opportunity to mount a veto effort. Sometimes this effort is blocked by the use of an "emergency clause" in the legislation that causes it to take immediate effect. More often, there is a lag between the date the governor signs the bill and the date the new law actually takes effect. During this lag, opponents in 23 states can gather petition signatures to demand a popular vote on the bill. If enough petition signatures are gathered to land the bill on the ballot and voters approve it, the legislature's new law takes effect after the election. If voters reject it, it is vetoed and it does not take effect.
Unlike the initiative, the popular referendum is not an often-used device. Voters in some states seem to have forgotten its very existence, judging by how often they implement it. Here's a run-down of how many popular referenda we've seen on even-year general election ballots in recent elections:
|
Year |
PR on the Ballot |
|
1998 |
7 |
|
2000 |
2 |
|
2002 |
4 |
|
2004 |
2 |
|
2006 |
4 |
|
2008 |
2 |
|
2010 |
1 |
|
2012 |
12 |
|
AVERAGE |
4.25 |
And if you leave out 2012 and consider just the numbers for 1998 - 2010, the aveage number of popular referenda on the ballot in a single election drops to 3.1.
Given this historical context, it's easy to see how this year's number stands out. The 12 popular referenda on the ballot this year is more than double the average over eight even-year elections. To see a list of all 12, visit NCSL's Ballot Measures Database.
So why are there so many popular referenda this year? Simply put, it's the stark political polarization that currently divides American government and its electorate, playing out on the ballot. The new laws that are contested via the popular referendum often lean heavily toward one end of the political spectrum or the other. This year, there are examples from both ends of the spectrum:
- In Maryland and Washington, opponents of same-sex marriage are trying to block new laws legalizing that practice.
- In Montana, medical marijuana supporters want to reverse a legislative move that weakens that state's medical marijuana law.
- In Michigan, the controversial Emergency Manager Law, which allows the state to appoint a manager to take over struggling local governments, is on the ballot.
- In Idaho and South Dakota, teacher unions are pushing back against changes to teacher labor laws.
So a popular referendum, then, represents a tug back in the game of political tug-of-war. Conservatives tug by passing a law reducing the influence of teacher unions; teachers tug back by trying to overturn the law. Liberal lawmakers tug by legalizing same-sex marriage; conservatives tug back by trying to stop the law in its tracks.
Will this unusually high use of the popular referendum continue? That's a good question and one worth monitoring over the next few election cycles. If the partisan divide remains as deep as it is, then it is likely that we'll continue to see elevated use of the process. It is also possible that successful use of the popular referendum this year -- that is, if many of these campaigns succeed in their goal of vetoing a new law -- may serve as an example that will lead others to consider the process as a useful tool in their political toolbox in the future.
Whatever the future holds for this often-neglected process, its heavy use this year certainly provides an engaging case study of direct democracy in action.
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