refine and enlarge the public views,
by passing them through the medium of a chosen body
of citizens, whose wisdom may best discern the true
interest of their country, and whose patriotism and
love of justice will be least likely to sacrifice it
to temporary or partial considerations.[31]
Initiatives, by contrast, reserve
direct lawmaking power to the voters through providing
them a method to make new laws via the constitution,
or alternatively by enacting statutes.[32]
A criticism of using initiatives to make policy is
that this method undermines our basic representative
form of government.[33]
Moreover, contrary to the original intent of
initiatives, there is concern that initiatives become
the tool of special interests that can finance the
placement of an initiative on the ballot.[34]
Efforts of the represented to control their
representatives through initiatives has been described
as curing the problems of democracy with more
democracy.[35]
Although many historical phenomena
contributed to the development of mechanisms for
direct legislation, the initiative process can be
traced directly to Switzerland.[36]
Between 1831 and 1890, the Swiss adopted forms of the
initiative and referendum for both ordinary
legislative measures and constitutional proposals.[37]
The Swiss experience spawned advocates in the United
States.[38]
In 1898, South Dakota became the
first state to establish constitutional and statutory
initiative processes of direct legislation.[39]
By 1918, nineteen states had adopted an initiative
process; most of these states were west of the
Mississippi.[40]
By 1992, twenty-four states had authorized
constitutional or statutory initiative processes.[41]
IV.
HISTORY OF THE FLORIDA CONSTITUTION AND METHODS OF
AMENDMENT[42]
The Florida Constitution has been
readopted five times and amended many times since its
origin. Florida became a state in 1837.[43]
In 1838, the United States Congress provided a
two-house legislature with a twenty-six member house
of representatives and an eleven-member senate to
govern the Florida Territory.[44]
Florida held its first constitutional convention in
1838; in 1839, the voters adopted the proposed
constitution by a narrow vote of 2,065 to 1,961.[45]
The constitution of 1838 was
Florida's basic charter when the state entered the
Union in 1845.[46]
That document was not displaced until Florida joined
the Confederacy in 1861.[47]
The 1861 constitution was basically the same as the
1838 constitution with the exception of a recognition
of the Confederacy as the national government.[48]
At the end of the Civil War in 1865, Florida needed a
new constitution.[49]
Florida adopted the 1865
constitution prior to full implementation of
Reconstruction.[50]
In 1867, Congress returned most of the South to
military rule and took other steps to transform the
governments of the former Confederate states.[51]
The 1868 constitution accompanied the second military
occupation and provided the governor with authority to
appoint state cabinet and county officers.[52]
Many of the 1868 provisions are still in the modern
document.[53]
At the end of Reconstruction in 1885, Florida adopted
a new constitution.[54]
An elected cabinet and elected county officials
displaced the governor's appointment power.[55]
From 1885 to 1968, the constitution did not undergo
further general revision; however, there were numerous
changes by amendment.[56]
In 1964, Florida voters approved a
proposal for the amendment of the constitution that
allowed revision without a constitutional convention.[57]
In 1965, a statutory Constitution Revision Commission
was appointed, and a major constitutional revision
occurred in 1968.[58]
The 1968 revision substantially changed the executive
and legislative branches[59]
and granted new constitutional privileges.[60]
It also added two new methods for amending the
constitution: a Constitution Revision Commission and
the initiative procedure.[61]
In 1978, the independent
Constitution Revision Commission met for the first
time in Florida.[62]
However, voters defeated the proposals of the
commission, along with a proposal for casino gambling
placed on the ballot by initiative.[63]
In 1988, the Legislature proposed, and the voters
approved, a constitutional amendment to create a
Taxation and Budget Reform Commission with
jurisdiction limited to tax and budget matters.[64]
The Commission meets every tenth year and has the
power to propose amendments tot he constitution.[65]
The Florida Constitution has
more methods of amendment than any other state
constitution.[66]
Article XI of the Florida Constitution provides
that the electorate may adopt revisions or amendments
to the constitution in a general election.[67]
Amendments may be placed on the ballot by any of the
following methods: 1) adoption of a joint resolution
by three-fifths of the membership of the House and
Senate;[68]
2) recommendation of the Constitution Revision
Commission, which meets every twentieth year since
1978;[69] 3)
citizen initiative;[70]
4) recommendation of a constitution convention;[71]
5) recommendation of the Taxation and Budget Reform
Commission, which meets every tenth year since 1980.[72]
Since the major revision of the constitution in 1968,
ninety-seven proposed constitutional amendments have
made ballot position.[73]
Of these, voters adopted seventy-three and rejected
twenty-four.[74]
V.
