VII. PROBLEMS AND CONCLUSIONS.

General statement: In connection with the initiative and referendum several distinct problems present themselves:

(a) The drafting of the measure to be submitted under the initiative;

(b) The obtaining of initiative or referendum petitions;

(c) The submission of measures in such a manner that they may be acted upon intelligently by the voters, and

(d) The popular vote upon proposals.

Draftsmanship: It may of course be truly said that draftsmanship of laws enacted by representative legislatures is defective, and that the draftsmanship of initiated laws is not materially worse than much of the draftsmanship of laws enacted under the representative system. However this does not deny the need for more expert draftsmanship, but rather asserts the need for such draftsmanship as to representative legislative action as well as with reference to initiated measures, if the initiative is to be adopted.

The relationship between direct and indirect initiation of measures under existing constitutional provisions has already been discussed, and this discussion has a direct bearing upon the problem of draftsmanship of initiated measures. In the states which permit the legislative proposal of alternative measures, the two proposed measures then going to a vote of the people, there is of course no opportunity for improving the initiated measure, and there is an added complexity in the issue presented to the voters. In states where, as in Ohio and Massachusetts, there is an indirect initiative with a possibility of correcting a measure upon the basis of legislative deliberation, there is a possibility of improving the quality of the measure before it is finally submitted to the popular vote. This was also true under the rejected Wisconsin plan and under a possible combination of the Wisconsin plan with a suggested amendment which was rejected by the general assembly in Illinois in 1913.

Any plan which enables a small group of persons to force a vote upon a proposal without possibility of revision, is to that extent defective. Legislative deliberation upon a proposed draft of a measure is of value, and such deliberation is possible under the Ohio and Massachusetts plans. Under these plans of course there is a somewhat greater degree of delay in submitting measures to a popular vote, unless a special election is called, and special elections are of course expensive.

Petitions: As has already been suggested in the analysis of the initiative and referendum provisions, the size of petitions varies considerably in the several states. The obtaining of petitions is a matter of some difficulty and expense even though it be recognized that a large number of people sign petitions without very much thought. The obtaining of an 8 per cent petition for an initiative measure becomes of course more difficult the larger the number of voters. The granting of woman's suffrage in Oregon has probably had an appreciable effect. upon the number of initiative proposals. In a state like Illinois the difficulty becomes greater, and will be increased by the granting of woman's suffrage. Large petitions on the other hand do not necessarily represent a large sentiment in the community in favor of a

measure.

A small petition obtained under careful safeguards is likely to represent much more of an actual public sentiment than large petition obtained through the hiring of "professional signature getters". A plan such as that which is made optional in Washington, of leaving petitions with registration officers has distinct merit, alhough such a plan would materially increase the difficulty of obtaining a large petition.

In a number of states a certain geographical distribution of petitioners is required, and this seems desirable in order to make sure that the measure being petitioned for is not merely one sought by people in a particular community. However, the state of Illinois presents a problem somewhat different from that of almost all of the states which have adopted the initiative and the referendum, although Maryland and Massachusetts are perhaps most comparable. In the state of Illinois there is one county with very nearly half of the population of the state, and some method will have to be devised to make sure that initiative petitions represent not merely a sentiment within that county, and also that the initiative and referendum if adopted will not be employed to impose legislation upon that county by the rest of the state.

If an initiation is to be indirect, with a possibility of amending the proposal before its submission, upon the basis of legislative deliberation, there may be no great need for a large petition. In fact the need for a petition to present the measure to the legislature hardly exists at all, and if a plan of this sort be adopted, the petition may come after the legislative deliberation as in the case of the Ohio supplementary petition. In such a case a petition need not be large, if it may be employed only in the case where a proposed measure has received the support of a certain number of members of the general assembly.

Submission to the voters: The problems of ballot title and of arguments upon measures may properly be left to the legislature, although these are highly important matters from the standpoint of any effective operation of the initiative and the referendum.

Under the constitutional provisions of a number of states alternative and competing measures are expressly permitted, several states providing that alternative measures shall be submitted in such a way that the vote shall be in the alternative. The submission of directly competing measures, either by provisions for alternative measures or otherwise, is apt to lead to grave confusion in the minds of most intelligent voters, and this plan should be avoided if possible in the adoption of any initiative and referendum scheme.

A popular vote is of little value:

(1) if the questions submitted are so trivial or so local in character as not to be of interest to those to whom they are submitted. (2) if the questions are so complicated and technical that the voter has no satisfactory means of informing himself regarding them.

(3) If the questions are submitted in such great number that the voter, even if he might possibly render a satisfactory judgment upon any one of them, can not inform himself regarding the merits of all the measures upon which he must pass.

It has already been suggested that many constitutional amendments submitted to voters are local or trivial, and the same statement may be made of many laws or proposed laws submitted through the initiative and referendum. However, the legislative proposals submitted through the initiative and referendum have in the main related to matters of general interest. The publishing of arguments upon measures of course meets in part the problem of informing voters upon matters to be submitted to them, although it can hardly be said that the so-called publicity pamphlets have in any state fully and satisfactorily informed the voters upon all measures to be submitted.

