by Jennie Bowser
The tug-of-war between legislatures and initiative activists over the rules governing the initiative process has escalated dramatically since the 2006 election. Legislatures in the 24 initiative states have shown a keen interest in the process ever since the use of the initiative skyrocketed in the 1990s, but recent legislative activity has been higher than ever before. Double the number of bills addressing the initiative process were passed in the 2007-2008 biennium (a total of 50) compared to the previous two biennia (24 in 2005-2006 and 26 in 2003-2004).
Why the heightened interest? The number of initiatives removed from the ballot as a result of fraud in the signature-gathering process in 2006--at least half a dozen--has a lot to do with it. A court in Montana wrote that the “…signature-gathering process was permeated by a pervasive and general pattern and practice of deceit, fraud, and procedural non-compliance perpetuated by paid, out-of-state, migrant signature gatherers." There was similarly strong language in opinions in Nevada and Oklahoma court decisions.
Much of the legislative action in the last two years has addressed these sorts of problems. New laws include prohibitions on paying signature gatherers on a per-signature basis (thus removing an incentive to forge signatures or obtain them fraudulently in order to boost a circulator's earnings), and requirements that circulators offer people a chance to read a proposal before signing the petition.
In other cases, new laws are aimed at tightening the process and specifying details, with a view toward the idea that the use of the initiative has perhaps outgrown the sometimes century-old laws that govern it. For instance, states have clarified rules for petition formats, restructured timelines to allow time for the added administrative burdens of processing a high volume of petitions, and more clearly spelled out procedures for counting signatures.
Initiative activists are rarely happy when the legislature enacts changes that add to the cost or complexity of the initiative process, and in some states, they're fighting back. In 2006, Colorado voters rejected Amendment 38, an initiative that would have significantly eased regulation of the initiative process. And petitions on the initiative process were circulated but failed to qualify this year in Arizona, Massachusetts, Oregon and Washington. In all four states, the proposals either scaled back regulation of the process, or repealed specific changes the legislature had made to the process over the past two years.
This year, Colorado voters will consider an important ballot measure on the initiative process. Referendum O, referred to the ballot by the Colorado General Assembly, seeks to provide incentives to initiative sponsors to propose their idea as a statute, rather than as a constitutional amendment. It makes the process for qualifying a constitutional amendment slightly more difficult, but compensates for that by making the process for qualifying a statutory initiative easier and restricting the legislature's ability to amend or repeal any law passed by initiative. This year, Colorado has more measures on the ballot than in any other year besides 1912. There are 18 measures this year, 14 of them initiatives (and 10 of the 14 would amend the constitution). In 1912, the first year Colorado had the initiative process, there were 32 statewide questions, 20 of them initiatives.
For more information on what's on statewide ballots this year, visit NCSL's StateVote 2008 page.
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