We asked Mr. Kimberling if he was trained in telecommunications or computers. He said no. We asked what his degree was in. “Political Science”, he said. His doubt that phone voting is possible was disproved by the 1974 National Science Foundation- funded Televote project and the 1992 and 1993 Canadian Liberal Party primaries.

BALLOT BOX BATTLES WITH THE COUNTER-INITIATIVE:

PUBLIC CHOICE OR CURE FOR AGENDA CONTROL?

by K. K. DuVivier
University of Colorado School of Law
Campus Box 401
Boulder, CO 80309-0401

(c) 1993 by K.K. DuVivier.
Discussion draft; please do not cite or quote without permission of author.

Table of Contents

ABSTRACT
INTRODUCTION

• I. BACKGROUND
• A. History of the Initiative
• B. The Counter-initiative’s Role in Initiative Fever
• C. Despite the Increase, Voters Want to Keep the Process
• II. DEFINITIONS OF CONTRARY MEASURES AND CONVENTIONAL RESOLUTION OF CONFLICTS
• A. Presumption of Validity
• B. Determining Whether Initiatives Conflict
• 1) Sequential enactments
• 2) Determination of conflict
• (a)Implied repeal
• (b)Purpose and means
• (c)Initiative-created conflict
• C. Resolution of Conflicts
• III. VOTING THEORY AND THE ROLE OF THE COUNTER-INITIATIVE
• A. The Voting Paradox and Agenda Control
• B. Interest Group Control
• C. The Counter-initiative as Cure

CONCLUSION
FOOTNOTES

ABSTRACT

The ballot initiative[1] process is barely a century old, and some of its major flaws are just now coming to light. In this age of the sound byte, a simplified “yes/no” choice is an appealing solution to complex questions. As with legislation, voters are content to let someone else figure out the details.

Initiative law, however, has none of the checks of the legislative process. Initiative drafters, unlike elected representatives, are not accountable to voters in the electoral process. Although many drafters may believe their efforts are altruistic, public choice theory demonstrates that initiative drafters can manipulate the initiative process to promote their own individual interests. The November 1993 passage of an initiative permitting a single San Francisco police officer to carry his dummy[2] highlights how self-serving initiatives can be.

While many voters hold the initiative process sacrosanct, scholars and legislators have called for changes to an imperfect process.[3] Reforms may be warranted, but those that seek to increase the number of signatures to qualify a measure for the ballot are misguided. By making ballot accessibility more difficult and by reducing the number of initiatives, these reforms place agenda control more squarely in the hands of a few monied interests.

In contrast, the use of counter-initiatives may mitigate the problem of interest-group agenda control. Counter-initiatives — multiple initiatives addressing similar issues on a single ballot — have been widely criticized by the few commentators who have recognized the phenomenon. Because counter-initiatives are a relatively new, but growing, force, most counter-initiative battles are being fought on the ballot, rather than in the courts. California has addressed the interpretation of counter-initiatives, but guidance for interpreting them in other states may come from prece dents addressing the resolution of individual provision conflicts.

Counter-initiatives allow diverse groups to participate more fully in addressing an issue than simply registering a “yes” or “no” response to a general concept. Agenda control is wrested from a single individual or interest group and shared by others most affected by the result. Counter-initiatives can focus the debate and help educate conscientious citizens. Although a simple choice may be appealing, counter-initiatives force all voters to recognize their role in and accountability for the detailed outcomes resulting from citizen-made laws.

INTRODUCTION

In June of 1988, a majority of California voters passed two ballot initiatives on campaign reform: Proposition 68 and Proposition 73. But Californians have yet to see any campaign reform in their state. The California Supreme Court determined both initiatives proposed “alternative regulatory schemes, [and there was] a fundamental conflict” between them, therefore, only the initiative with the greatest number of votes, Proposition 73, could be operative.⁴ This result insured there would be no re form, because shortly before the California Supreme Court’s decision, the significant provisions of Proposition 73, those limiting campaign contributions, were declared unconstitutional.⁵

The November 1990 ballot in California represented one of the largest counter-initiative battles in history. The battle started with the introduction of “Big Green,”[6] a comprehensive “16,000-word environmental measure that would curtail the felling of ancient forests, halt the spraying of dangerous pesticides and restrict offshore oil drilling. . . .”[7] Big Green was not stringent enough for some, so “anti-logging militants”[8] introduced a “more radical anti-logging initiative.”[9] Fearing that simply to oppose the other initiatives would be a losing strategy, the timber industry entered the fray by countering with Proposition 138, a more moderate regulation of timber harvesting.

Also in response to Big Green, farm groups and chemical manufacturers introduced Proposition 135. Proposition 135 would control pesticide use, but required less stringent regulations than Big Green. In 1986, these same farm groups and chemical manufacture rs had simply opposed a pesticide initiative on the ballot and “were clobbered.”[10] With Proposition 135, they hoped to make a “pre-emptive strike,” but Big Green supporters outmaneuvered the chemical industry by revealing its counter-initiative strategy in advance.¹¹

On the same 1990 ballot in California, another battle raged over taxes on alcoholic beverages. Several groups including The California Chapters of Mothers Against Drunk Driving, The California Association of Highway Patrolmen, and The California Council on Alcohol Problems sponsored Proposition 134, an initiative statute[12] to place a “nickel-a-drink” tax on alcohol to fund various health, mental health, and criminal justice programs. The alcohol industry responded first by lobbying the legislature to place a legislative constitutional amendment [13] concerning taxes on alcoholic beverages on the ballot for citizen approval. Second, the alcohol industry helped fund a “Trojan horse”[14] or “ballot virus”[15] measure, Proposition 136. Under the guise of a taxpayer’s right to vote on new taxes, a provision in Proposition 136 could have invalidated completely Big Green and Proposition 134, as well as two crime control measures.

Of the seventeen initiated measures[16] on the California statewide ballot in 1990, only three passed. All of the counter-initiative measures failed.[17] Although the use of counter-initiatives waxes and wanes, in most states they are a viable method of introducing alternative viewpoints. The lessons to be gleaned from states and local governments with a history of counter-initiatives use may well benefit those that have not yet experienced this phenomenon.

Part I of this article will provide some history of initiative and counter-initiative use throughout the states. Part II addresses how portions and entire initiative measures have been deemed in conflict and how such conflicts have conventionally been resolved. Finally, in Part III, voting theory is discussed and the role of the counter-initiative in balancing the agenda control special interests have exercised in formulating initiatives without opposition.

I. BACKGROUND

A. History of the Initiative

Twenty-three states and the District of Columbia have constitutional or statutory provisions relating to some form of statewide initiative for constitutional amendments or statutory enactments.[18] Some states have both constitutional and statutory initiatives.[19]

The initiative is somewhat a “western phenomenon” in the United States because eleven western states[20] and eight midwestern and plains states[21] have initiative provisions. In contrast, only two eastern states,[22] two southern states[23] and the District of Columbia have such provisions.[24] The Commonwealth of Pennsylvania section of Common Cause is currently attempting to introduce the initiative process in that state.

Not only are initiatives enacted independently of the legislature, in many states the executive veto is not permitted, and the legislature may not amend or repeal an initiative measure.[25]

The first states to adopt the statewide initiative procedure were South Dakota and Oregon in 1898. In California, the initiative and referendum process was introduced after a fifteen-year struggle by the Progressive movement culminated in the election of its candidate Governor Hiram Johnson. Governor Johnson won largely on the promise to stop the corruption of “the former political master of this State, the Southern Pacific Company.”[26]

In the early decades of the twentieth century, initiatives were numerous and commonplace. Beginning in the early 1940s and extending through the 1960s, initiative politicking declined substantially in all states. Many experts came to believe it was out of date.[27]

Some commentators credit angry voters in California with the rebirth of the initiative process. Since California voters passed Proposition 13 in 1978, initiatives have seen a dramatic resurgence. In some states direct democracy legislating rivals legislating by the elected representatives or the executive in terms of overall policy significance. “‘Initiative fever’ [in California] has reached epidemic proportions.”[28]

Initiative use has surged in response to a growing public disenchantment with federal and state elected officials. Many voters have a jaundiced view of their elected officials fueled by negative campaigns and massive PAC contributions from special interests. “The initiative gives the public, at least in some states, a chance to bypass these ‘tainted’ politicians and government institutions and take power into their own hands. Clearly, public disillusionment with elected officials has helped generate a new interest in the initiative.”[29]

California and Oregon alone have accounted for one-third of all initiatives qualifying in the 1980s. Throughout this century, these two states have had the highest consistent initiative propensity. Montana, a moderate-use state overall, was the third most active initiative state in the 1980s. The five high-use states (Oregon, California, North Dakota, Colorado, and Arizona) account for nearly 60 percent of initiatives qualified in the 23 initiative states.[30]

At the other end of the “initiative-propensity continuum,” five states accounted for only 7 percent of the state initiatives (Idaho, Maine, Nebraska, Nevada, and Utah).[31]

B. The Counter-initiative’s Role in Initiative Fever

In terms of numbers of measures and pages in the ballot handbooks, the use of counter-initiatives contributes significantly to the proliferation of measures on each ballot. The November 1990 ballot in California had seventeen initiatives and constitutional amendments, the highest number since 1914 when there were also seventeen initiatives.[32] Three-fifths of the total measures ever submitted to California voters have been introduced during the last twenty years, or just one-quarter of the initiative’s history in the state.[33]

The November 1988 state ballot in California also sported multiple counter-initiatives. Four initiatives dealt with reform of automobile insurance rates (Propositions 100, 101, 103, and 104). Only one of the four, Proposition 103, passed. In May 1989, a declawed version of Prop. 103 was upheld by the California Supreme Court; the court said Prop. 103 was valid, but the insurance commissioner can grant relief from rollbacks, where necessary to establish “fair and reasonable” premium levels.[34]

In Colorado, the November 1992 statewide ballot contained ten initiated constitutional amendments, the highest number on the Colorado ballot since 1912 when voters were asked to vote on fourteen constitutional amendments.[35] Of the ten initiatives in 1992, four constitutional amendments addressed gambling in different areas in the state. The ten measures on the Colorado ballot in November 1992 were distilled from about forty-five different voter petitions circulating before the election (six for a school voucher concept, eleven for gambling).[36] The remaining measures did not garner enough valid signatures to be placed on the ballot.