AMENDMENT BY INITIATIVE IN FLORIDA
A.
Provisions for Initiatives in the Constitution
The 1968 revisions to the Florida
Constitution provided citizens with the right to
propose amendments to the constitution by initiative
petition.[75]
The original amendment permitted initiative proposals
to change any section of the constitution.[76]
However, a 1972 amendment to article XI, section 3 of
the Florida Constitution required proposals to
be limited to one subject matter.[77]
In 1994, the electorate adopted an initiative that
exempted from the one-subject limitation any
initiative limiting the power of government to raise
revenue.[78]
Article XI, section 3 currently provides:
[T]he power to propose the revision
or amendment of any portion or portions of this
constitution by initiative is reserved to the
people, provided that any such revision or
amendment, except for those limiting the power of
government to raise revenue, shall embrace but one
subject and matter directly connected therewith. It
may be invoked by filing with the secretary of state
a petition containing a copy of the proposed
revision or amendment, signed by a number of
electors in each of one half of the congressional
districts of the state, and of the state as a whole,
equal to eight percent of the votes cast in each of
such districts, respectively and in the state as a
whole in the last preceding election in which
presidential electors were chosen.[79]
Other sections of the constitution also
affect the initiative process. Article XI, section 5
provides procedures for placing proposed amendments on
the ballot, including initiative proposals.[80]
After a proposed amendment is filed with the secretary
of state, it must be placed on the ballot in the next
election held more than ninety days after the filing.[81]
The constitution requires that proposed amendments or
revisions be published twice prior to the election in
one newspaper of general circulation in each county.[82]
If the proposed amendment or revision is approved by
the voters, it becomes effective on the first Monday
after the first Tuesday in January following the
election, or on a date specified in the amendment.[83]
In 1986, the electorate voted for a
constitutional amendment that set forth certain
responsibilities of the attorney general and the
supreme court regarding the initiative process.[84]
The attorney general, as directed by general law, must
request the opinion of the justices of the supreme
court on the validity of initiative petitions.[85]
Also, the amendment altered article V, section 3,
which sets forth the jurisdiction of the supreme
court, to include the court's new responsibility.[86]
B.
Statutory Provisions for Placing a Constitutional
Initiative on the Ballot
Various Florida statutes set forth
the process for filing initiative petitions.[87]
The process can be time consuming and expensive. A
former secretary of state advises initiative
committees to begin work at least four years before an
election in order to have sufficient time to gather
necessary signatures and deal with any legal
challenges.[88]
However, some committees have made ballot position in
less time than two years.[89]
The sponsor of an initiative
amendment must register as a political committee prior
to obtaining any signatures.[90]
The sponsor of the petition prepares and the secretary
of state approves the substance and ballot title of a
proposed amendment.[91]
When a constitutional amendment gains ballot position,
its substance must be written in "clear and
unambiguous language" and in such a manner that a
"yes" vote will indicate approval of the
proposal and a "no" vote, rejection.[92]
The Department of State assigns a designating number
to each initiative proposal and must furnish the
number, ballot title, and substance of each amendment
to the supervisor of elections.[93]
The Department of State approves
only the form of the petition.[94]
The department staff checks the petition to determine
whether the ballot title is fifteen words or fewer,
whether the summary is seventy-five words or fewer,[95]
and for the correct size and format of the petition.[96]
Once the initiative committee registers with the
Department and the Department approves the proposed
amendment, the committee may begin circulating the
petition to gather signatures.
Committees must gather enough
signatures to equal eight percent of the votes cast in
each of one-half of the state's congressional
districts and in the state as a whole for the
preceding presidential election.[97]
In 1994, a committee had to gather 429,428 signatures
to place a proposal on the ballot.[98]
The supervisor of elections verifies the petition
signatures.[99]
The time this process takes depends on the number of
staff available for verification in each county; it
frequently takes several weeks.[100]
The initiative committee must pay
the supervisor of elections ten cents for each
signature checked or the actual cost of checking the
signature, whichever is less.[101]
However, if the committee is unable to pay the charges
without imposing an "undue burden" on its
resources, the signatures are verified at no charge.[102]
The committee or an opponent of the petition may
contest the verification results.[103]
Upon certification of the necessary
number and distribution of signatures of registered
voters, the supervisor of elections forwards the
respective certifications to the Division of
Elections.[104]
Initiatives appear on the ballot if they receive the
requisite number of signatures at least ninety-one
days before the general election and are not rejected
by the court.[105]
C.
