Nevada-California Initiative Comparison
A Comparison
of the California
|
|
Table of Contents
I. Introduction |
I. Introduction
What are initiatives? Ballot initiatives are a means of passing law that circumvents state legislatures by bringing to popular vote issues that did not or would not pass in the legislature. Initiatives are also brought when proponents determine it would be more expedient or cost effective to bypass the legislature. David Schauffler and Roy Morgan, History of Initiative & Referenda Process, at http://www.ballot.org/resources/history/html (1996) (last visited Aug. 26, 2002). Ballot initiatives are mostly associated with social, tax, and environmental issues. Id. Rapid industrialization, heavy immigration, and westward settlement during the 1880s created a political environment that favored wealthy and influential industrial, financial, and social interests. Id. Twenty-four states, predominately Western states, and the District of Columbia allow voter-petitioned initiatives. Id. Each state has its own initiative requirements, typically including circulation, qualification, and adoption.
Ballot initiatives were introduced in many Western states in the 1880s and 1890s to give the population a voice in an era of government mistrust. Id. Despite its initial popularity, the use of the initiative process declined substantially from the 1920s until the late 1960s when public disillusionment with the government caused the re-emergence of the initiative process. Id.
II. California Initiative Measure History
The California initiative process was established in 1911
as a response to the public's growing concern regarding the
influence of wealthy interests, such as the Southern Pacific
Railroad, over the Legislature. J. Fred Silva, The California
Initiative Process: Background and Perspective <http://ppic.org/publications/occasional.html>
(2002) (accessed Aug. 22, 2002). Originally, California had
both the direct and indirect initiative process. The direct
initiative process allows voters to place a proposed statute
or amendment to the Constitution directly on the ballot. Initiative
and Referendum Institute, I and R Factsheet <http://www.iandrinstitute.org/>
(accessed October 15, 2002). The indirect initiative process
allows proponents to gather signatures and present the measure
to the legislature for enactment. Id. If the measure
is enacted it becomes law and is not placed on a ballot for
popular vote. California repealed the indirect initiative
process in 1966. J. Fred Silva, The California Initiative
Process: Background and Perspective <http://ppic.org/publications/occasional.html>
(2002) (accessed Aug. 22, 2002).
After its initial peak in the 1930s, with approximately 75
measures circulated, 45 qualified, and 10 adopted, the numbers
waned to an all time low during the 1950s with approximately
15 circulated, 10 qualified, and even fewer adopted. Id.
The number of initiative measures began increasing in the
late 1960s and in the 1990s. Id. Approximately 375 circulated,
50 qualified, and half of the qualifying measures were adopted.
Id.
III. California Initiative Process
A. Authority for Initiative Measures
The initiative and referendum powers are contained in Article II of the California Constitution: "The initiative is the power of the electors to propose statutes and amendments to the constitution and to adopt or reject them." Cal. Const. art. II, § 8. Article II Section 8 sets forth the basic procedures for the initiative process: "An initiative measure may be proposed by presenting to the Secretary of State...." Id. The judiciary is limited to hearing challenges to proposed or approved initiatives. J. Fred Silva, The California Initiative Process: Background and Perspective, <http://ppic.org/publications/occasional.html> (2002) (accessed Aug. 22, 2002).
B. Steps of the Initiative Process
1. Writing the Law
Proponents of an initiative idea have two options for writing the text of the initiative measure: 1) they may obtain assistance from the Legislative Counsel, or 2) they may write the law themselves. If the proponents prefer assistance from the Legislative Counsel, they must present the idea to Legislative Counsel along with at least twenty-five elector signatures. If the Legislative Counsel decides the idea will likely be submitted to the voters, it will draft the initiative measure. Cal. Govt. Code § 10243 (West 1992). Alternatively, proponents may draft the initiative measure, or hire private counsel to draft the initiative measure.
2. Request for Title and Summary
After the initiative measure is drafted, proponents must submit it to the Attorney General. Cal. Elections Code § 9002 (West 1996 & Supp. 2002). The Attorney General prepares a title and official summary of the chief purpose and points of the initiative measure. Id. The Attorney General then forwards a final version of the measure to the Secretary of State. Id. at § 9004 (West 1996).
3. Circulation and Signing
Proponents are allowed 150 days to circulate petitions to collect signatures from registered voters. Id. at 336. For statutes, proponents must obtain five percent of the total votes cast at the last gubernatorial election. Cal. Const. art. II, § 8(b); Cal. Elections Code § 9035 (West 1996). For initiative measures on the November 2002 ballot, this number was 419, 260. Bill Jones, Secretary of State, Ballot Initiatives 2001-2002, 4. For Constitutional amendments proponents must obtain eight percent of the total votes cast at the last gubernatorial election. Cal. Const. art. II, § 8(b); Cal. Elections Code §' 9035 (West 1996). For initiative measures on the November 2002 ballot, this number was 670, 816. Bill Jones, Secretary of State, Ballot Initiatives 2001-2002, 5. Once the requisite number of signatures has been obtained, the circulators file the petitions with county election officials. Id. at 10. Only the initiative proponents and their authorized agents may file initiative petitions. Cal. Elections Code §§ 9032, 18671 (West 1996).