C. Despite the Increase, Voters Want to Keep the Process

Although counter-initiatives tax voter patience and require more time to study the issues and to vote, few citizens are willing to abandon this safety-valve process.[37] In a statewide poll conducted in 1985 by the Institute of Politics & Government, seventy-one percent of Californians said they liked the initiative process.[38] “Clearly, the initiative and referendum processes offer expedient means for citizens to ask and answer those politically sensitive questions that politicians have successfully avoided.”[39] “[I]t enlivens political debate and offers a needed pipeline for reform.”[40]

In Colorado, in a special poll conducted in 1990 by Talmey-Drake Research, more than fifty percent of voters said they “think there are ‘not enough’ ballot issues.” An additional fifteen percent thought “there are the ‘right number.'” Combined, about “70 percent [expressed] satisfaction with the process.”[41]

In an effort to halt this locomotive coming upon them, some states have turned to reforms.[42] One proposed solution is to increase the threshold number of signatures to qualify a measure for the ballot.[43] Change such as the “indirect initiative” would put a measure to public vote only if it failed to pass in the legislature. Despite shortcomings with the process, few voters are willing to give the initiative up. “They view it as sort of a whip, something to hold over the head of the Legislature. . . . There’s something fundamentally important about it.”[44]

II. DEFINITIONS OF CONTRARY MEASURES AND CONVENTIONAL RESOLUTION OF CONFLICTS

In states that permit citizen initiatives, several initiative measures frequently appear on the ballot. How then is it determined that two or more initiatives are counter-initiatives? Few courts have addressed the invalidation of one entire initiative by a countervailing measure. More often judicial analysis has focused on a determination of specific conflicting provisions.

This section will address how courts traditionally have defined conflict and how they have resolved such conflicts in the context of both individual initiative provisions and entire counter-initiatives.

A. Presumption of Validity

In 1912 the United States Supreme Court determined that the initiative system of direct democracy did not violate the federal Constitution’s guarantee of a “republican form of government.”[45] Since that time, courts have focused not on the legitimacy of the process, but instead “on the standard of legal review to be used in assessing the legitimacy of individual ballot initiatives.”[46]

While some commentators have urged heightened judicial scrutiny of initiatives,[47] “judicial acceptance of ballot propositions has been essentially unquestioning and laudatory of the process.”[48] Courts generally give ballot initiatives great deference and express reluctance to overturn them.[49] A few states have even stripped their judiciary of the power to review initiatives at all.[50]

Despite strong arguments concerning the need for judicial intervention,[51] courts seem sensitive to claims that they are elevating their judgments over the expressed will of the people.[52] “While the initiative and referendum may not fit into a given philosopher’s model, and while these powers may, like any others, be misused from time to time, one would hope that the courts will not fall prey to the elitist argument that the people do not know what is best for them and therefore need someone else to tell them.”[53] Most recently, the United States Supreme Court declined the opportunity to require higher judicial scrutiny for an initiative measure when it upheld California’s property tax relief initiative Proposition 13.[54]

Because of the revered status of citizen-made law,[55] it is not surprising that initiatives are rarely invalidated in their entirety. Generally, only severed portions of an initiative are found invalid;[56] the remaining provisions may be implemented. In California, the courts have completely invalidated only three of the twenty-nine initiatives passed since 1974.[57] Counter-initiatives played a key role in these invalidations; two of the three were invalidated as irreconcilable with a conflicting alternative.[58] Thus, the survival of any of an initiative’s objectives may hinge on whether it is classified as a counter-initiative.

B. Determining Whether Initiatives Conflict

Because there is a presumption that all law should be given proper effect,[59] whether passed directly by the people or by their representatives,[60] the courts generally are cautious in determining that initiatives contain mutually exclusive provisions. The analysis requires first a determination of conflict under a range of tests. Second, state by state rules determine how the conflict is to be resolved.

1) Sequential enactments

Most often the issue of conflict in statutory or constitutional provisions arises when a subsequent provision is enacted. However, there is a strong presumption against implied repeal of a statutory or constitutional provision by subsequent enactment.[61] The rule applied to legislation providing that subsequent enactments are “to be construed harmoniously with antecedent provisions”[62] frequently applies as well to initiatives.[63]

When there is an irreconcilable conflict, however, the most recent enactment, even if passed by fewer voters than the previous initiative, prevails because the later in time is “the latest expression of the will of the people”[64] or “the last word from the people.”[65] Thus, a ballot proposal cannot be invalidated simply because it conflicts with an existing provision. If passed by a majority, the new law supersedes previous versions.[66]

2) Determination of conflict

Three states have methods of determining conflicts and grouping counter-initiatives as alternatives on the ballot. In Massachusetts, citizen-sponsored initiatives may be juxtaposed if the legislature determines they are “alternative measures.”[67] In Washington state, the legislature may propose an alternative to a citizen initiative. Voters are given the option first of indicating whether they wish to vote for either measure or none. If the voters indicate they do wish to choose one of the measures, they then vote their preference. If the majority of voters wish to make a choice, then the measure receiving the majority of votes becomes law. Only one measure can become law.[68] Maine also has a system for juxtaposing a legislature-sponsored initiative on the ballot as an alternative to a citizen-sponsored measure.[69]

In states that do not have a method for defining conflict on the ballot itself, conflicts must be determined, and resolved, after the election. Fourteen of the twenty-three initiative states have constitutional or statutory provisions to resolve conflicts if counter-initiatives are adopted in the same election.[70] However, implementation of these conflict provisions is avoided if the court determines that the initiative measures can coexist harmoniously.[71] Then neither initiative can be considered void for being inconsistent with the others.[72]

There is no uniform test for determining whether initiative provisions conflict because the constitutional and statutory requirements vary widely from state to state. However, the methods for determining conflict fall generally into one of three categories: (a) Do the provisions of one initiative “imply the repeal” of another? (b) Do the initiatives have the same ultimate “purpose” achieved through similar “means”? or (c) Does the language of one of the initiatives expressly state that a conflict exists? Under the narrowest implied repeal test, few initiative provisions would be invalidated as conflicting. If express statements of conflict in an initiative are upheld by the courts, they provide the most extensive opportunities to invalidate other initiatives through a presumption of conflict.

(a) Implied repeal

Under the “implied repeal” test, two ballot measures are in conflict if one measure would have impliedly repealed the other had it been enacted later.[73] This test requires extensive overlap of two potentially-conflicting provisions and is the most stringent for determining conflict.

A form of the implied repeal test was applied by the Massachusetts Supreme Court in Buckley v. Secretary of Commonwealth.⁷⁴ The Massachusetts Constitution permits the legislature to group two or more initiative provisions on the ballot as alternatives to each other.[75] Although the Massachusetts Constitution provides no guidelines for identifying measures as alternatives, the convention debates suggest that the concept of “alternative measures” involves those “which overlap, are logically inconsistent or for other objective reasons could not or should not stand side-by-side as law together.”[76] The Buckley court refused “to give an overbroad meaning to the word ‘substitute'”[77] and narrowed the legislature’s right to craft an alternative proposal. The legislature had the power only “to edit, polish or amend an initiative proposal while retaining in that process the sense of the proposal so revised.”[78]

Because a legislative proposal for stiffer sentences in gun-related crimes was “quite different in context and effect” from a citizen initiative banning the private possession and sale of handguns, the Buckley court found the two measures were not true alternatives and could not be placed on the ballot as such.[79]

The Colorado Supreme Court has traditionally used a form of the implied repeal test. The court articulated the test with the following question: “Does one [initiative provision] authorize what the other forbids or forbid what the other authorizes?”[80] Employing this test, the court found that the differences between portions of two constitutional amendments concerning the process of reapportionment were irreconcilable and the provisions in the amendment receiving the most votes would prevail.[81]

(b) Purpose and means

A less restrictive test for determining whether initiative provisions are in conflict is the “purpose and means” test. Under this standard, any two measures accomplishing the same general purpose by substantially similar means could be considered in conflict.

The Alaska Supreme Court applied a form of the purpose and means test in Warren v. Boucher.⁸² Under Alaska law, a citizen initiative may be invalidated if the legislature enacts a statute that is “substantially the same as the proposed [initiative].”[83] The Warren court stated that “[the legislature] has broad power to change an initiative” and emphasized that it was not “passing here on the question of whether an amendment so vitiates an act passed by initiative as to constitute its repeal.”[84] Instead, the court concluded that the two campaign funding measures before it were “substantially the same” because they “accomplish the same general goals” and ecause they “adopt similar, although not identical, functional techniques to accomplish those goals.”[85] Therefore, the citizen initiative was void.[86]

The California Supreme Court also seemed to apply a form of the purpose and means test in Taxpayers to Limit Campaign Spending v. Fair Political Practices Comm’n.⁸⁷ Although the two propositions set forth varying schemes for campaign reform, the court looked to the overall purpose of the initiatives and how they were presented to voters to conclude that they were mutually exclusive alternatives. “[W]hen two or more measures are competing initiatives, either because they are expressly offered as ‘all or nothing’ alternatives or because each creates a comprehensive regulatory scheme related to the same subject . . . ,” the two propositions conflict and only the one with the highest number of supporting votes can become law.[88]

There is even some indication that Colorado may be moving away from the traditional implied repeal test. In Submission of Interrogatories on Senate Bill 93-74,⁸⁹ the Colorado Supreme Court first reiterated its confidence in the traditional test by stating that it “should not resort to rules that give effect to one provision at the expense of the other unless there is irreconcilable, material, and direct conflict between the two amendments.”[90] Applying the traditional test, the Colorado Supreme Court found “no irreconcilable, material, and direct conflict”[91] between Amendment 1 (a comprehensive tax-reform and budgetary measure) and Amendment 8 (a funding mechanism for recreational lands). This conclusion would seem to permit all provisions of both amendments to take effect.

However, the Senate Bill 93-74 court went on to recognize an “implicit conflict” between the two amendments.[92] The court then continued its analysis with an emphasis on each amendment’s purpose: how to balance the underlying purposes of each amendment in an effort to “give effect to the expression to the will of the people in enacting both amendments.”[93] Finally, Amendment 8 prevailed because its proceeds were exempted from the restriction provisions of Amendment 1.

(c) Initiative-created conflict

One of the newest devices on the initiative scene is language expressly stating that the initiative, or portions of it, are in conflict with one or more initiatives on the same ballot. Such an express provision is an efficient method of defining conflict.[94] With the wording in the initiative itself, voters are put on notice of the conflict and their obligation to make a choice between options. Furthermore, if the initiative containing the conflict language passes with a greater number of votes, the courts might interpret the conflict provision as an express mandate of the people.

In its most benign form, such a statement of conflict would only express the obvious: that two provisions dealing with the same subject matter conflict. However, some recent initiatives have contained more expansive expressions of conflict. Such an expansive provision has been variously dubbed a “winner-take-all” provision, a “ballot virus,”[95] or a “Trojan horse.”[96]

Proposition 136 on the November 1990 ballot in California contained one of the most extensive ballot virus provisions yet proposed.[97] Hidden in the Trojan horse guise of a proposition that would limit taxation and allow more voter control of finances, Proposition 136 contained language that could have infected and completely eliminated four unrelated measures on the November 1990 ballot.[98]

Opponents challenged Proposition 136 as a violation of California’s single subject rule.[99] Under Proposition 136’s terms, any propositions that conflicted in part — whether they addressed environmental concerns, crime control, or liquor taxes — became “void in their entirety.”