If the initiative and referendum are to be adopted, however, it seems unwise to specify in detail matters to which they are not to be made applicable. This plan which has been adopted in Massachusetts seems less desirable than some plan of applying the initiative and referendum so that it will limit itself automatically to matters of distinct general interest.

Popular vote: As has been already suggested the more common provision in this country is that measures submitted to the people shall be adopted upon approval by a majority of those voting thereon. The experience of Colorado in the adoption of a number of important matters when less than 30 per cent of the voters expressed themselves either way, raises some doubt as to the validity of the plan of adopting merely upon the vote of the majority of those voting thereon. It is, of course, at the same time quite clear that to require a majority of those voting at a general election makes the institution substantially unworkable, no matter how great the popular interest may be, and this statement is particularly applicable with respect to the present constitutional provisions of Illinois regarding the amendment of the constitution.

A great deal has of course been said about the initiative and referendum as minority government, under any plan which provides for the adoption of a measure without a majority of the total vote at a general election. Of course it may be replied to this that very little of our government in the election of public officers is majority government. A plurality elects the highest state officers, as a plurality of the popular vote has often resulted in the election of a president. This statement applies to the heads of tickets who obtain the highest vote, the vote by which, generally, the highest vote in an election is measured, when a proposed measure requires for its adoption a majority of the total vote in the election. When examination is made of those offices which appear lower upon a ticket in a general election, it will often be found. that elections are determined by a plurality of the votes, and it will frequently be found that the total vote for such lesser officers is much less than that for the more important offices in the election. It is probably true that the majorities of many state legislatures are majorities elected not by a majority of the total vote at a general election, and it is sometimes true that the majorities in state legislatures may represent a very distinct minority of the total popular vote.

In view of this fact there is much plausibility in the statement that a total affirmative vote of 35 per cent such as is required in Nebraska for the adoption of popular measures, represents fully as much of a popular expression as does the voting upon candidates for the legislature.

However this may be, it is true that if the initiative and referendum are to be adopted, to require a majority of the highest vote cast in a general election in order to carry measures submitted to popular vote is to make such an institution substantially unworkable. If the initiative and referendum are to be adopted and are to be employed as instruments of government some other basis is likely to be taken. In this connection, reference should be made to the influence of the form of ballot upon popular voting on measures. A full discussion of this subject will be found in the pamphlet dealing with the subject of the amending article of the constitution. With a ballot such as that now used in Illinois, the requirement of a majority of those voting at a general election has the effect of counting in the negative all who do not vote on the question. However, it is possible to devise a ballot which will accomplish precisely the opposite result.

Emergency measures and the referendum: Most of the states which have the initiative and referendum make a distinction between emergency measures which shall not be subject to the referendum and other measures which shall be subject to the referendum upon petition. In a number of cases legislative measures which are to go into effect at once must be adopted by higher legislative majorities. The distinction between emergency and other measures is of course based upon the notion that other measures shall be suspended for a certain time after legislative passage to await a possible referendum petition. In

a few cases the plan has been adopted of discarding the distinction. between emergency and other measures, thus permitting all measures to come into effect at once subject to a popular referendum which will operate as a repeal. Such a plan does away with two very serious difficulties under the plan which contemplates emergency measures:

(a) The declaration of emergencies in cases where no real emergency exists in order to avoid the referendum. In some states this of course would not avoid the referendum, but would lead almost necessarily to litigation as to whether the emergency actually exists.

(b) The filing of a referendum petition as a means of delaying the operation of a measure enacted by the legislature, with little or no notion that the measure would finally be rejected by the people.

Of course the plan of bringing all laws into operation at once, subject merely to a repeal by means of a referendum, would be open to some abuse in that the result sought by the measure might be accomplished before the possibility of such repeal. The plan here referred to, however, could be tied up with a plan for special elections in exceptional cases. There is a tendency to prohibit the use of the referendum upon regular appropriations, and it is with respect to regular appropriations that the lapse of time would in most cases involve the accomplishment of the purpose sought by the legislation.

Relation between the initiative and referendum and the regular legislature: The tables already given indicate perhaps with sufficient clearness that the initiative and referendum are not in any detailed way substitutes for the ordinary process of legislation, although several of the elections (separately analyzed) would seem to indicate that in certain instances this might be the case.

For example, in South Dakota between the years 1899 and 1917, two thousand five hundred and seventy-three laws were passed, whereas seventy-three acts and constitutional amendments were submitted to a popular vote, and of these fifty were proposed constitutional amendments, leaving but twenty-three as submissions of laws, and of the laws submitted but eight were adopted. For the state of Oregon between the years 1904 and 1919, two thousand six hundred and fiftyfour laws were passed by the legislature. During the same period one hundred and seventy measures were submitted to a popular vote, of which eighty were proposed constitutional amendments, leaving but ninety proposed laws submitted to the people, of which thirty-five were adopted. However there have been some tendencies in the initiative and referendum toward provisions which will necessarily increase the number of measures to be submitted to the people. In a number of states there has been a tendency to provide that laws enacted by the initiative, and in some cases that laws submitted to and approved upon a referendum, shall be amended or repealed only upon the basis of a popular vote. Repeals or amendments of such laws would without such a provision normally be subject to a popular vote if the people were sufficiently interested to submit a referendum petition, and there