Judicial Review of Initiatives
When an initiative committee
collects and obtains verification of at least ten
percent of the required signatures from one-quarter of
the congressional districts, the secretary of state
submits the petition to the attorney general.[106]
The attorney general then requests the supreme court's
opinion about the petition's validity.[107]
The court hears all questions presented by interested
parties before rendering its opinion.[108]
The constitution specifies that a
proposed amendment "shall embrace but one subject
and matter directly connected therewith."[109]
The Florida Supreme Court's first major interpretation
of the single-subject requirement was in 1978.[110]
The court held that it would broadly construe
restrictions on the initiative process so as not to
infringe on the peoples' right to petition.[111]
In 1984, in Fine v. Firestone, the court
receded from that ruling.[112]
In Fine, the court determined
that strict compliance with the single-subject
provision in article XI, section 3 is essential to the
validity of an initiative proposal.[113]
The court discussed the difference between initiative
petitions for proposing amendments to the constitution
and other amendment alternatives which have inherent
protections against poor draftsmanship.[114]
Because initiatives are often poorly drafted, the
court held that close judicial scrutiny of initiative
proposals will protect the state constitution from
ill-advised revision.[115]
The court strictly construed the single-subject
provision of the constitution to ensure that the
electorate has notice of specific changes contemplated
by a proposed amendment.[116]
The court has developed a
three-point inquiry on the single-subject issue.
First, the court reviews the effect the amendment will
have on the constitution as a whole.[117]
Second, it looks for violations of the single-subject
rule based on the effect of the amendment on various
governmental functions.[118]
Third, the court determines whether the component
parts or aspects of the proposed amendment have a
natural relation and connection as a single dominant
plan or scheme.[119]
According to Fine, a proposed amendment must
have a logical and natural single purpose.[120]
In 1993, the court opined that the reason for the
single-subject restriction is to prevent
"logrolling."[121]
An initiative may be removed from
the ballot only if its challengers show that it is
"clearly and conclusively defective."[122]
The court generally will find a proposal that fails to
satisfy any part of the single-subject test to be
"clearly and conclusively defective" and
will remove the proposed amendment from the ballot.
In addition to the single-subject
requirement, a proposal must give fair notice.[123]
In 1980, the Legislature amended section 101.161 of
the Florida Statutes to require a proposal's
ballot title and summary be written in clear and
unambiguous language.[124]
This amendment was to ensure fair notice of a
proposal's purpose and effect.[125]
The court has construed fair notice to mean actual
notice.[126]
D.
Initiatives That Made Ballot Position
Constitutional and statutory
requirements prevent many initiatives from making
ballot position. Since 1976, sixteen of ninety-four
committees have collected the required number of
signatures.[127]
Several of the sixteen initiatives were subsequently
removed from the ballot by the Florida Supreme Court
prior to the general election.[128]
Voters adopted seven of the eleven initiatives which
gained ballot position and rejected four.[129]
Voters have adopted or disapproved the following
initiatives in general elections:
| Year |
Initiative |
Action |
| 1976 |
Ethics in Government |
Adopted |
| 1978 |
Casino Gambling |
Not adopted |
| 1986 |
State Operated Lotteries |
Adopted |
| 1986 |
Casino Gambling |
Not adopted |
| 1988 |
Limitation of Non-Economic
Damages |
Not Adopted |
| 1988 |
English Is the Officia
Language of Florida |
Adopted |
| 1992 |
Eight Is Enough |
Adopted |
| 1992 |
Save Our Homes |
Adopted |
| 1994 |
Limited Casinos |
Not Adopted |
| 1994 |
Limiting Marine Net Fishing |
Adopted |
| 1994 |
Revenue Limits |
Adopted[130] |
Citizen use of initiatives is
increasing in popularity. For the 1994 general
election, twenty-six constitutional initiative
committees registered with the Division of Elections
of the Department of State expressing their intent to
collect signatures for twenty-six initiative
petitions.[131]
Six of these committees gathered the requisite number
of signatures for ballot position.[132]
The supreme court removed from the ballot six of the
ten initiatives because they failed to meet
constitutional or statutory requirements.[133]
Of the four initiatives the supreme court approved,
one did not meet the signature requirements.[134]
Thus, only three initiatives were on the ballot in the
1994 election.[135]
To date, twenty-two initiative
committees, some with multiple proposals, filed with
the Department of State to attempt to gain ballot
position for thirty-three initiatives in 1996.[136]
Many committees that did not meet signature
requirements before the 1994 election are continuing
their efforts for the 1996 ballot.[137]
Some committees' petitions have been reviewed by the
supreme court.[138]
Some of these initiative petitions may be more
appropriate as statutory amendments; however, the lack
of a statutory initiative process in Florida precludes
that choice.[139]
A review of the initiative processes
in other states reveals many similarities to and some
significant differences from Florida's constitutional
initiative process. This comparison is instructive
when evaluating Florida's present process and suggests
that Florida should consider devising a new statutory
initiative process. Specifically, Florida should
consider other states' signature requirements,
restrictions, and voter approval provisions.[140]
Likewise, scrutiny of indirect statutory initiative
processes illustrates that this method provides
increased public participation and encourages comment
and debate.[141]
VI.