Voters resolved the battle of Proposition 136 and its ballot virus provision;[100] the measure was defeated at the polls before the California Supreme Court had an opportunity to rule on its validity. No other state courts have yet been challenged to interpret a similar ballot virus measure.[101]

C. Resolution of Conflicts

Once the provisions of two initiatives are deemed to be in conflict, the states have two basic methods for resolving the dispute. In eight of the fourteen states that address conflicts, only one measure can become law if more than one initiative passes on the same subject.[102] In these states, if two or more measures on the same subject are enacted, then “the one” or “the measure” or that entire initiative receiving the highest number of affirmative votes prevails.[103]

In contrast, five states require that most provisions of conflicting initiatives be harmonized. If two or more initiatives are passed dealing with the same subject, then the provisions of the one receiving the fewer votes are void only if they conflict with specific provisions in the measure receiving more votes.[104] If two or more measures are adopted, then the one receiving the greatest number of votes shall be adopted “in all particulars as to which there is a conflict” or “as to all conflicting provisions.”[105]

Traditionally, California has resolved conflicts by harmonizing provisions. For example, in Estate of Gibson v. Bird,¹⁰⁶ the California Supreme Court attempted a provision-by-provision comparison of two successful measures that both repealed the state’s inheritance tax laws in 1982. The court determined the two measures were essentially the same, but they conflicted only with respect to the effective date. Therefore, the initiative receiving more votes, and its effective date, superseded only the conflicting measure’s retroactive date-section. All other provisions were harmonized.

Recently, in Taxpayers to Limit Campaign Spending v. Fair Political Practices Comm’n,¹⁰⁷ the California Supreme Court determined that section 10(b) of the California Constitution did not always compel a section-by-section reconciliation. Instead, based upon a historic interpretation of constitutional language,[108] the Court permitted a complete invalidation of the conflicting initiative. A fact that helped persuade the Taxpayer court not to harmonize provisions was that four attempts were made by various governmental bodies to reconcile the conflict. Provision-by-provision analysis achieved no less than three different “Frankenstein’s monster”[109] interpretations: one by the Legislative Counsel, one by the Fair Political Practices Commission, and one by the court of appeals. The combined results would produce more restrictive campaign finance reform laws than either Proposition 73 or Proposition 68 above.

The “hybrid regulatory scheme”[110] resulting from harmonization troubled the court for two reasons. First, these hybrids created “unworkable laws.”[111] Second, the court was required to apply a “fictious electoral intent”[112] to enact a hybrid scheme.[113]

Taking comfort in the fact that the measures were presented to voters as mutually exclusive alternatives that sought to “propose alternative regulatory schemes,”[114] the Taxpayer court concluded that “a fundamental conflict exists.”[115] Thus, Taxpayer appeared to create a bifurcated standard of review for counter-initiatives. If two initiatives seek to “comprehensively regulate the same subject,”[116] the measure receiving more votes prevails in its entirety. If the conflict between alternatives is minor, non-conflicting provisions are harmonized.

California decisions since Taxpayers have avoided invalidating any conflicting initiatives in their entirety. In some cases,[117] the conflict between two initiatives has been characterized as minor, and the provisions of both initiatives are combined.[118] In Yoshisato v. Superior Court,¹¹⁹ the court determined two measures relating to criminal justice[120] were “complementary and supplementary”[121] rather than “competing” because they were not presented to voters as alternatives.[122] Non-conflicting provisions were again harmonized.

The court’s focus in both Taxpayers and Yoshisato on how a measure is presented to the voters may signal how initiative-created conflicts will be resolved. If the express statement of conflict is specific enough for the court to presume that voters are on notice that the two measures cannot coexist, the courts may enforce the provision and invalidate the measure receiving less votes. If the conflict provision in an initiative attacks by stealth, like the ballot virus in Proposition 136, the courts may not find it controlling. The very fact that other measures are passed by a majority, when voters presumably knew they would be invalidated in their entirety, might repute any presumption that the conflict provision should be applied.

III. VOTING THEORY AND THE ROLE OF THE COUNTER-INITIATIVE

Through the initiative process, the people gained an ability to set the political agenda. If the legislature avoided a controversial issue, the people could spotlight it by placing that issue on the ballot.

Because initiatives become law by majority vote, they are afforded significant validity as the “will of the majority.” Although courts often serve a countermajoritarian function by protecting the rights of individuals and minority groups, there is a presumption that a majority vote on an initiative legitimately reflects the will of most people. Furthermore, our society has an attitude “in which majoritarianism enjoys increased attention and acceptance.”[123]

However, voting theory places into doubt the presumption that a true majority preference can accurately be measured. Manipulation of how a question is presented, or “agenda control,” can often determine the outcome of a vote. When different alternatives are presented, the majority of voters can “cycle” through different choices and no single alternative reflects a stable or true majority preference.

The ballot initiative represents one of the most extreme opportunities for agenda control in modern lawmaking. In addition, this agenda control rests in the hands of a few unelected individuals. Initiative drafters have unchecked power to formulate the issues to be addressed by a ballot measure. In contrast to the legislative process, once the initiative is drafted and voted into law, there are no opportunities for negotiation or amendment.

Under Public Choice Theory, the basis for political conduct is self-interest. Since the early 1970s, cost factors have driven the initiative option out of the grasp of smaller volunteer efforts. There has been a growing trend for initiatives to be available only for highly motivated and well-funded interest groups. Reforms that require additional signatures to qualify a measure for the ballot only exacerbate the problem by deepening the chasm between volunteer efforts and moneyed interests.

Counter-initiatives have been widely criticized for confusing voters. However, in theory, counter-initiatives provide voters with many alternatives, instead of simple yes-no choices, and should therefore provide better barometers of the will of the majority.

A. The Voting Paradox and Agenda Control

Ballot initiatives present a highly artificial dipolarity. Voters are given only a binary yes-no choice on any issue.[124] In fact the number of alternatives could be as great as the number of individual voters attempting to record their preferences. Yet, generally in the initiative setting, alternatives are not addressed and voter’s individual preferences may not be registered. In reducing complex questions to such simplistic terms, the ballot initiative recreates the paradox of pairwise voting.

In 1785, the Marquis de Condorcet first observed that no accurate majority preference could be measured when three or more mutually exclusive alternatives were grouped for a vote into sequential paired alternatives.[125] Thus “majority rule may not be able to resolve the choice among three or more mutually exclusive alternatives.”[126] This voting paradox evolved into the study of collective choice or choice “from among multiple alternatives that are mutually exclusive.”[127] The theory was expanded by Arrow and applied to most decision-making processes.[128]

In simplified terms, the paradox arises because no true majority preference can be measured. The majority vote cycles to different choices as alternatives are provided.[129] The probability of the paradox’s occurring increases rapidly when the number of individuals voting is large and the number of [citizen] preferences is multidimensional.[130]

The presumed majoritarian outcome resulting from a statewide ballot initiative is given great deference by the courts. Criticism of judicial review often focuses on the court’s interference with the expressed will of the majority. Yet, because of the voting paradox, the initiative, which attempts to poll millions of individual preferences, is an inaccurate measure of true majority preference, if such a preference in fact exists.[131]

Because the majority preference can cycle to different choices under the paradox, the party controlling the agenda, or presentation of choices, often controls the outcome. Thus, the paradox raises a “grave skepticism about whether the product of any decisionmaking process can be thought to represent a true ordering of preferences untainted by the constraints of the selection process. . . . Within each ranking of preferences is the ‘cycling’ problem of divergent preferences being forged into a majority vote by the constraints of the selection process. . . .”[132]

When the conditions of the paradox exist, the actual choice among alternatives is determined by how the choices are ordered. Thus, “the person who sets the agenda can control the outcome.”[133] With ballot initiatives, the drafters are often moneyed minority interests that can exploit agenda control to leverage their position into a majority vote.[134]

B. Interest Group Control

Social Choice Theory provides an effective, albeit simplified, model for understanding the trend in initiative use in the last two decades.[135] Small, single-minded, well-organized interest groups can convey their messages more effectively than large dispersed groups with diverse agendas.[136] Ballot initiatives provide the ideal vehicle for such interests.[137] There are no legislative-process checks nor is there any accountability through the electoral process.

Initiatives are drafted by unelected individuals or partisans of interest groups. They are often clumsily written. Portions may be invalidated and produce disappointing results because the authors were more interested in making a statement than writing law.[138] Sometimes they are written to specially benefit the drafter.[139] Legislation undergoes “hearings, debates, discussions, and calm deliberate decision-making by representatives whose full-time job is to become thoroughly informed. All of these deliberative procedures are bypassed by the initiative process.”[140] Once an initiative becomes law, there is no process for amendment other than to have the voters pass an opposing measure.

The electoral process also provides a check on special interests that is not available in the initiative setting. Certainly, money wields power in the legislature. “Payments take the form of campaign contributions, votes, implicit promises of future favors, and sometimes outright bribes. In short, legislation is ‘sold’ by the legislature and ‘bought’ by the beneficiaries of the legislation.”[141] However, legislators must face reelection, and they cannot be overly responsive to the pressures of special interest groups without negative repercussions at the ballot box.[142]

Initiatives are a way for politicians to avoid responsibility and for special interests to get their own way on issues. “There is no electoral downside for special interests for putting them [initiatives] on the ballot.”[143] Thus the legislative process minimizes the impact of minority manipulation, the initiative process rewards it.

Special interest groups have quickly moved in to make use of the initiative process. Since 1978, the trend has been toward “professionalization.”[144] “What was once a valuable agenda-setting mechanism for citizens has increasingly become a tool of professional special interest groups.”[145] Money has become the predominant factor. “It used to take a ground swell of popular support to get something on the ballot. Now its just money and special interests.”[146]

After Meyer v. Grant,¹⁴⁷ the initiative process experienced a loss of innocence. Paid signature gatherers are now a fact of life. Even citizen “grassroots” organizations such as Common Cause use them. In California, a whole industry gathers signatures and hawks propositions. At forty to sixty cents a signature, it can cost from $850,000 to one million dollars to gain enough signatures to qualify an initiative for the ballot in California.[148] It was a $130 million bonanza for political consultants, advertising agencies, and television stations in 1988.[149] “Anyone with the money has been able to grab the state’s soap box for an election cycle.”[150]

Lowenstein documented that funding was the primary factor in determining the outcome of an initiative battle.[151] Despite popular enthusiasm for a measure, increased spending by the opposing campaign could ensure its defeat.[152] At one time civic organizations and volunteer groups could qualify an initiative. “Today, a viable qualification effort requires exorbitant financial resources, professional administration, and access to sophisticated campaign technology.”[153]

C. The Counter-initiative as Cure

The counter-initiative has been almost universally maligned as an obfuscatory process.[154] Its critics argue that monied-interests have unfairly used the process to oppose and defeat legitimate citizen measures[155] and that there is something dishonest or insidious in launching a counter-initiative instead of simply mounting a “Vote No” campaign against the original measure.[156] They suggest it is inappropriate to bill counter-initiatives as more moderate or simplified proposals.[157]

In some instances counter-initiatives have been deceptive.[158] Yet, because the wording of any initiative is determined by an unelected and unaccountable individual or small group, it is the imperfect initiative process itself that provides opportunities for manipulation of voters. There is no guarantee that the drafters of original initiatives have any purer motives than those of a counter-proposal.

