Scarcely had America copied from Australia her ballot system, when, becoming adept as Rome in absorbing from surrounding nations, she borrowed from the Swiss the Latin terms referendum and initiative, although the principles thereby expressed are as long established on this continent as English settlements. For centuries among Germanic peoples, there has been a steady transition of power. The right to petition the crown grew into legislation. Final power was transferred from king to parliament, and now in turn it is passing from the legislative branch directly to the electorate.
None of the colonial charters, except those of Pennsylvania, had any provision for amendment, and of the original States, only Massachusetts and New Hampshire submitted their constitutions to the people for ratification. By 1787, provision for amendment, thitherto wholly lacking in all State constitutions, unless Pennsylvania’s, was added to eight of them. The custom of amending constitutions by popular vote arose, and is now established in every State except Delaware. Thus, changing the organic law, upon legislative initiative, has become commonplace. The next step—to permit the people themselves to initiate the change and finally for them to ratify or reject and even to propose important laws,—was slower of acceptance. Switzerland began this revolution in free government in 1830 and by 1848 had the principle embedded in its federal constitution. About 1886 discussions of the Swiss institutions, and especially the initiative and referendum, as seen by American students abroad, began to appear in leading American journals and magazines. In 1898 South Dakota amended its constitution by adopting a provision for initiative and referendum. In 1900 Utah followed this example. In 1902 Oregon by the decisive ratio of eleven to one in the popular vote, adopted the most clearly expressed section yet developed in our country. In 1904 Nevada added a similar feature to the organic law.
In April, 1901, the matter of an initiative and referendum amendment first reached a supreme court, coming up in South Dakota, regarding acts to take immediate effect, passed under the emergency clause of the amendment. The court held that the Legislature is sole judge as to what laws are “necessary for the immediate preservation of the public peace, health or safety, or support of the State government and its existing institutions.” The fundamental principles involved were not questioned on either side. But in December, 1903, the initiative and referendum amendment was directly attacked in the Supreme Court of Oregon, and unanimously sustained. The Court, per Bean, J., said: “Nor do we think the amendment void because in conflict with Sec. 4, of Art. 4, of the Constitution of the United States, guaranteeing to every State a republican form of government. Now the initiative and referendum amendment does not abolish or destroy the republican form of government, or substitute another in its place. The representative character of the government still remains. The people have simply reserved to themselves a larger share of legislative power, but they have not overthrown the republican form of government, or substituted another in its place. The Government is still divided into legislative, executive and judicial departments, the duties of which are discharged by representatives selected by the people. Under this amendment, it is true, the people may exercise a legislative power, and may effect veto or defeat bills passed and approved by the Legislature and governor but the legislative and executive departments are not destroyed, nor are their powers or authority materially curtailed.” Although the question of the nature of laws initiated, or otherwise adopted by the people, upon reference to them, was not directly before the court, it said: “Laws proposed and enacted by the people under the initiative clause of the amendment are subject to the same constitutional limitations as other statutes and may be amended or repealed by the Legislature at will.”
Concerning that clause in the amendment which says: “the veto power of the governor shall not extend to measures referred to the people,” the court held that this applies to bills actually referred to the people, and not to all that might be referred, and that all acts not submitted to a referendum may be vetoed. The Utah and Nevada amendments have not been tested in court. Indeed, that of Utah is not self-executing, and the Legislature has not yet enacted a method of procedure to give it effect. The South Dakota amendment specifically applies to municipalities as well as the State. Nebraska in 1898 enacted a general initiative and referendum statute for counties, townships, cities, villages and school districts.
Since the time when “popular sovereignty” was a party shibboleth in the free or slave-State controversy, so many matters are frequently, if not habitually, submitted to a vote that such course no longer excites comment. The charter of Greater New York was adopted upon a referendum, which method has become the rule rather than the exception in giving charters effect. Within the charters themselves, the Initiative and Referendum appears with increasing frequency.
Many of the earlier acts referring matters to the people were assailed as unconstitutional on the ground of delegating legislative power to the people. The diverse decisions on the subject cannot be reconciled. Beginning with Delaware in 1847 and continuing to as late date as 1902 (in Ohio), various courts have pronounced such laws invalid. On the other hand, the Supreme Court of Louisiana decided flatly in 1853 and again in 1854 that conditional legislation, to take effect upon popular approval, is not unconstitutional. Then began some subtle and attenuated “distinguishing” among decisions. Many courts came round to the position that “while the Legislature cannot delegate its power to enact laws, it may provide that whether or not a law enacted shall be operative, may be made to depend upon the popular will.” An interesting fact is that the courts in the Southern States invariably upheld reference to the people, and that adverse decisions are very numerous in the North. A peculiar referendum was attempted in Massachusetts, but was declared unconstitutional. The act provided for submitting the question of extending municipal suffrage to women, but by a special section allowed the women to vote on the proposition of their own enfranchisement. Where there are constitutional clauses requiring some matters to be referred to the people, the rule of expressio unius est exclusio alterius has been invoked in opposing the submission of other laws to the people, but in vain. The failure of the proper officers to provide for taking a vote at the first election after the passage of a referendum law, cannot defeat the will of the people, or deprive them of the option of acceptance or rejection. Until accepted by popular vote, the law takes effect only for the purpose of submission, and at a later election mandamus will lie to require the officials to hold the election properly. In 1900 a movement began in Australia to make it obligatory to refer the matter to the people in case of a deadlock between the two houses on any bill or resolution.