THE PROCESSES IN OTHER STATES
Twenty-four states have some form of
citizen initiative process for amending their
constitutions or statutes.[142]
Fifteen of these states have an initiative process for
amending their constitution and statutes.[143]
Six states limit the initiative process to amending or
enacting statutes.[144]
Florida is one of three states that only provides a
method for citizens to amend the constitution.[145]
Conversely, the majority of states do not authorize any
form of initiative.
The methods of amending
constitutions or enacting statutes by initiative are
characterized as either direct or indirect.[146]
A direct method of amending the constitution or
enacting statutes places an issue directly on the
ballot once constitutional or statutory requirements
are met.[147]
The public then adopts or rejects the provisions in a
general election.[148]
The indirect method generally allows the legislature
to act on a proposal prior to its being put on the
ballot.[149]
The initiative processes vary in
each state; however, there are certain aspects common
to all. The processes generally require: 1) committee
registration and file the petition with a designated
state official; 2) a review of the petition for
compliance with statutory requirements which includes
review of the proposal's language, ballot title, and
summary; 3) signature of the petition by a specified
percentage of voters; and 4) verification of the
signatures by the state elections officer.[150]
A.
Constitutional Initiatives
Eighteen states have constitutional
initiative processes.[151]
Of those, sixteen states allow for direct
constitutional initiatives.[152]
Florida has a direct constitutional initiative process
similar to other states' processes. These states'
methods do not vary significantly.[153]
Mississippi and Massachusetts are the only two states
that have an indirect constitutional initiative
process.[154]
These indirect processes require that the proposal be
submitted to the Legislature before being placed on
the ballot. The Legislatures may then take one of
several actions. Though the Mississippi Legislature
can adopt, amend, or reject an initiative, the
proposal still goes on the ballot.[155]
If the Legislature alters the initiative, both
proposals go on the ballot, and voters may choose
between them.[156]
The Massachusetts Legislature can prevent the
initiative from reaching the ballot at all.[157]
However, Massachusetts has the lowest percentage of
signatures required for ballot placement—three
percent of the votes cast for governor in the previous
election.[158]
Therefore, Massachusetts' legislative latitude could
be attributed to its low signature requirement and
used as a filter for some unwise initiatives.
B.
Statutory Initiatives
Twenty-one states have statutory
initiative processes.[159]
Fourteen of those states have direct methods[160]
and nine have indirect methods.[161]
Utah and Washington have both indirect and direct
statutory initiative processes.[162]
Two other states offer an indirect statutory
initiative and a direct constitutional initiative.[163]
Several states with indirect methods
allow their Legislatures to propose alternative
measures to a statutory initiative. For example, the
Maine Constitution establishes an indirect statutory
initiative and provides that the Legislature may enact
the initiative measure as is or propose an
alternative.[164]
Alaska and Wyoming have a modified version of an
indirect statutory initiative procedure.[165]
These constitutions provide that one legislative
session must fall between the filing and balloting of
an initiative.[166]
Enactment of substantially the same measure by the
Legislature terminates the measure's appearance on the
ballot.[167]
Some states require that a statutory initiative be
submitted to the Legislature and, if not adopted, that
the committee obtain more signatures prior to the
proposal's placement on the ballot.[168]
Eleven states permit their
Legislatures to amend or repeal statutory initiatives
by a simple majority vote of both houses.[169]
However, six states impose limited restrictions on
legislative changes.[170]
In those states, generally, amendment or repeal is
prohibited for two to three years after enactment of a
statutory initiative.[171]
Four states impose major restrictions on legislative
amendments.[172]
California, for example, requires that any effort to
amend a statutory initiative must be approved by the
voters.[173]
Michigan, Arkansas, and North Dakota require a
two-thirds to three-fourths vote of the Legislature
for amendment.[174]
C.