One of the original objectives of the initiative was to educate voters and make them participate more in the political process.[159] Counter-initiatives can facilitate citizen education and participation. In the past two decades, the complexity of initiatives has been increasing; many require a post-graduate education to read and interpret.[160] As a strategy for luring more voters, some counter-initiatives are simpler and more focused on a few issues than the original measure. Thus, counter-initiatives can provide an impetus for simplifying all initiatives.

Although it may be “pure mythology” to “suggest that voters approve[], let alone underst[and], the many facets”[161] of complex initiatives, courts continue to apply a presumption that the public understands what it is voting for, or else risk being charged with elitism. If voters truly understand complex initiatives, counter-initiatives should pose no threat. By proposing alternative language for key provisions,[162] counter-initiatives can focus the debate and better educate citizens about the specific type of reform proposed.

With a single initiative, educated voters are given only one option –change as structured by the initiative’s authors, or no change. The major benefit of the counter-initiative is that it wrests this agenda control away from a single interest group. By allowing different groups to frame the question and provide voters with alternatives, counter-initiatives provide well-informed voters with better opportunities to define their preferences.[163]

A recurring criticism of the Taxpayers decision is that in invalidating Proposition 68 entirely, the court interfered with implementation of the will of the majority.[164] If both Proposition 73 and Proposition 68 passed by a majority vote, shouldn’t Proposition 68 be enforced when key portions of Proposition 73 were declared unconstitutional? This reasoning ignores the fact that majorities can vary initiative by initiative.[165] 2,720,605 citizens voted for Proposition 68.[166] Although this figure was a majority of all of those voting on Proposition 68,[167] it was not a majority of all voters casting ballots in the June 7, 1988 election.[168] If the total number of voters is considered, a majority of voters either voted “No” or did not vote at all on Proposition 68.[169] If non-votes are treated as “No” votes, it was reasonable for the Taxpayer court to assume that Proposition 68 was not supported by the majority of California voters.

The presumption of informed voters can cut both ways. Although it is generally used to uphold an initiative, the presumption supports the Taxpayer result of invalidating Proposition 68 completely. Because the campaign literature marketed the two propositions as irreconcilable alternatives and urged voters to vote for their measure and against the alternative,[170] voters who studied and understood this literature would not have voted for both Propositions.[171]

The assumption that a non-vote is equivalent to a “No” vote favors the status quo and seems reasonable in the context of counter-initiative interpretation. It is possible to assume that California voters simply wanted reform and voted for both Proposition 73 and 68 to achieve that end.[172] A presumption that a non-vote is a “No” vote would penalize those voters who come to the polls simply seeking reform, but not bothering to educate themselves that one method of reform might be better than another or that the two measures had been presented as irreconcilable alternatives.

Citizens should be entitled to express such general opinions, but initiatives result in detailed and complex law. Few initiative supporters would advocate a system that produces such laws through a process of uninformed decisions based primarily on the visceral[173] responses of impressionable voters. Manipulation then becomes a serious threat.[174] If no initiative passes, the issue may be passed on to the legislative process where representatives can be educated on the benefits of alternatives and the result can be buffered by traditional balances.

CONCLUSION

Ballot initiative use has burgeoned in the last twenty years. Dissatisfaction with the resulting laws and campaign tactics has spurred calls for reform. Although reform may be needed, one solution — requiring a higher threshold of signatures to qualify measures for the ballot — is misguided because it restricts the use of counter-initiatives.

Counter-initiatives may have been used to manipulate voters in the past, but the opportunities for abuse come from the shortcomings of the initiative process and not from the counter-initiative itself. In fact, the use of counter-initiatives can be salutary for the initiative process.

A counter-initiative may be more cost effective than an opposition campaign. Furthermore, while the original initiative permits a single group or individual to control how an issue is to be addressed, counter-initiatives permit several groups to shape the agenda on a particular issue.

Finally, a counter-initiative’s structure or an express provision identifying conflict, may facilitate how courts resolve conflicts between alternative measures.

View Footnotes

[1] The initiative process often is called direct democracy, as opposed to representative democracy. Because usage is not uniform, the generic term “initiative” is used throughout this article to describe measures placed on a ballot by petition of citizens. Other terms commonly used for initiated measures, regardless of whether they are for constitutional amendment or statute, have included “ballot proposal,” “ballot measure,” “proposition,” and “plebiscite.”

[2] Proposition BB on the November 2, 1993 ballot in San Francisco.

[3] This article does not take a stand on the wisdom of initiative law-making in general. Experts before me make very persuasive arguments about the shortcomings of the initiative process. However, in the present political climate, few can argue seriously that the initiative process should be abolished. Therefore, this article will address how the existing process of introducing alternatives through counter-initiatives should provide the opportunity for more balanced results.

Because of space constraints, this article will not address one of the major criticisms of the initiative process: the tyranny of majority rule and appropriate protection and representation of minority views. For discussion on these issues, see THOMAS E. CRONIN, DIRECT DEMOCRACY: THE POLITICS OF INITIATIVE, REFERENDUM, AND RECALL (1989); DAVID B. MAGLEBY, DIRECT LEGISLATION: VOTING ON BALLOT PROPOSITIONS IN THE UNITED STATES (1984); Lynn A. Baker, Direct Democracy and Discrimination: A Public Choice Perspective , 67 CHI.-KENT L. REV. 707 (1991); Julian N. Eule, Representative Government: The People’s Choice, 67 CHI.-KENT L. REV. 777 (1991); William H. Riker, Comment on Baker, “Direct Democracy and Discrimination: A Public ChoicePerspective,” 67 CHI.-KENT L. REV. 791 (1991).

Judicial review will be addressed only as it reflects how the courts interpret conflicting provisions. For more information on why an alternative standard of review may be appropriate, refer to Julian N. Eule, Judicial Review of Direct Democracy, 99 YALE L.J. 1503 (1990).

⁴ Taxpayers To Limit Campaign Spending v. Fair Political Practices Comm’n, 799 P.2d 1220, 1236 (Cal. 1990).

⁵ Under either “the stringent standards ordinarily applicable to restrictions upon First Amendment rights, or the balancing test applicable to First/Fourteenth equal opportunity to engage in political activity, the fiscal year provisions of Proposition 73 must fail.” Service Employees Int’l Union v.Fair Political Practices Comm’n, 747 F. Supp. 580, 589 (E.D. Cal. 1990), aff’d, 955 F.2d 1312 (9th Cir.) and cert. denied sub nom. California Fair Political Practices Comm’n v. Service Employees Int’l Union, 112 S. Ct. 3056-57 (1992).

The fate of Proposition 73 and Proposition 68 may not yet be final. At oral argument before the California Supreme Court in November of 1993, there was some discussion of reviving Proposition 68. Todd Woody et al., Defense Faces Tough Questioning on ‘Fear of Cancer,’ THE RECORDER, Nov. 3, 1993, at 1, cited in Elizabeth M. Stein, Note, The California Constitution and the Counter-Initiative Quagmire, 21 HASTINGS CONST. L.Q. 143, 181 n.308 (1993).

[6] Proposition 128 on the November 1990 statewide ballot in California.

[7] Jorge Casuso, California gets dizzy from initiative fever, CHICAGO TRIBUNE, Sept. 30, 1990, at 1.

[8] Dan Walters, Some Initiatives Try to Confuse , L.A. DAILY J., Feb. 21, 1990, at 6.

[9] Id. Reference is to Proposition 130 on the November 1990 statewide ballot in California.

[10] Walters, supra note 8 (referring to Proposition 65 on the 1986 California ballot).

¹¹ Id.

[12] A growing strategy is to by-pass the initiated statute process and instead introduce all initiatives as amendments to the constitution. In many states, if two initiatives pass, the initiative with the greater number of votes prevails over a conflicting initiative on the same ballot. However, because a constitutional amendment supersedes a statute, a constitutional initiative would control over a statutory one, even if the constitutional initiative passed with fewer votes.

[13] Proposition 126 on the 1990 California ballot. Legislation and amendments to be approved by the public, but which are placed on the ballot by the legislature rather than by a signature campaign of the people, are often called referenda or referendums.

[14] Taxpayers, 799 P.2d at 1246 n.1 (Mosk, J., concurring and dissenting).

[15] Hallye Jordan, Initiative Would Void Others on Ballot, Suit Says, L.A. DAILY J., June 14, 1990, at 1 (referring to court documents filed by Steven L. Mayer in Van de Kamp v. Eu available in author’s files).

[16] Thirteen citizen initiatives and four legislative measures.

[17] Proposition 140, addressing limits on terms of office
for elected officials did pass. It might be considered an alternative to
Proposition 131, which also addressed terms of office.

[18] THOMAS M. DURBIN, INITIATIVE, REFERENDUM AND RECALL: A RESUME OF STATE PROVISIONS, Report 81-63A 751/110, Congressional Research Service (1981).

[19] Arizona, Arkansas, California, Colorado, Massachusetts, Michigan, Missouri, Montana, Nebraska, Nevada, North Dakota, Ohio, Oklahoma, Oregon, and South Dakota.

[20] Charles M. Price, Initiative Qualifying In The States, 1898-1989: Variations in Usage, FAMILY, LAW & DEMOCRACY REPORT (Feb. 1990). The following western states provide for constitutional amendment and statutory enactment by initiative, unless otherwise indicated. Alaska – Alaska Stat. [section] 15.45.010 to 245 (no initiative for constitutional amendments); Arizona – Ariz. Const. art. 4, pt. 1, [section] 1; art. 22, [section] 14; Ariz. Stat. [section] 19-101 to 144; California – Cal. Const. art. 2,3, 8, 10; Colorado – Colo. Const. art. 5, 1 and Colo. Rev. Stat. [section] 1-40-101 to 133 (1980 & Supp. 1993); Idaho – Idaho Code [section][section] 34-1802, 34-1804 to -1806, 34-1809, and 34-1813 (no initiative for constitutional amendments); Montana – Mont. Const. art. 3, [section] 4 and Mont. Code Ann. [section] 13-27-101, -105; Nevada – Nev. Const. art. 2, [section] 2, art. 19, [section] 2, 6 and Nev. Rev. Stat. [section][section] 295.015(2), 295.025(1), 255.035(1), 295.025(2); Oregon – Or. Const. art. 4, [section] 1 and Or. Rev. Stat. [section] 254.030; Utah – Utah Code Ann. [section][section] 20-11-2, 20-11-3, 20-11-6 (no initiative for constitutional amendments); Washington – Wash. Const. amend. 7, 26, 30 and Wash. Rev. Code [section][section] 29-79-010, -020, -120, -130 (no initiative for constitutional amendments); and Wyoming – Wyo. Const. art. 3, [section] 52 and Wyo. Stat. [section][section] 22-24-101, -103, -115, -120 (no initiative for constitutional amendments).

