Voters will head to the ballot box tomorrow, and, depending on the state, might encounter questions beyond who to vote for in statewide or local elections. This form of direct democracy — often referred to universally as ballot measures — comes in different flavors, and the purpose of this blog post is to provide an overview of each procedure and how they differ by state.
The initiative, referendum, and recall powers allow voters in some states to take direct action to enact statutes, constitutional amendments, or remove elected officials from office.
The history of direct democracy is the United States primarily dates back to the progressive era. In 1898, South Dakota became the first state to authorize its citizens to use the popular referendum process to repeal specific statutes that the state legislature passed. Over the next 20 years, nearly half the states amended their constitutions to allow voter-led initiative, referendum, and/or recall processes. These tools of direct democracy — allowing citizens to have a direct say in public policy in the state as opposed to relying on their elected officials under the republican system — were a response to corruption scandals rampant in state legislatures of the era. Today, these systems remain a core part of the state public policy system, with 154 measures appearing on statewide ballots in 2016.
A direct initiative (often referred to simply as an “initiative”) is a process in 19 states by which citizens can bypass state legislatures to place proposed statutes (in 14 states) or constitutional amendments (in 16 states) directly on the ballot for voter approval.
While direct initiatives, as the name implies, go directly to the ballot after approval, indirect initiatives must go to the legislature first to give lawmakers a chance to take action before the proposal is placed on the ballot. There are nine states that require proposed statutes to go to the legislature first, but only two states (Massachusetts and Mississippi) require indirect initiatives for constitutional amendments. Alaska and Wyoming will not place an initiative on the ballot until after the state legislature has convened and adjourned. If the legislature enacts legislation substantially similar to the proposed initiative, the initiative petition is void. Although the initiative is not officially submitted to the legislature in Alaska and Wyoming, we consider the statutory initiative process indirect in these two states for the purposes of the chart below.
A popular referendum is a process in 23 states by which citizens can place a measure on the ballot that will repeal specific statutes that the legislature passed. The popular referendum is alternately called the veto referendum, citizen referendum, statute referendum, or statute remand.
The legislative referendum (also known as “legislatively-referred” state statutes or constitutional amendments) is a process where the state legislature places a proposed statute (in 23 states) or constitutional amendment (in 49 states, with Delaware as the sole exception) on the ballot for voters to approve. In many states, legislatures are required to ask the voters for approval on issues including constitutional amendments and bond measures.
The advisory referendum (alternately called an advisory question) is a rarely used ballot measure that allows some states and localities to place a non-binding question on the ballot to receive voters' opinions. Non-binding advisory questions are not listed on the chart below.
Finally, Nevada is the only state that uses a process called statute affirmation that allows citizens to place a measure on the ballot asking voters to affirm a current law. If a majority of voters affirm the law, then the state legislature loses its ability to amend or repeal that law and that responsibility is left to the voters via the initiative process.
The recall is a process in 20 states that allows citizens to remove elected officials from office before that official’s term has expired. In most recall states, citizens need not provide any specific ground for recalling the official and the question of whether to remove the official from office is placed on the ballot for voters to decide. If voters approve the ballot measure to recall the official, an election is held to replace the official.
In 2010, after the state’s two most recent governors were convicted of felonies, voters in Illinois approved a legislatively-referred constitutional amendment setting up a limited procedure to recall the governor. Before a petition to recall the governor may commence in Illinois, 20 state representatives and 10 state senators must sign a notice of intent to recall the governor. To avoid partisan attacks, the legislators signing the notice must equally represent members of two established political parties.
Unlike most other recall states, Virginia requires specific grounds for recalling elected officials. After citizens vote to recall an official, the Virginia Circuit Courts will hold a trial to decide if the official had a “material adverse effect upon the conduct of the office."
Local Direct Democracy
States hold substantial control over the independent actions of localities within its borders. However, a substantial number of states have authorized localities to practice initiative, referendum, and recall powers. These powers range from broad to extremely narrow (e.g., some states grant cities the power to use initiatives on a limited city by city basis).