4. Verification, Qualification, and Approval
County election officials determine the total number of signatures on the petition sections filed in that county to determine the raw count of petition signatures. Id. at § 9030 (West 1996). If the raw count equals or exceeds the requisite number of signatures, the county elections officials verify the signatures through a random sample of three percent of the signatures filed or five hundred signatures, whichever is greater. Id. However, if the total number of valid signatures is less than ninety-five percent of the requisite number of signatures, the initiative measure will not qualify for the ballot. Id. at § 9030(f) (West 1996). Further, if the total number of valid signatures, determined by random sample, falls between ninety-five and one hundred and ten percent, the county elections officials must verify every signature on the petition. Id. at 9031 (West 1996). Conversely, if the total number of valid signatures is greater than one hundred and ten percent, then the measure qualifies with no further verification. Id. at §§ 9030(g), 9033 (West 1996). Finally, if the measure qualifies, the State Senate and Assembly assign the measure to its appropriate committee and hold mandatory joint public hearings on the measure, but Legislature cannot amend the measure. Id. § 9034 (West 1996).
The Nevada initiative process was established in 1912, and the first initiative to pass was a prohibition statute in 1918. David D. Schmidt, Citizen Lawmakers: The Ballot Initiative Revolution <http://iandrinstitute.org/asp/history?state=Nevada> (accessed Aug. 26, 2002). During the 1950s, a battle between employers and the labor unions resulted in an employer-driven initiative making it more difficult to put initiatives on the ballot and pass them. Id. The initiative measure passed, requiring that initiative proponents meet signature quotas in three-quarters of the state's counties. Id. The measure also requires that constitutional amendments be approved by voters twice before taking effect. Eighteen years passed before another initiative measure made it on the Nevada ballot. Id.
A. Authority for Initiative Measures
The initiative and referendum powers are contained in Article XIX of the Nevada Constitution: "[T]he people reserve to themselves the power to propose, by initiative petition, statutes and amendments to statutes and amendments to this constitution, and to enact or reject them at the polls." Nev. Const. art. XIX, § 2. The basic procedures for the Nevada initiative process are set forth in Article XIX sections 3 and 4, which are described below.
B. Steps of the Initiative Process
1. File Petition with the Secretary of State
Proponents of an initiative measure must file a copy of the petition with the Secretary of State before circulating the petition for signatures. Nev. Const. art. XIX, § 2(3). The Secretary of State then forwards the measure to the Legislature for enactment or disapproval. Id.
2. Circulation and Signatures
Circulators must obtain the requisite number of signatures based on the total votes cast in the last general election. Id. at § 2(2). For statutes, a petition must have signatures equaling a minimum of ten percent of the total votes cast at the last general election in at least thirteen out of the seventeen counties. Id. Petitions proposing a new state statute or amending an existing state statute may be circulated a total of ten months and must be submitted to the county clerk/registrar for certification at least thirty days prior to the election. Id. at § 2(3). Petitions proposing state constitutional amendments may be circulated for eleven months and must be submitted to the county clerk or registrar for certification at least ninety days prior to the election. Id. at § 2(4).
3. Verification, Qualification, and Approval
County clerks/registrars tally the total number of signatures (raw count) on the petition sections filed in that county and forward that number to the Secretary of State to determine whether the raw count equals or exceeds the number of signatures needed. Nev. Rev. Stat. § 293.1276. If the raw count equals or exceeds the requisite number of signatures, the county clerks/registrars verify the signatures through a random sample of five percent of the signatures filed or five hundred signatures, whichever is greater. Nev. Rev. Stat. § 293.1278. However, if the total number of valid signatures is less than ninety percent of the requisite number of signatures, the initiative measure will not qualify for the ballot. Id. Further, if the total number of valid signatures falls between ninety and one hundred percent, the county clerks/registrars must verify every signature on the petition. Id. at § 293.1279.
4. Post-Qualification
After a petition proposing a new statute or amending an existing statute qualifies for the ballot, the petition will be submitted to the Legislature. If the proposed statute or amendment is enacted by the Legislature and is approved by the Governor, then it becomes law. Nev. Const. art. XIX, § 3. If the statute or amendment to a statute is rejected by the Legislature, then the measure goes on the ballot for the next general election. Id. This is an example of the indirect initiative process mentioned above. See supra Part. II.