[21] The following midwestern states provide for constitutional amendments and statutory enactment by initiative, unless otherwise indicated. Illinois – Ill. Const. art. 14, [section] 3 (amendment of Art. IV only, statutes and referendum on public policy issues); Michigan – Mich. Const. art. 12, [section] 2, art. 2, [section] 9 and Mich. Comp. Laws [section][section] 168.471 – 472; Missouri – Mo. Const. art. 3, [section][section] 50, 51, 52 and Mo. Rev. Stat. [section] 126.051, 126.141; Nebraska – Neb. Const. art. 3, [section][section] 2, 4; North Dakota – N.D. Const. art. 105; Ohio – Ohio Const. art. 2, [section] 1 and Ohio Rev. Code Ann. [section] 2519.01 (Anderson or Baldwin 19); Oklahoma – Okla. Const. art. 5, [section][section] 2, 3; and South Dakota – S.D. Const. art. 23, [section] 1, art. 3, [section] 1 and S.D. Codified Laws Ann. [section] 2-1-1.

[22] Maine provides only for statutory enactments by initiative – Me. Const. art. IV, pt. 3, [section][section] 18, 19. Massachusetts provides for both constitutional amendment and statutory enactment by initiative – Mass. Const. amend. art. 48, Init. pt. 2, [section][section] 3, 7, Init. pt. 4, [section] 2, Init. pt. 5, [section] 1, Gen. Prov. pt. 5, Gen. Prov. pt. 6.

[23] Arkansas provides both for constitutional amendment and statutory enactment by initiative – Ark. Const. amend. 7 and Ark. Code Ann. [section] 2-208. Florida provides only for constitutional amendment by initiative – Fla. Stat. [section] 100.371.

[24] In addition, many local jurisdictions throughout the states have initiative provisions that are applicable only locally and are not addressed here.

[25] Because referenda placed on the ballot by a state or local government still require approval by the electorate and once passed are generally treated the same as initiated measures, in this article no emphasis will be placed on the distinction between referenda and citizen initiatives when discussing the impact of alternative or counter-initiative measures.

[26] Inaugural Address of Governor Hiram Johnson, reprinted in F. HICHBORN, THE STORY OF THE SESSION OF THE CALIFORNIA LEGISLATURE OF 1911, ii-iii app. (1911) cited in James E. Castello, Note, The Limits of Popular Sovereignty: Using the Initiative Power To Control Legislative Procedure, 74 CAL. L. REV. 491, 503 n.60 (1986). See also Charles M. Price, Initiative Qualifying In The States, 1898 – 1989: Variations in Usage, FAMILY, LAW & DEMOCRACY REPORT 4-5 (Feb. 1990) (“When the initiative process was added to the California Constitution in 1911, it was intended as a political tool to pry the state government from the grips of a monopoly, the Southern Pacific Railroad. But now many political experts maintain it is the initiative [process itself] that erodes state government.”).

[27] Price, supra note 26.

[28] Jorge Casuso, California gets dizzy from initiative fever, CHICAGO TRIBUNE, Sept. 30, 1990, at C1.

[29] Id.

[30] States that provide for both the statutory and constitutional amendment initiative tend to have more initiative activity than states that provide for only one or the other. All of the top five provide for both. Price, supra note 26.

[31] Id.

[32] In 1914, California voters were also asked to approve 11 bond measures placed by the Legislature on the ballot. This is testimony to the heavy use of initiatives in their early years.

[33] Aaron Wildavsky, Representative vs. Direct Democracy: Excessive Initiatives, Too Short Terms, Too Little Respect for Politics and Politicians, 2:3 THE RESPONSIVE COMMUNITY 31, 33 (Summer 1992).

[34] Calfarm Insurance Co. v. Deukmejian, 771 P.2d 1247 (Cal. 1989). See also Taking All Too Much Initiative; Government By the People? Or By Judges?, LOS ANGELES TIMES, Sept. 27, 1990, at B6.

[35] Information prepared by the Colorado Legislative Council Staff as of April 1992 did not indicate whether some of the 1912 amendments may have been referred by the legislature. The second highest number of constitutional amendments on the ballot in Colorado was nine in 1974.

[36] Petitions Everywhere, BOULDER DAILY CAMERA, May 27, 1992, at 8A (Editorial) (“As the number of initiatives grows, so does the potential for confusion. The time to start minimizing the confusion is now, during the petition season. The people can keep the number of ballot initiatives under control by declining to sign any petition merely because the idea ‘sounds interesting,’ because its backers claim ‘a right to put their ideas on the ballot,’ or for any other reason other than a belief in the proposal itself.”).

[37] “Many voters are disaffected by the Legislature, too, which is why groups resort to initiatives in the first place.” Gordon E. Baker, a political scientist at the University of California in Santa Barbara.

“Kelly Kimball, president of Kimball Petition Management in Los Angeles, which has made a tidy profit by charging industry groups and other special interests from 70 cents to $1.50 a head to gather signatures on all manner of measures, said: ‘The initiative process is not there because the legislators are doing their jobs. If they were doing what they were supposed to do, I would be out of business.'” Robert Reinhold, Ballot Becomes a Burden in California, N.Y. TIMES, Sept. 24, 1990, at A16.

However, following the November 1990 ballot sporting thirteen initiated measures, a L.A. Times Poll found that “more than seven in ten Californians think the initiative process has ‘gone out of control.'” Initiatives: The Monster That Threatens California Politics; Out of Control, the Process Itself Now Needs to be Reformed, L.A. TIMES, Nov. 12, 1990, at B4.

[38] “There is no clear support for restricting the number of initiatives on the ballot, increasing the signature threshold, or prohibiting the use of paid signature gatherers.” p. 462 & 464 [reference?]

[39] Amy Downs, Citizen Democracy, Citizen Sponsored Initiatives: Filling The Legislative Vacuum On Discrimination Issues, NATIONAL CIVIC REVIEW 413, 413 (Fall 1991).

[40] Petitions, supra note 36.

[41] Bill Hornby, Lending a hand in running a democracy, THE DENVER POST, ?date, discussing Thomas Cronin and Robert D. Loevy, COLORADO POLITICS AND GOVERNMENT: GOVERNING THE CENTENNIAL STATE (University of Nebraska Press – due out in spring 1993?)

[42] This article will not attempt to address comprehensibly the need for reform. As some of the anecdotes included in this article indicate, the initiative process and the use of counter-initiatives have been subject to manipulation and abuse. However, to discuss theory, this article will presume, as do the courts, that voters know what they are voting for. Some reforms — e.g., those focused on disclosure requirements — may make this assumption a reality.

[43] In 1993, the Colorado legislature amended Colo. Rev. Stat. [section] 1-40-109 (formerly [section] 1-40-105) (Supp. 1993). The amended statute requires signatures from eight percent of the legal voters to qualify a petition for the ballot. The previous version of the statute only required signatures from five percent of voters who cast votes at the preceding election (Supp. 1992).

[44] Reinhold, supra note 37 (quoting Eugene C. Lee, political scientist at the University of California at Berkeley).

[45] Pacific State Telephone and Telegraph Co. v. Oregon, 223 U.S. 118 (1912). The Court concluded that the initiative process was simply a form of government in addition to the republican form, and it neither eliminated nor superseded the representative process.

[46] CALIFORNIA COMM’N ON CAMPAIGN FINANCE, DEMOCRACY BY INITIATIVE: SHAPING CALIFORNIA’S FOURTH BRANCH OF GOVERNMENT 302 (1992).

[47] Eule, supra note 3 at 1546.

[48] Fischer, 41 HASTINGS at 88. [check] “Judicial acceptance of ballot propositions has been essentially unquestioning and laudatory of the process.” Fischer p. 68 “[I]t is ‘the duty of the courts to jealously guard this right of the people. . . [I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.” Associated Home Builders v. Livermore, 557 P.2d 473, 477 (Cal. 1976).

But c.f. City and County of San Francisco v. Farrell, 648 P.2d 935 (Cal. 1982) (The California Supreme Court narrowly interpreted Proposition 13, the Harvis-Gann Initiative, to only a limited class of taxes and sharply reduced the effectiveness of the requirement that the taxes be approved by a two-thirds majority.). People v. Superior Court (Engert), 647 P.2d 76 (Cal. 1982) (Ballot initiative setting aside a case that invalidated the death penalty was not controlling.).

[49] E.g., Legislature of the State of California v. Deukmejian, 35 Cal. 3d 658, 683 (1983) (Richardson, J., dissenting).

[50] At one time, article 6, section 1 of the Colorado Constitution restricted the ability of lower courts in Colorado to invalidate initiatives. Although this Colorado provision is no longer in effect, the Nevada Constitution still contains such a restriction. NEV. CONST. art. XIX, [section] 1, cl. 2. Nevada courts, however, have not considered this provision a bar of their ability to review initiatives. Eule, supra note 3, at 1546 n. 184.

[51] See generally Eule, supra note 3.

[52] Legislature of the State of California v. Deukmejian, 34 Cal. 3d 658, 683 (1983) (Richardson, J., dissenting) (initiatives entitled to “very special and very favored treatment”) (emphasis in original); James v. Valiterra, 402 U.S. 137, 141 (1971) (provisions for referenda demonstrate “devotion to democracy”).

[53] Donald S. Greenberg, The Scope of the Initiative and Referendum in California, 54 CALIF. L. REV. 1717, 1747-48 (1966).

[54] Nordlinger v. Hahn, 112 S. Ct. 2326 (1992). See also Amador Valley Joint Union High School Dist. v. State Board of Equalization, 22 Cal. 3d 208, 259 (1978) (“It is our solemn duty to ‘jealously guard’ the initiative process, it being ‘one of the precious rights of our democratic process'”).

[55] A rare alternative view was taken in Citizens Against Rent Control v. City of Berkeley, 454 U.S. 290, 295 (1981) (“In the courts’ view, it is irrelevant whether a law is enacted by a legislative body or by the people. Voters have no more right to violate the constitution than does a legislative body.”).

[56] Severability clauses are inserted in anticipation of litigation. “Senate President Pro Tempore David Roberti, however, tried to negate the use of severability clauses in initiatives. He introduced a constitutional amendment which, among other things, prohibited severability clauses in initiatives (Senate Constitutional Amendment 9, 1991). This proposal would have meant that if any part of an initiative were declared unconstitutional by the courts, the entire initiative would be invalid. Roberti dropped this provision from the measure.” DEMOCRACY BY INITIATIVE, supra note 46 at 302 n. 6.

[57] See Chemical Specialties Mfrs. Ass’n v. Deukmejian, 227 Cal. App. 3d 663 (1991) (Prop. 105, passed in November 1988, required disclosures in a number of unrelated areas, thus it was considered in violation of California’s single-subject rule); see also Taxpayers To Limit Campaign Spending v. Fair Political Practices Comm’n, 799 P.2d 1220 (Cal. 1990); Estate of Gibson v. Bird, 139 Cal. App. 3d 733 (1983).

[58] Estate of Gibson (Prop. 5 passed in June 1982, was invalidated because its dates of effect for repealing the gift and inheritance tax conflicted with Prop. 6) and Taxpayers (Prop. 68, passed in June 1988, was invalidated because it established a comprehensive campaign finance system in conflict with Prop. 73).

[59] See, e.g., Walker v. State Bd. of Elections, 359 N.E. 2d 113 (Ill. 1976) (courts will favor a construction that will render every provision operative); De’sha v. Reed, 572 P.2d 821 (Colo. 1977) (each word should be given proper effect and as far as possible each provision must be harmonized with every other).

