Initiative, Referendum and Recall Explained in Ten Straight Answers

Your neighbor swears he voted on "the referendum" last November. Did he vote on a law written by citizens, a law passed by the legislature that voters got to veto, or a question the legislature simply put in front of him? If you said "depends on the state," you're a better civics student than most elected officials.

The trouble is that three different tools get tossed together under the heading "direct democracy," and the differences matter if you want to use them, defend them or beat them in your state. Below are the questions I'd ask if I were new to this, answered in plain language. I have not counted states anywhere, because the list changes, and your own state's rules are what count.

The three tools, one at a time

1. What is an initiative?

An initiative is a way for citizens to propose a law, or an amendment to the state constitution, and put it to a vote without the legislature's permission. You write the text, collect a required number of valid signatures on a petition, and if the signatures check out and the measure clears any legal review, it goes on the ballot. If a majority votes yes, it becomes law or part of the constitution.

Some states have only the initiative for statutes, some only for constitutional amendments, and some have both. Some states have no initiative at all. The federal government has none either, which is a point worth remembering whenever someone says "let's just put it on the ballot" about a national question.

2. What is a referendum, and how is it different?

A referendum is a vote on a law that already exists or that the legislature has already passed. The word is used loosely, so it helps to separate two kinds.

In a citizen referendum (also called a veto referendum or people's veto), citizens collect signatures to ask voters to approve or reject a law the legislature passed. If enough valid signatures are filed in time, the law is usually put on hold until the vote, and if voters reject it, it is repealed.

In a legislative referral, the legislature itself places a question on the ballot. That is how most constitutional amendments reach voters, and it is also how some tax and bond questions get there.

Short version: an initiative starts with citizens and creates something new. A referendum looks at something the legislature did and asks voters to say yes or no.

3. What is a recall?

A recall is a petition process that lets voters remove an elected official before the term ends, or put the official's seat up for a special election. The details vary: some states recall only state officials, some also local ones, some require a stated reason, and some do not. The signature requirement is typically set as a share of the votes cast in the last election for that office.

Recall has a short list of famous uses. In 2003, California voters recalled Governor Gray Davis and elected Arnold Schwarzenegger. In 2012, Wisconsin voters recalled nobody: they were asked to remove Governor Scott Walker and declined. For that story, see Wisconsin's Act 10 Fight From the Capitol Crowds to the Recall Vote.

The machinery behind them

Now the nuts and bolts, which is where campaigns live or die.

4. What is the difference between a direct and an indirect initiative?

In a direct initiative, a successful petition sends the measure straight to the ballot. In an indirect initiative, the petition goes first to the legislature, which gets a chance to pass the proposal, amend it or offer a competing version. If the legislature does not act to the petitioners' satisfaction, the measure then goes to voters.

For conservatives, the indirect version has a certain charm. It gives the legislature a chance to fix a bad idea, and it gives petitioners a way to make the legislature act. Whether that is a feature or a loophole depends on whether you trust your legislature.

5. How do the signature requirements work?

Every state with the tools sets its own threshold, and the measure is usually a percentage of something: the votes cast in the last election for governor, the total of registered voters, or a stated number. Many states also add a geographic distribution rule, meaning signatures must come from a minimum number of counties or districts, so a measure cannot qualify on the strength of one big city alone.

There is also a gap between signatures gathered and signatures that count. A petition signer must be a registered voter in the right jurisdiction, must sign once, and must be readable and matched to a voter record. Some signatures fail. Campaigns plan accordingly, and for a worked example of that arithmetic and the deadlines, see How a Citizen Initiative Gets on the Ballot, Signature by Signature. The actual percentage, deadline and wording for your state are in your state constitution and election code, and your secretary of state's office will have a handbook. The National Conference of State Legislatures keeps summaries too, but verify anything you read against the text of your own state's law, and see initiatives, referendums and amendments, how ballot measures really work for the wider picture.

6. How many signatures should a campaign actually collect?

More than the number on the page. Here is a labelled hypothetical, with the arithmetic shown. Suppose a made-up state requires 80,000 valid signatures. A campaign's experience, or a lawyer's estimate, suggests that 80 percent of the signatures it gathers will survive verification, because some signers will turn out to be unregistered, some will sign twice and some handwriting will not match. To end up with 80,000 valid signatures, the campaign needs 80,000 divided by 0.80, which is 100,000 raw signatures. A campaign that gathers exactly 80,000 and cheers is a campaign that will lose in the clerk's office. Real validity rates differ from place to place and campaign to campaign, so treat the 80 percent as a teaching number and not a forecast.

7. What stops an initiative from being a mess?

Most states with the tools add guardrails. The most common is the single-subject rule, which requires a measure to deal with one topic so that voters are not forced to swallow an unpopular provision to get a popular one. Many states require an official ballot title and summary, reviewed by the attorney general or a similar official, so the language voters see is fair. Others require a fiscal estimate and a public hearing. And in most states, courts can review a measure before the election for procedural defects or, afterward, for constitutional ones.