The latest development of the principle is the advisory referendum, and advisory initiative. As the name indicates, these simply show to the legislative and executive departments the will of their constituents, and no legal obligation rests upon the officials to give form to the popular expression. In 1901 Illinois enacted a “public opinion law.” Delaware has pending a constitutional amendment to establish the advisory initiative and referendum. In 1905 Texas enacted a very interesting experiment in the way of a primary election law, which not only provides for nomination of candidates by direct vote, but contains provision for the use of the initiative and referendum within party lines to direct party policy, and determine what principles shall be promulgated in the party platform. Many city councils have voluntarily resorted to this method of learning the people’s will. In Buffalo in the fall of 1905 three questions were to be submitted. But the commissioner failed or refused to put the questions upon the voting machines at the proper time. Mandamus was brought in the Supreme Court. Thereupon Justice Krause granted the writ on one question, that relating to public ownership of a light and power plant by the city, but denied it on the other two, saying as to these: “They involve questions of legislation over which the city council manifestly has no power. Indeed, their very purpose is not to furnish information for the guidance of the local authorities; but they are peculiarly matters for the Legislature.”
When the Federal Constitution was submitted for ratification, many of the conventions in the several States, dissatisfied with certain features and more often with omissions in, the new instrument, offered amendments. These were numerous and varied, and some were later adopted. In New York and Rhode Island the conventions offered an amendment for the recall of United States Senators at the will of the Legislature, and the substitution of others. In 1803 and again in 1806, the Virginia Legislature passed resolutions in support of such amendment for recall. A revival and much broader application of the principle has lately been seen. In 1903 the city of Los Angeles, California, amended its charter by popular vote, and in addition to the initiative and referendum, it placed in the people’s arsenal another powerful weapon—the recall. A few words in the charter clearly define the recall. In the special election in September 1904, the councilman whose course in voting for two certain ordinances was not approved by his ward, was defeated by another candidate. The incumbent then petitioned the Supreme Court for a writ of mandamus to compel the rest of the council and city government generally to recognize him for the remainder of his term. Without deciding the point, the court assumed the validity of the recall amendment, but sustained the petitioner on the ground that the procedure in calling the special election was not quite regular. Even on this point, Chief Justice Beatty dissented. In an inferior court, the matter had come up in another form, and Judge Ostler decided against the incumbent, holding that the recall amendment is not obnoxious to either the State or Federal constitution, that it was not necessary to make charges in the petition for election, but simply to make statements of reasons to enlighten the public; that the officer had no property in the office nor vested right to hold to the end of his term; that it was no contract, but a mere agency, terminable at any time by the principal, the sovereign people.
With the general adoption of the Australian ballot, whether pure or modified, a certain rigidity and official formality was introduced, which makes independent action, or the rejection of “regular” party candidates, however unworthy they be, increasingly difficult. This put a premium upon the control of conventions and party machinery, and the naming of party candidates by whatever means. To secure a fair, untrammeled expression of popular will in the initiatory step of making nominations, a system of primary election laws has been evolved, and now exists in almost every State. The early forms applied where parties voluntarily, in primary elections, made nominations, sometimes of candidates by direct vote, but more often only of delegates to conventions, all under party management and control, subject to such public laws; the later forms are mandatory, requiring all parties to nominate candidates, or delegates, at an official primary election, under public control. The usual course of evolution has been to hold primaries for naming delegates, and then to assume the nomination of all candidates without the intervention of delegates.
About 1879 or 1880 a primary election law was enacted in Kentucky, but no obligation was imposed on any party or persons to nominate candidates by primary election. In 1895, almost simultaneously, several States adopted compulsory primary laws, limiting their operation at first to one or several large cities, and later extending them over the State in either a mandatory or an optional form. So widely do these enactments differ, that it is hard to deduce general statements of their features. Many have been upheld, and not a few overthrown. There has been a general tendency to substitute mandatory for optional laws. After a bitter fight, extending over a series of years, Wisconsin by a majority of over 50,000 adopted a mandatory primary election law in 1904, that provides for nomination by direct vote, of almost all officers from the smallest up to candidates for United States Senators, by all parties upon the same day at the same polling places and with the same election officers, who are publicly chosen from the two leading parties in the State. In 1900 California expressly recognized the primary election by a Constitutional provision, and empowered the Legislature to prescribe conditions on which voters may participate in such elections. The Constitution of Mississippi, Section 247, declares that the Legislature shall enact laws to secure fairness in primary elections. Where the primaries are official and mandatory, all expenses are paid by the public; where they are voluntary, the cost falls on the party holding them. Myriads of questions have arisen out of these elections, and Legislatures have sought in a variety of ways, to solve them. The proclivity of some voters to take part in all primaries has been an ever-present problem in those States that permit the several parties to hold their primaries at different times and places.