[60] The Supreme Court of Michigan rejected an argument that an initiated proposal was on a “higher plane” than a conflicting proposal submitted to voters by the legislature. The legislative proposal received the highest number of affirmative votes, and therefore prevailed. In re Proposals D & H, 339 N.W.2d 848 (Mich. 1983).

[61] Sanford v. Garamendi, 284 Cal. Rptr. 897 (Cal. Ct. App. 1991).

[62] In re Martin, 245 S.E.2d 766 (N.C. 1978).

[63] The “standard rules of statutory construction . . . requiring that statutes be harmonized wherever possible, should not apply to initiatives because initiatives do not go through the same legislative compromise process of hearings and debates as do statutes and other legislation. . . . [U]nlike the initiative process, conflicting statutes are not passed simultaneously by the legislature. . . .” Note, supra note 5 at 174, citing Brief Amicus Curiae of California Teachers Association in Taxpayers, supra note (No. S-012016).

[64] State ex rel. City of Princeton v. Buckner, 377 S.E.2d 139 (W. Va. 1988).

[65] State ex rel. Kanawha County Bldg. Comm’n v. Paterno, 233 S.E.2d 332 (W. Va. 1977).

[66] Floridians Against Casino Takeover v. Let’s help Florida, 363 So. 2d 337 (Fla. 1978)(disapproving/reversing Weber v. Smathers, 338 So. 2d 819). See also Union Electric Co. v. Kirkpatrick, 678 S.W. 2d 402 (Mo. 1984)(if initiated law conflicts with a constitutional provision, if adopted it becomes a law subject to constitutional challenge).

[67] See infra notes 74-79 and accompanying text.

[68] E.g., in 1988 the Washington state legislature used this method to propose an alternative to a toxics initiative. The citizen initiative polled more votes. DEMOCRACY BY INITIATIVE at 310.

[69] ME. REV. STAT. ANN.

[70] Arizona, Arkansas, California, Colorado, Idaho, Massachusetts, Michigan, Missouri, Nebraska, Nevada, North Dakota, Ohio, Utah, and Washington.

[71] In State ex rel. Nelson v. Jordan, 450 P.2d 383 (Ariz. 1969), voters approved two propositions placed on the ballot by the legislature. One measure increased the term of all statewide officials, including the state auditor. The other measure, approved by approximately 60,000 fewer votes, abolished the office of state auditor. The court found that “where two provisions of the constitution are in conflict, it is the duty of the court to harmonize both so that the constitution is a consistent workable whole.” Id. at 386. The court thus held that the state auditor’s office was abolished and that the terms for all other statewide officers were increased.

[72] City of Glendale v. Buchanan, 578 P.2d 221 (Colo. 1978). “Every reasonable presumption is to be indulged in favor of a constitutional amendment which the people have adopted at a general election.” Id. at 224.

[73] Robert G. Stewart, The Law of Initiative Referendum in Massachusetts, 12 NEW ENG. L. REV. 455, 501 (1977).

⁷⁴ 355 N.E.2d 806 (Mass. 1976).

[75] In this system only one of the two measures can be enacted. Stewart, supra note 73 (citing MASS. CONST. amend. XLVIII and LEGISLATIVE RESEARCH COUNCIL, REPORT RELATIVE TO REVISING STATEWIDE INITIATIVE AND REFERENDUM PROVISIONS OF THE MASSACHUSETTS CONSTITUTION, H.5435 at 88-89 (1975)).

[76]Stewart, supra note 73 at 500 (citing 2 DEBATES IN THE MASSACHUSETTS CONSTITUTIONAL CONVENTION OF 1917-1918).

[77] Buckley, 355 N.E.2d at 809.

[78] Id. at 811.

[79] Id.

[80] In re Interrogatories Propounded by the Senate Concerning House Bill 1078, 536 P.2d 308, 313 (Colo. 1975).

[81] Id. at 320.

⁸² 543 P.2d 731 (Alaska 1975).

[83] ALASKA CONST. art. XI, [section] 4 and ALASKA STAT. [section] 15.45.210.

[84] Warren, 543 P.2d at 737.

[85] Id. at 739.

[86] Id.

⁸⁷ 799 P.2d 1220 (Cal. 1990).

[88] Id. at 1221.

⁸⁹ 852 P.2d 1 (Colo. 1993).

[90] Id. at 6.

[91] Id. at 8-9.

[92] Id. at 10-11.

[93] Id. In his dissent, Justice Vollock notes that the “overriding concern” should be to “ensure that the will of the People would be manifested.” Id. at 21. Based on the plain language of the amendments “considered against the backdrop of their accompanying ballot titles,” Justice Vollock concludes that the amendments are “mutually exclusive” and it is just the majority’s interpretation of the amendment that creates implicit conflict. Id. at 14 of dissent.

[94] See, e.g., Concerned Citizens v. City of Carlsbad, 204 Cal. App. 3d 937 (1988)[check case].

[95] Van de Kamp v. Eu (Cal. Sup. Ct. Case No. S016240). Briefs of the parties are available in the author’s files.

[96] Taxpayers, 799 P.2d at 1246 n.1 (Mosk, J., concurring and dissenting).

[97] “Conflicting Law. Pursuant to Article II, sec. 10(b) of the California Constitution, if this measure and another measure appear on the same ballot and conflict, and this measure receives more affirmative votes than such other measure, this measure shall become effective and control in its entirety and said other measure shall be null and void and without effect. If the constitutional amendments contained in this measure conflict with statutory provisions of another measure on the same ballot, the constitutional provisions of this measure shall become effective and control in their entirety and said other measure shall be null and void and without effect irrespective of the margins of approval. This initiative is inconsistent with any other initiative on the same ballot that enacts any tax, that employs a method of computation, or that contains a rate not authorized by this measure, and any such other measure shall be null and void and without effect.”

[98] Proposition 136’s conflict provision could have nullified Proposition 128 (“Big Green”, an environmental measure), Proposition 129 (comprehensive crime control), Proposition 133 (safe streets), and Proposition 134 (consumer-backed nickel-a-drink liquor tax), even though there was no substantive conflict between the majority of the provisions of these measures and those of Proposition 136.

[99] Van de Kamp v. Eu briefs. Brief of opponents at 22 (“No purpose relevant to [Prop. 136] is served by invalidating all substantive provisions of ‘conflicting’ measures.”).

[100] Lenny Goldberg, campaign director for Californians Against Initiative Fraud, an anti-Proposition 136 organization, said Proposition 136 had collected $5 million from alcohol and tobacco industries seeking to defeat a competing nickel-a-drink initiative. Hallye Jordan, Proposition 136 Would Sabotage Tax Hikes Contained in Other Initiatives on the Ballot, 103 L.A. DAILY J., Oct. 31, 1990, at 11, col. 1.

[101] In the November 1992 election in Colorado, a similar “winner-take-all” provision was included in a Colorado Association of Commerce and Industry (CACI) petition for a ballot measure introduced as an alternative to Douglas Bruce’s “Taxpayer’s Bill of Rights” (Amendment 1). In contrast to Proposition 136, section 9 of the CACI initiative attempted to nullify a narrow range of initiatives by deeming only other measures “limiting governmental taxes, revenues, appropriations, or expenditures. . . .” to be in conflict. Although Bruce’s Amendment 1 was adopted by voters, the conflict provisions in the CACI initiative were never put to the test because the CACI measure did not garner enough signatures to be placed on the ballot.

[102] Ark. Const. amend. 7; Mich. Const. art. 2, [section] 9; Mo. Const. art. 3, [section] 51; Neb. Const. art III, [section]   ; Nev. Const. art. 19, [section] 2, [paragraph] 3.2; N.D. Const. art. III, [section] 8; Ohio Const. art. II, [section] 1(b); Utah Code Ann. [section] 20-11-20 (1987).

[103] CALIFORNIA COMM’N ON CAMPAIGN FIN., supra note 46.

[104] Ariz. Const. art. 4, Pt. 1, [section] 12; Colo. Rev. Stat. [section] 1-40-123 (Supp?) (# changed by SB93-135 effective 5/4/93) (formerly [section] 1-40-113 not 116, which applies to ordinances) (“[I]n case of adoption of conflicting provisions, the one which receives the greatest number of affirmative votes shall prevail in all particulars as to which there is a conflict.”); Idaho Code 0167 34-1811 (1981); Mass. Const. art. 48, Pt. 6, [section] VI; Neb. Const. art. III, [section] 2.

[105] In re Initiative Petition No. 314, 625 P.2d 595 (Okla. 1980) (provisions of constitution on same question should be construed together and harmonized with each other so far as possible); McCarney v. Meier, 286 N.W.2d 780 (N.D. 1979) (court must give effect to every provision and reconcile apparent inconsistent provisions); County Commissioners v. Oakland County Executive, 296 N.W. 2d 621 (Mich. App. 1980) (provisions relating to same subject matter must be read as a whole, in context, with an eye to harmonize them and give effect to all). DEMOCRACY BY INITIATIVE at 310.

¹⁰⁶ 189 Cal. Rptr 201 (1983).

¹⁰⁷ 799 P.2d 1220 (Cal. 1991).

[108] Section 10(b) provides that “those of the measure receiving the highest affirmative vote shall prevail.” CAL. CONST. [section] 10(b). The Taxpayers court acknowledged “those” could refer only to conflicting provisions and the non-conflicting provisions could be harmonized. Instead, the court determined that in a fundamental conflict, those would include all provisions (i.e., the entire measure) receiving the highest affirmative vote, and the entire measure would prevail over the counter-measure. Taxpayers, 799 P.2d at 1233-34.

[109] “In these circumstances, to patch together the nonconflicting provisions of measures that were expressly offered in opposition to each other would usurp the legislative role, creating, in the worst scenario, a Frankenstein’s monster whose existence the voters never contemplated.” Taxpayers, 799 P.2d at 1245 (Mosk, J., concurring and dissenting).

[110] Id. at 1233.

[111] Id. at 1234-35.

[112] Id. at 1235.

[113] The Taxpayer court noted:

“It does not follow that these voters attempted to analyze the measures to
ascertain which provisions conflicted, understood that the scheme ultimately
operative would be an amalgam comprised of provisions of both, or anticipated
the results that the Court of Appeal and the FPPC reached. . . . The obstacles
and uncertainties facing a court when called upon to reconcile provisions of
competing initiative measures are illustrated by the divergent conclusions.”
Id. at 1229-30.

[114] Id. at 1236.

[115] Id.

[116] Id.

[117] People v. Cortez, 6 Cal. App. 4th 1202; People v. Otto, 4 Cal. App. 4th 1642 (1991); People v. Barrow, 233 Cal. App. 3d 721 (1991).

[118] The conflict between Proposition 4 on the 1982 ballot, dealing with the requirements for obtaining bail, and Proposition 8 in the same election, characterized as a victims bill of rights, were minor.

¹¹⁹ Yoshisato v. Superior Court (People), 831 P.2d 327 (Cal. 1992) (complementary or supplementary measures should be compared division by division for purposes of determining conflicts).