Signature Requirements
Signature requirements vary
throughout the states. Generally, constitutional
initiative petitions need more signatures than
statutory initiative petitions.[175]
Of the fifteen states that have both constitutional
and statutory initiative processes, thirteen require
more signatures for constitutional initiatives than
for statutory initiatives.[176]
Four states require approximately twice as many
signatures for constitutional amendments as for
statutory amendments.[177]
Seven states require from approximately twenty-five to
fifty percent more signatures for constitutional
amendments than statutory amendments.[178]
The basis for signatures is usually
the total number of eligible voters,[179]
the total number of voters who voted in the last
gubernatorial election,[180]
or the total number of voters who voted in the last
presidential election.[181]
Requirements based on the total number of eligible
voters makes the percentage more difficult to attain.
For example, in Florida, only sixty-five percent of
the eligible (registered) voters actually voted in the
1994 general election.[182]
Therefore, the signature requirement is easier to
satisfy. In comparison, North Dakota requires four
percent of the entire resident population to sign a
petition.[183]
Six states, including Florida, require that signatures
be gathered from around the state.[184]
These requirements specify that signatures must be
from voters registered in multiple counties or from
congressional or state legislative districts.[185]
D.
Restrictions on Initiatives
Several states restrict the areas of
law that initiatives may amend.[186]
For example, the Alaska Constitution provides that an
initiative cannot dedicate revenues, make or repeal
appropriations, create courts, define jurisdiction of
courts, prescribe court rules, or enact local or
special legislation.[187]
The Illinois Constitution allows amendment only to the
section in the constitution governing the legislative
branch.[188]
The Oklahoma Constitution provides that when voters
reject measures through initiative and referendum such
measures cannot be proposed again within three years
without signatures of at least twenty-five percent of
the state's voters.[189]
States commonly use the
single-subject limitation as Florida does. Thirteen of
the eighteen states with constitutional initiative
processes and twelve of the twenty-two states with
statutory initiatives impose a single-subject
restriction.[190]
E.
Voter Approval
In most states, a vote of a simple
majority can enact citizen initiative proposals. Four
states require some type of super majority of the
total votes cast at that election or a previous
election.[191]
The Nebraska and Massachusetts constitutions provide
that a majority vote may adopt an initiative if the
majority amounts to at least thirty or thirty-five
percent, respectively, of the total votes cast in the
election.[192]
Nevada requires a majority vote in two consecutive
elections to approve an initiative.[193]
Illinois requires at least a three-fifths majority
vote to approve a constitutional amendment.[194]
F.
The California Experience
California has had an initiative
process since 1911.[195]
The prevalent use of California's initiative process
is an interesting case study and illustrates the
overall concerns regarding initiatives.[196]
Observers of the California process fear that
initiatives have "shifted the policymaking burden
to the voters, leaving them overwhelmed by the growing
number of measures on the ballot, confused by poor
drafting, [and] deceived by misleading campaigns . . .
."[197]
Constitutional and statutory
initiatives are a significant generator of
California's policy and are "exerting a major
impact on the life of the state."[198]
The number of initiatives California citizens have
circulated and adopted has increased five-fold since
the 1960s.[199]
In the past ten years, voters have approved more than
twenty-five initiatives at the polls.[200]
Those initiatives have instituted policy in important
areas such as education, insurance, taxes, the
environment, rent control, and crime prevention.[201]
Some initiatives are highly controversial; for
example, Proposition 187, which was adopted in the
1994 general election, denies public education,
non-emergency health, and public social services to
those who are not legally in this country.[202]
If California's trend is any predictor of the nation's
future, other states will begin to see the emergence
of "democracy by initiative as a new form of 21st
century governance."[203]
Further, spending on initiatives has
risen. In 1976, the median cost to get an initiative
on the ballot was approximately $45,000.[204]
In the 1990s, the median cost of an initiative has
exploded to more than $1 million.[205]
The cost of placing initiatives on the ballot has
created an initiative industry in California to raise
funds and gather signatures.[206]
This development raises questions about the true
"grassroots" nature of initiatives.[207]
The counter initiative is a new
strategy for undermining an initiative proposal and is
gaining popularity in California.[208]
Instead of opposing a measure by advocating a negative
vote, opponents run an alternative measure.[209]
A problem develops when voters approve two or more
initiatives addressing conflicting propositions.[210]
This problem occurs in other states; however, most
other states prescribe that the proposal with the most
votes prevails.[211]
Conflicting propositions inevitably confuse California
voters and complicate the court's job when it must
determine which elements in the proposals conflict.
