The purpose of ballot initiative is to offer ordinary citizens access to lawmaking. This goal can be accomplished well or poorly. Not all states have the same ballot initiative process. The devil is in the details. Just like a well written constitution profoundly effects the democracy of a country, a well written initiative process can do so as well. If one was to start from scratch, what are the most important aspects to consider?
The main design questions surround qualification. The purpose of qualification is to assess whether the proposed initiative is of sufficient interest to the public to justify further process and investment. Many initiatives will be drafted, but only a few will be qualified. A poorly drafted law can ultimately be much more expensive than investing adequately upfront to refine the drafting of a ballot initiative prior to passage. Cost to the public is mainly a concern prior to qualification; after qualification, quality is more important than cost.
- A proposed statute (law) or constitutional amendment is drafted.
If the text of an initiative must be finalized prior to qualification, it is important to invest significant effort in drafting. On the other hand, if the text of an initiative can be changed after qualification, it is less important to perfect the proposal early on. Ordinary citiziens are typically not experts in drafting legal documents. The text of an initiative can usually benefit from editing by a lawyer specialist.
- The proposal is qualified to establish whether there is sufficient interest to place the proposal before the electorate.
The trade-off in qualification is between cost and accuracy. One way this is expressed is in different petition requirements around the country. Larger petition thresholds are seen as more accurate, but of course they are more costly. Lower petition thresholds (and electronic signitures) are seen as less accurate and less costly. If qualification is too easy then the public will be faced with too many initiatives to vote on. If qualification is too hard then many worthy proposals will not make it to the ballot. The ideal process for qualification would be both accurate and inexpensive (e.g., a scientific poll).
- The proposed law is discussed. Some degree of deliberation takes place.
Many commentators have lamented that existing state-level initiative processes fail to sufficiently foster open deliberation. Once a proposal is qualified, minimizing public expense remains important but not at the cost compromising quality deliberation. Citizen juries seem to offer a good balance between quality deliberation and cost.
Key Design Questions
Can the text of a ballot initiative be changed after qualification?
- If the language of the ballot initiative can be modified, there is some concern whether the proposal remains substantially the same proposal that was qualified.
- If the language of the ballot initiative cannot be modified then the deliberation phase of the process is going to be much less powerful.
How much money do the proponents have to invest before public funding takes over? (less is better)
How much money does the public have to invest before qualification? (less is better)