[120] Proposition 114 received the most votes in the June 1990 election and expanded the definition of “peace officers” for purposes of death penalty sentencing. Proposition 115 was a comprehensive criminal justice reform package designed to speed and streamline criminal convictions.

[121] Id. at 333.

[122] Id. at 333-34.

[123]

[124] Even so simple a decision as recognition of the Martin Luther King Holiday in Arizona provided more than a yes-no choice. On the 1990 ballot, electors were given two alternative initiatives from which to choose. One would have recognized Martin Luther King’s birthday as a state holiday in lieu of Columbus Day, the other would have holidays for both King’s birthday and Columbus Day. Both initiatives were defeated.

[125] “Condorcet demonstrated that for any set of voting choices, alternative outcomes would emerge depending on how the choices were presented to the voters. Arrow generalized this finding to be a fundamental problem of all collective decisionmaking. . . .” Richard H. Pildes & Elizabeth S. Anderson, Slinging Arrows at Democracy: Social Choice Theory, Value Pluralism, and Democratic Politics, 90 COLUM. L. REV. 2121, 2129-35 (1990).

[126] KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d. ed. 1963). “No method of voting can avoid the possibility of such paradoxical results.” Farber & Frickey, 65 TEX. L. REV. at 902.

[127] William H. Panning, Formal Models of Legislative Processes, in GERHARD LOEWENBERG, SAMUEL C. PATTERSON, MALCOLM E. JEWELL, HANDBOOK OF LEGISLATIVE RESEARCH 673 (1985).

[128] KENNETH J. ARROW, SOCIAL CHOICE AND INDIVIDUAL VALUES (2d ed. 1963) “In theoretically searching for democratic procedures that would aggregate the given preferences of individuals into a single collective outcome, Arrow discovered that the paradox turns out to be an inescapable feature of any decision-making process likely to be considered even minimally fair.” Slinging Arrows, supra note __ at 2131.

[129] The following is a simple example of Arrow’s theorem as presented in Daniel A. Farber and Philip P. Frickey, The Jurisprudence of Public Choice, 65 TEX. L. REV. 873, 902 and n. 172 (1987):

“[A]ssume that three children — Alice, Bobby, and Cindy — have been pestering their parents for a pet. The parents agree that the children may vote to have a dog, a parrot, or a cat. Suppose each child’s order of pet preferences is as follows: Alice — dog, parrot, cat; Bobby — parrot, cat, dog; Cindy — cat, dog, parrot. In this situation, if pairwise voting is required, then majority voting cannot pick a pet. . . . A majority (Alice and Cindy) will vote for a dog rather than a parrot; a majority (Alice and Bobby) will vote for a parrot rather than a cat; and a majority (Bobby and Cindy) will vote for a cat rather than a dog.”

[130] Panning, supra note 127 at 674-75.

[131] “One of the implications of Arrow is the difficulty of even discerning majority preferences, let alone constructing a democratic theory based on the presumed inviolability of such preferences as revealed through elections. . . .[In some instances the theory] denies the presumptive legitimacy accorded to majoritarian outcomes . . . .[and raises] skepticism about whether any true majority preference may exist.” Issacharoff at 1882.

[132] Issacharoff at 1881.

[133] Hovenkamp at 92. Hovenkamp expands the Farber & Frickey pet scenario and illustrates how voting order and weight of votes will determine the choice of pet.

[134] Expanding the Farber & Frickey pet scenario shows how presentation of a ballot initiative can distort the outcome. The initiative could be drafted to provide the children would get a dog. Alice would vote “yes” because the dog was her first choice. Bobby and Cindy might vote “no” because the dog was not their first choice of pet, or they might vote “yes” simply because they wanted some pet and the dog initiative was the only choice available. In either event, Bobby and Cindy’s true choice is not reflected by the outcome of the vote.

[135] “Public choice . . .[is] simply the application of economics to political science. The methodology of public choice is that of economics, however. The basic behavioral postulate of public choice, as for economics, is that man is an egoistic, rational, utility maximizer.” D. MUELLER, PUBLIC CHOICE (1979)(cited in Farber & Frickey, 65 TEX. L. REV. at 878).

[136] Hovenkamp at 86.

[137] “The true insight of public choice theory concerns the advantage a well-organized, discrete, and insular minority will hold when faced with opposition of less intensity by a diffuse and amorphous majority.” Issacharoff, Polarized Voting and the Political Process: The Transformation of Voting Rights Jurisprudence, 90 MICH. L. REV. 1833, 1888 (1992).

[138] MAGLEBY

[139] Under the aegis of “tax limitation” and “The Taxpayer’s Bill of Rights,” author of Amendment 1 in the November 1992 election in Colorado, Douglas Bruce, a real estate investor, wrote in private perks such as prohibitions on all “new or increased transfer tax rates on real property” and on any new state property tax. In order to collect these taxes in the future, governmental entities will have the double burden of asking voters both to ratify a new tax and to rescind parts of Amendment 1, which is now part of the Colorado Constitution. Dale Oesterle, Bruce wrote mischief into Amendment 1, THE BOULDER DAILY CAMERA (November 28, 1992).

[140141] Landes & Posner, The Independent Judiciary in an Interest Group Perspective, 18 J. L. & ECON. 875, 877 (1975).

[142] Legislator’s “single minded [focus on] reelection” requires a “responsiveness to broad constituencies . . . and helps ameliorate the influence of special interests.” D. MAYHEW, CONGRESS: THE ELECTORAL CONNECTION at 5 (1974)(cited in Farber & Frickey, 65 TEX. L. REV. 888,889).

[143]

[144] Larry L. Berg & C.B. Holman, The Initiative Process and its Declining Agenda-setting Value, 11 LAW & POLICY 451 (1989).

[145] Berg & Holman at 451.

[146] Colorado Secretary of State Natalie Meyer, quoted in Mike McGrath, Sign of the Times, WESTWORD at 12 (June 10-16, 1992).

¹⁴⁷ 486 U.S. 414 (1988). The United States Supreme Court struck down, as unconstitutional, a Colorado statute that made paying petition circulators illegal in Colorado.

[148] Five measures in the 1990 general election had total contributions of over ten million dollars. Even at one million dollars, introducing a new initiative may be more cost effective than spending ten to twenty million dollars in contributions to advertise to defeat a measure. CALIFORNIA COMM’N ON CAMPAIGN FIN., supra note 44, at 266 Table 8.2, 270-71.

[149 150] MAGLEBY referenced in 105 L.A.D.J. p. 6 col. 6 (Jan. 14, 1992)

[151] Daniel H. Lowenstein, Campaign Spending and Ballot Propositions: Recent Experience, Public Choice Theory and the First Amendment, 29 U.C.L.A. L. REV. 506 (1982).

[152] Id. at ___.

[153] Berg & Holman at 465.

[154] Note supra at note 6, DEMOCRACY BY INITIATIVE, supra at note 46.

[155] CALIF.

[156] Note

[157] San Francisco Proposition O.

[158] Eule, supra note __, at 1571.

[159]

[160] Magleby

[161] Eule, supra note ___, at 1571 (addressing Proposition 103, the complex automobile insurance initiative supported by Ralph Nadar in the 198 statewide election in California).

[162] In some instances, e.g., Proposition on the 1990 California ballot, the wording of a counter-initiative is identical in parts with that of the original initiative. Rather than an attempt to obfuscate, this strategy can simplify interpretation of the initiatives. First, it aids a court’s determination that the two initiatives present separate comprehensive regulatory schemes. Second, the distinctions between alternative proposals can be highlighted by focusing on how the language differs in key parts.

[163] In digital recording, each note is achieved by a binary computer choice. If only one choice is provided, the sound is distorted and incomplete. As the number of choices is increased, a finer and finer resolution is achieved.

[164] CALIF. COMM’N, Note.

[165] In this way, a majority vote on an initiative is distinguishable from a legislative majority. In any given legislative session, a majority must be crafted from the same assembly. Bills are passed sequentially, and the same body is presumed to have been informed of and voted on the same measures. In contrast, initiative majorities can consist of totally different voters. Unless a supermajority is required, a non-vote reduces the total pool and permits uncontested initiatives to be enacted into law by a very small plurality of voters. CALIF. COMM’N ON CAMPAIGN FIN., supra note ___, at 253. Thus, it would be possible, as may be the case in Taxpayers, to have two competing initiatives pass by a majority of those voting on the initiatives with little or no overlap in the pool of voters from which the majority is derived.

[166] Taxpayers

[167] The _____ reported that 6,037,468 voters cast ballots in the June 7, 1988 election.

[168] In fact 2,720,605 is only 45% of the total number of votes cast.

[169] A frequent phenomenon in initiative voting is voter ___ Magleby. By failing to vote either “Yes” or “No” on a measure, voters express no opinion at all.

[170] Proposition 68 campaigns urged against voting for Proposition 73, labeling it a “trick to defeat the ‘real’ campaign reform.”

Taxpayers at 1229.

[171] In choosing between alternatives voters could register preferences by “bullet voting” or voting for only the initiatives for which they felt strongly. Generally, this would consolidate more votes on the initiative favored by most voters. Only if voters divided “Yes” votes between similar measures and failed to vote “No” on the opposing measure could a true majority be diluted sufficiently to prevent the measure not supported by the majority to prevail. In this instance, the opposing measures might have more votes than the two similar measures if their votes were combined.

[172] Similarly, voters may want tax reform and will vote yes for any tax reform initiative rather than choosing no reform at all.

[173] “Marat we’re poor and the poor stay poor
Marat don’t make us want any more
We want our rights and we don’t care how
We want our Revolution NOW”
PETER WEISS, MARAT SADE 57 (1970) (punctuation as in original).

[174] Counter-initiatives might also put voters on notice when they are not informed. More than 10% of voters who went to the polls in California on November __, 1990 didn’t even bother to vote on any of the record number of propositions. June ballot, 105 L.A. DAILY J., Jan. 14, 1992, p. 6, col. 6. Furthermore, the number of initiatives has dropped on future California ballots and there were none on the June 1992 ballot, a first since June 1964, before initiatives resurged.

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by Evan Ravitz, director, Voting by Phone Foundation

Coercion and vote-buying could be a problem with any voting outside of protected polling places. However, it isn’t, with either absentee or all-mail voting:

In the City of Boulder in 1992, 9,642 cast absentee ballots out of a total of almost 48,000 votes-more than 20%. According to Boulder County Elections Office Manager Nancy Wurl, there has never been a complaint lodged about any coercion of an absentee voter, in her 20 years there.

The U.S. GAO November 1990 report “VOTING: Some Procedural Changes and Informational Activities Could Increase Turnout” quotes an Oregon survey of 1,429 mail election voters that showed none felt pressured although half voted with others present and a quarter discussed their votes.

State Legislatures magazine, December 1992 reports on a national mail ballot election held by the Teamsters for a “fiercely fought contest among three slates of candidates representing the old guard and reformers.”-very different from the non-partisan or referendum elections typically held by mail. No coercion was reported, perhaps because an earlier attempt to collect ballots to win the delegate electi ons was reported by the rank and file. It takes only one honest citizen to bust a vote-buying or arm-twisting attempt.