8. Can the legislature change an initiative after it passes?

That depends on the state, and the answer is one of the most important facts to learn before you launch a campaign. In some states the legislature can amend or repeal a voter-passed statute at will. In others, it can do so only after a waiting period, or only by a supermajority. An initiative that amends the constitution is much harder for a legislature to touch. If you care about durability, find out your state's rule first.

Where the idea came from, and whether it is legal

A little history, because it explains why the tools look the way they do.

9. Where did all this come from?

The Progressive Era, roughly the 1890s through the 1910s. The reformers were reacting to a real problem: in many states, party bosses and wealthy interests, railroads in particular, had a grip on the legislature. Voters felt shut out. The Progressives proposed a way around the gatekeepers: let the people write laws, veto laws and fire officials themselves.

South Dakota adopted the initiative and referendum in 1898, the first state to do so. Oregon followed in 1902, and its package of tools, which also included a recall added in 1908, became known as the Oregon System and was copied around the West and Midwest. Los Angeles had the first recall in the country, at the city level, in 1903.

Here is a fact conservatives are sometimes surprised to learn. The Progressives were not conservatives, and their philosophy, that popular majorities should be able to bypass representative institutions, is not one the Founders held. Yet the tools they built have been used most effectively in recent decades by the taxpayer revolt and the term-limits movement.

10. Is direct democracy constitutional?

Yes, as far as the federal courts have been willing to say. The Constitution guarantees every state "a republican form of government" in Article IV, Section 4, and opponents of the initiative argued in the early twentieth century that a government in which citizens write laws is not republican. The Supreme Court brushed the argument aside in Pacific States Telephone and Telegraph Co. v. Oregon in 1912, holding that the question was political and not one for the courts to settle. So the tools stand, and the details are matters of state constitutions.

The missing national version

11. Is there an initiative or referendum for federal laws?

No. Congress writes federal law, the President signs or vetoes it and the courts review it. Ordinary citizens cannot petition a national measure onto a federal ballot. The nearest thing is the amendment process in Article V of the Constitution, which runs through Congress and the states and not through a national petition. So when a politician in Washington says "let the people decide," ask him which people, through which procedure, because the Constitution does not provide one. The wisdom of that design is the subject of A Walkthrough of the Constitution You Can Finish in One Evening.

Should a conservative like direct democracy?

Reasonable conservatives land in different places, so here are both cases at full strength.

12. What is the conservative case for direct democracy?

Here is the best version of it.

One, representatives sometimes will not act against their own interests. Term limits are the textbook example: it is hard to imagine a legislature voting itself out of a career, and in practice term limits for state legislators have come mostly from the initiative.

Two, the tax revolt. California's Proposition 13, passed by initiative in 1978, capped property taxes and set off a national wave. See Proposition 13 and the Tax Revolt That Rattled Every Statehouse. Voters directly restrained a government that had no incentive to restrain itself.

Three, a legislature that knows voters can overrule it behaves differently. Even in states where the tools are rarely used, the threat of a petition shapes the debate.

Four, it embodies a principle that sits close to the heart of the movement: the people, and not the permanent political class, hold the final authority.

13. What is the conservative case against it?

Here is the strongest version, and it deserves respect.

One, the Founders designed a republic, not a pure democracy, partly to guard against the passions of a temporary majority. Madison made that argument in Federalist 10 and Federalist 51, and I recommend Madison's Plan for a Government That Fights Itself on Purpose for the second.

Two, ballot measures are blunt. A legislature can amend, compromise, hold hearings and fix a typo. A ballot measure is a take-it-or-leave-it package, often hundreds of words of legalese, and an error written into a constitutional amendment stays there until the next election cycle can repair it.

Three, money matters. Professional signature gatherers and large campaign budgets can push a measure onto the ballot, and the label on the measure may be more appealing than the text beneath it. Well-funded interests on both the left and the right have used the process.

Four, minority rights. A measure can pass with a bare majority that wants to impose a burden on a smaller group, and the usual protections of the legislative process do not apply.

Five, durability cuts both ways. A reform locked in by the voters is protected from the legislature, but so is a mistake.

I think both lists are right. A conservative need not be for or against direct democracy as a matter of principle. He should be for it where it checks an entrenched legislature and against it where it bypasses the deliberate process that protects minorities.

The bottom line

• An initiative lets citizens write a law, a referendum lets voters approve or reject a law the legislature passed, and a recall lets voters remove an official. They are three tools, not one.
• They came from the Progressive Era, starting with South Dakota in 1898 and Oregon's system a few years later, and conservatives have used them well, especially for tax limits and term limits.
• Use them where they check a legislature that will not check itself, and be wary where they replace deliberation with a package that cannot be amended.
• Before you sign a petition or start one, read your state's rules in its constitution, election code and your secretary of state's guide. The requirements differ, and procedure kills more efforts than opposition does.
• Ask who wrote the ballot language, who is paying for the signatures and whether the measure fixes the problem or only names it.