VI. Comparison of the California and the Nevada Initiative Processes
A. Direct v. Indirect Initiatives for Constitutional
Amendments and Statues
The Nevada Constitution authorizes direct initiatives for Constitutional amendments, but allows only indirect initiatives for statutes. Dean Heller, Secretary of State, Initiative & Referendum Guide 2002, <http://sos.state.nv.us/nvelection/int_ref/index.htm> (last updated Sept. 3, 2002). Conversely, since 1966, the California Constitution authorizes only direct initiatives for both constitutional amendments and statutes. J. Fred Silva, The California Initiative Process: Background and Perspective, <http://ppic.org/publications/occasional.html> (accessed Aug. 22, 2002) .
B. Constitutional Amendments
Another difference between the Nevada and California initiative processes is that Nevada initiative measures to amend the Constitution must be approved by a majority of the popular vote in two subsequent elections before being enacted. Dean Heller, Secretary of State, Initiative & Referendum Guide 2002, <http://sos.state.nv.us/nvelection/int_ref/index.htm> (last updated Sept. 3, 2002). California has no such requirement. If the Nevada initiative is approved in the initial election, the Secretary of State resubmits the measure for voter approval on the subsequent ballot. Nev. Const. art. XIX, § 2(4).
C. Signature Requirements
Both Nevada and California base the number of signatures required on a petition on the number of total votes cast in the previous statewide election. See supra Part II.B.3, V.B.2. However, Nevada requires the number of signatures to equal or exceed ten percent of the total votes cast in the previous election and California only requires five percent. See supra Part II.B.3, V.B.2. Further, Nevada has an additional requirement that the signatures come from at least thirteen of the seventeen counties in the state. See supra Part V.B.2.
D. Single subject Requirement
One of the most significant differences between the California and Nevada initiative process is the single subject requirement of California initiative measures. The California Constitution prohibits an initiative measure from encompassing more that one subject in the measure. Cal. Const. art. II, § 8(d). In 1999, the California Supreme Court invalidated Proposition 24 because it contained more than one subject. Senate v. Jones, 21 Cal. 4th 1142 (1999). In fact, the Court found that pre-election review was necessary to prevent an initiative encompassing more than one subject from appearing on the ballot. Id. at 1146. Article II, Section 8(d) provides that "[a]n initiative measure embracing more than one subject may not be submitted to the electors or have any effect." Thus, the Court found it necessary to review Proposition 24 before the election because there was a valid single subject rule challenge to the initiative. Id. Nevada has no such single subject requirement for initiatives.
E. What Types of Initiatives are Passing?
Initiatives regarding government regulation, environmental issues, health and medicine, and campaign reform are commonly circulated in both states. J. Fred Silva, The California Initiative Process: Background and Perspective, <http://ppic.org/publications/occasional.html> (accessed Aug. 22, 2002); Robert Erickson, Nevada State Library and Archives, <http://dmla.clan.lib.nv.us/docs/nsla/archives/political/question.htm> (accessed Sept. 28, 2002). However in both California and Nevada, initiatives regarding taxation hold the highest approval rate. J. Fred Silva, The California Initiative Process: Background and Perspective, <http://ppic.org/publications/occasional.html> (accessed Aug. 22, 2002); Robert Erickson, Nevada State Library and Archives, <http://dmla.clan.lib.nv.us/docs/nsla/archives/political/question.htm> (accessed Sept. 28, 2002). In California from 1912 to 2000, forty-five taxation initiative measures were submitted to the voters, and eleven of the measures were approved. J. Fred Silva, The California Initiative Process: Background and Perspective, <http://ppic.org/publications/occasional.html> (accessed Aug. 22, 2002). Similarly in Nevada from 1956 to 1994, 20 taxation initiative measures were submitted to the voters, and nine of the measures were approved. Robert Erickson, Nevada State Library and Archives, <http://dmla.clan.lib.nv.us/docs/nsla/archives/political/question.htm> (accessed Sept. 28, 2002).
Nevada's higher signature number requirements appear to make getting an initiative measure on the Nevada ballot more difficult than getting an initiative measure on California ballot. See supra Part II.B.3, V.B.2. However, Nevada's requirement that signatures come from most of the state's counties, instead of just several large counties like could happen in California, balances Nevada's lower signature percentage. See supra Part V.B.2. Further, California's single subject rule allows for pre-election judicial review of initiative measures and possible invalidation by the court. See supra Part V.D. Thus, statutes and amendments to statutes appear to have approximately the same chance of ending up on a ballot in either Nevada or California. Conversely, Nevada initiative constitutional amendments are harder to achieve because they must obtain voter approval in two subsequent elections. See supra Part VI.B. Thus, while statutes and statutory amendment initiative measures face approximately the same degree of difficulty in becoming California or Nevada law, constitutional amendment initiative measures face more difficulty in Nevada.