Phone voting can enable one to escape the coercion the physical absentee or mail ballot allows. Just vote from a phone away from possible coercion. If someone later gets your ID numbers or physically coerces you, it has no effect- the system only lets you vote once. And remember, phone voting will be optional: if you fear coercion, vote at the polls!

City Council Member Sally Martin points out that coercion was used as an argument to deny women the vote. It was stated that husbands would be getting two votes each. It hasn’t turned out that way.

For copies of the sources mentioned or for other information, email me at:
evanr@vote.org

MAJOR CONCERNS

1. Q: Security. Doesn’t the public programming used by Voting by Phone lend itself to penetration by computer hackers intent on changing the results of the election or even just creating havoc?

A: Phone voting accepts only the 12 touch-tones (or 10 dial phone choices), not computer (modem) language. A `hacker’ can’t penetrate the system this way any more than they can with the buttons on an ATM machine, though our system requires more identification than an ATM.

The system will give you perhaps 3 chances to identify yourself correctly, then it hangs up. ‘Havoc’ in terms of tying up the system is prevented by not accepting more calls from the same phone (using caller ID, the non-blockable 911 kind) for a period of time.

2. Q: Fraud. What will prevent individuals from voting on others’ numbers? This system makes the old practice of selling votes particularly easy and very difficult to detect. It is one thing for an individual to go into a number of poling places impersonating many voters. It is far easier to do this by phone.

A: The County Clerk forgets to mention how easy it is to buy or coerce absentee votes. When I get my absentee ballot in the mail, I can sign it and sell it blank. Yet, a study of all-mail elections conducted in 1984 by the Survey Research Center at Oregon State University involving 1,429 voters in 7 counties in Oregon indicates almost no fraud or abuse. According to a GAO report, this is the only such study. Absentee voting as well seems non-controversial in this regard.

Voting by phone makes it possible to publish how every voter voted without revealing their identity- by telling people the order in which they voted, and publishing them serially. This will prove to people for the first time that their votes were recorded correctly. By publishing these complete election results on computer diskette, anyone with access to a computer can verify that the announced totals are correct as well. This will gain confidence in a new system.

OTHER CONCERNS

1. Q: How will voters be informed of their individual voter number? How can we be assured this number reaches each voter and that only the voter is using it? What if a voter doesn’t receive his or her number?

A: The easy way to make sure only the proper voter gets the ID number is to have them come down to get it themselves. This makes phone voting optional, like absentee voting, and phases in the new system. The handicapped should be allowed to request that it be mailed, also like an absentee ballot.

2. Q: Many older and poor individuals do not have touch-tone phones. How will Voting by Phone provide for them?

A: There is equipment that allows dial or pulse phones to access touch-tone services. Or, any touch-tone phone in the world could be used. Phone booths are much more widespread than voting booths.

3. Q: Many people, particularly the elderly, have problems with touch-tone phone menus. When a voter has a problem in a polling place, there are judges and poll watchers there to give assistance. How is this possible with Voting by Phone?

A: Remember, phone voting is optional with our proposal. When a person comes in to get their ID number, they can request a demonstration of the previous election using a phone. Plus, our proposal requires providing a sample ballot so you can see instructions and make your choices before you call and vote, which will save much time. Further instructions could be provided by pressing * or #.

4. Q: How will spoiled ballots be accommodated?

A: If a person hangs up or is disconnected before completing the process, the vote is not counted but recorded in a separate computer file, as part of the audit trail.

5. Q: How will the system be tested prior to the election to ensure that it works properly?

A: The system can be tested by having people vote in various ways and then examining the results, just as systems are currently.

6. Q: How will the canvas board be able to canvass the vote? What audit trail will be created that will assist them in this?

A: The canvass board integrates the votes from the voting computer, absentee votes, etc. Phone votes would be one more set of results to add in. Each vote is recorded individually for the audit trail.

7. Q: What measures can be taken to eliminate the possibility of phone outages anywhere in the entire area using the system?

A: By allowing phone voting during the entire early voting period (24 days in Colorado), the chance of an outage preventing someone from voting can be made virtually zero.

8. Q: How will the system identify the state house and senate districts, RTD district, etc. in which the voter is eligible to vote?

A: The system will have a record for the proper district races each voter is eligible to vote in, based on address, just as currently- it’s already in the computerized registration system.

9. Q: How will voters who moved but didn’t make the address change to their voter record be able to vote in the races appropriate for their new address?

A: The voter will go to the County Building, as they must currently, to change their address and the record of which district races they are eligible for. If this is a problem for technical reasons while the election is in progress, they can vote the old way.

10. The instructions for the November 1990 test were inadequate. For example, voters were not told that the entering of their name had to be followed by a #.

A: The reason the demonstration instructions didn’t tell voters to follow their name with # is because they didn’t have to! We set it up so that after 4 seconds, the computer considered the name input finished. This was a demonstration only. This question shows that the County Clerk didn’t try it herself, nor did her “informants”.

11. Q: Many registered voters who used the system were told “We can’t find you”. In fact, I do not know of any registered voters who were acknowledged as being registered.

Perhaps the voters were registered after we bought the computer tape from the County. We couldn’t afford to buy a new one for $42 every day and convert it to PC format. Hundreds of voters were acknowledged as registered. The County Clerk should call 442-2625 and try it herself- our demo has run flawlessly nearly 24 hours a day for over 6 months. [No longer- editor].

There was one bug last year that prevented people with names of less than 3 letters from being recognized for several days, which we fixed within hours of being notified. People with call waiting have problems if someone calls them while voting. They can disable the call waiting by dialing *70 before they dial our number.

We may not have all the answers but we know they exist- otherwise phone banking, shopping and CU student registration wouldn’t have been around for decades. These all require identification, and are more complicated than mere vote counting. CU’s registration system is vastly more complicated. Most problems are problems with people, and the solutions involve proper personnel procedures to ensure everything is open and accountable.

WARNING: IT IS AGAINST THE LAW:
For anyone to sign any petition with any name other than his or her own or to knowingly sign his or her name more than once for the same measure or to sign such petition when not a registered elector.

DO NOT SIGN THIS PETITION UNLESS YOU ARE A REGISTERED ELECTOR: TO BE A REGISTERED ELECTOR, YOU MUST BE:
1. At least eighteen years of age.
2. A citizen of the United States.
3. A resident of the state of Colorado and have resided in the state at least thirty-two days.
4. A resident of the municipal election precinct in which you live for at least thirty-two days.
5. Registered to vote pursuant to part 2 of article 2 of title 1, Colorado Revised Statutes.

Do not sign this petition unless you have read or had read to you the text of the proposal in its entirety and understand its meaning.

* * *

PETITION FOR A SPECIAL ELECTION TO AMEND THE CHARTER OF THE CITY OF BOULDER

We, the undersigned registered voters of the City of Boulder, demand, by the power vested in us by the Constitution and the laws of the State of Colorado and the Charter of the City of Boulder, according to Article II, Part 2 (Municipal Home Rule), Section 31-2-210 of the Colorado Revised Statutes, “procedure to amend or repeal charter,” that Section 33 of the Charter of the City of Boulder, “Voting Machines,” be amended to allow the voters in municipal elections to cast their votes by telephone. We demand that a special election be held on November 2, 1993 and appoint the following five registered voters of the City of Boulder to represent us in all matters affecting this petition or the election it seeks:

Evan Ravitz
Roger Olson
Judith Mohling
Lorna Dee Cervantes
Barry Satlow

We designate the following ballot title:

SHALL THE BOULDER CITY CHARTER BE AMENDED TO REQUIRE THAT VOTERS BE ALLOWED TO VOTE BY TELEPHONE IN ALL MUNICIPAL ELECTIONS GOVERNED BY THE CHARTER (INCLUDING VOTING FOR CITY COUNCIL AND ON INITIATIVES, RECALLS, AND REFERENDA), PROVIDED THAT TELEPHONE VOTING IS FIRST FOUND CONSTITUTIONAL IN AN ACTION FOR A DECLARATORY JUDGMENT, WITH THE CITY PAYING THE REASONABLE ATTORNEY FEES AND COSTS OF THAT ACTION?

YES

NO
We propose that Section 33 of the charter be amended as follows:

1. The following title shall be substituted for the existing title of Section 33:
2. The following NEW PARAGRAPH shall be added at the beginning of Section 33:
3. The existing first paragraph of Section 33 shall become the second paragraph, and the last sentence of this paragraph shall be amended as follows (language struck through is deleted and language in CAPITAL LETTERS is added):
4. The existing second paragraph of Section 33, now the third paragraph, shall be amended as follows to add references to telephone voting and to computer counting of paper ballots:
5. The following paragraph shall be enacted at the end of Section 33:

1. The following title shall be substituted for the existing title of Section 33:

Section 33. Voting by Machine or Telephone

2. The following NEW PARAGRAPH shall be added at the beginning of Section 33:

In all Boulder city elections governed by this charter, voters may cast their votes by telephone, using tone dialing or similar technology, and by pulse dialing if permitted by ordinance, unless an act of nature or similar emergency should make telephone voting impossible. Absentee ballots shall continue to be provided. The voting procedure shall provide for the secrecy and integrity of the ballot and allow voting for all candidates for whom the voter is entitled to vote, for candidates not entered in the election and for or against any question or proposition submitted to the voters.

3. The existing first paragraph of Section 33 shall become the second paragraph, and the last sentence of this paragraph shall be amended as follows (language struck through is deleted and language in CAPITAL LETTERS is added): The provisions of any and all state laws now or hereinafter in force relating to the use of voting machines OR TELEPHONE VOTING at elections, except as the council may otherwise by ordinance provide, shall govern the management of voting machines AND TELEPHONE VOTING in elections.

4. The existing second paragraph of Section 33, now the third paragraph, shall be amended as follows to add references to telephone voting and to computer counting of paper ballots:

All the provisions of this charter relating to elections and any and all laws of the State of Colorado now or hereafter in force and not inconsistent with the provisions of this charter shall apply to all elections held in election districts or precincts where voting machines are used BOULDER CITY ELECTIONS. Any provisions NO PROVISION of this charter heretofore in force which conflicts with the use of voting machines OR TELEPHONE VOTING as herein set forth IN THIS SECTION shall not apply to precincts ANY PRECINCT in which an election is conducted by the use of voting machines VOTING IS SO CONDUCTED. Nothing in this charter, however, shall be construed as prohibiting the use of separate paper ballots, if need be, WHETHER COUNTED BY COMPUTER OR BY HAND, for the purpose of TO conducting any special or general municipal BOULDER CITY election. in the City of Boulder.

5. The following paragraph shall be enacted at the end of Section 33:

Before the changes above become effective, a ruling on their validity under the Colorado Constitution shall be sought in an action for declaratory judgment filed in the district courts of this state within 60 days of their approval. Should the city attorney oppose this amendment in that action, the city shall pay the reasonable attorney fees and costs in that action of the initiators of this amendment. On a final judgment that this amendment is valid under the Colorado Constitution and exhaustion of all appeals, this paragraph shall be deemed repealed and shall be removed from the Boulder City Charter.