Critical problems confront
California's initiative process.[212]
Various California commissions have studied and
proposed reforms to the process.[213]
These commissions recommended that it should be harder
to amend the constitution and that initiatives should
be approved by a three-fifths vote.[214]
They also recommended that the Legislature hold public
hearings on each initiative qualified for the ballot
and that proponents be allowed to amend their
initiative after the legislative hearing.[215]
Public hearings would identify drafting problems,
constitutionality issues, costs of implementation, and
other issues that could be resolved by modification of
the proposed initiative.[216]
Further, the commissions recommended that the process
be revised to allow amendments to statutory
initiatives without the approval of the electorate.[217]
To date, California has not adopted these revisions.[218]
G.
Florida Compared with Other States
Florida is one of only three states
that allow constitutional initiatives without allowing
statutory initiatives.[219]
The other two states in this category, Illinois and
Mississippi, have more restrictive initiative
processes than Florida.[220]
Of the eighteen states with
constitutional initiative processes, ten states
require more signatures than Florida,[221]
four other states require approximately the same
number,[222]
and only three states require fewer.[223]
Many states, including Florida, limit the time
permitted to circulate petitions to gather the
requisite number of signatures.[224]
The shortest period for circulation is in
Oklahoma—ninety days.[225]
California allows 150 days for circulating petitions,
and several other states allow periods ranging from
six months to two years.[226]
Florida allows the longest period of any state—four
years.[227]
Although Florida has only a
constitutional initiative process, its initiative
process shares many similarities with the processes of
other states. Most states have a single-subject
limitation[228]
and require some form of disclosure of initiative
contributions.[229]
Most states also require pre-election judicial review
of the initiative's procedural compliance.[230]
All states require review and approval of the ballot
title and summary.[231]
Also, in general, a simple majority vote can adopt an
initiative.[232]
VII.
ISSUES REGARDING THE INITIATIVE PROCESS
Initiatives and their effect on
democracy are likely to continue to be a subject of
national debate as they become a more prevalent method
of determining government policy in the states. The
general question arises whether initiatives are an
infringement on the representative form of government
or a necessary avenue of direct legislation for the
people when the elected officials either cannot, or
will not, pass laws which reflect the wishes of the
people.[233]
A previous joint committee study explained:
Furthermore, in 1994, the citizenry
voted in favor of an amendment to the constitution
which revised the initiative process to permit revenue
related initiatives to address more than a single
subject. This new amendment could have far-reaching,
uncontemplated effects.[262]
It is likely to result in an increase in the number of
initiatives which will make ballot position.
Consequently, Florida should consider options to make
it more difficult to amend the constitution by
initiative.
2.
Suggested Methods of Preservation
The process to amend the
constitution could be made more difficult by requiring
more signatures than the current eight percent. Many
states require more signatures than Florida and limit
the time for petition circulation to gather
signatures.[263]
Another option would be to make certain provisions in
the constitution unavailable for amendment by
initiative.[264]
The state could determine that certain issues are
fundamental to the state's welfare and safety and
restrict initiatives from amending those areas.[265]
A third option would be to require a
super-majority vote for passage. The current
initiative process requires for passage only a simple
majority of those voting. [266]
That amount may not be enough. In comparison, passing
a legislative joint resolution for amending the
constitution requires a three-fifths vote of the
members. The resolution then goes before the voters
for final approval. In 1995, bills were filed in the
Florida House of Representatives and Senate which
would have required a two-thirds or three-fifths vote
of the electors for the adoption of constitutional
amendments.[267]
These bills did not pass.
Any proposal to make it more
difficult to amend the constitution would require a
constitutional amendment approved by the electors. The
electorate may not favor an amendment to limit citizen
access to direct democracy. Yet, some may desire to
protect the integrity of their constitution and may
weary with the attempts of others to amend it,
especially if numerous proposals make it more
demanding and difficult for citizens to stay informed
about amendment issues. If citizens have an
alternative avenue to direct democracy, they may
approve restricting, and making more difficult,
amendments to the constitution. A statutory initiative
process would help preserve the integrity of the
constitution, and provide citizens an alternative
method to affect policy.[268]
B.
Procedural Other Concerns Regarding the Initiative
Process
There are other issues surrounding
Florida's constitutional initiative process that
deserve evaluation. These areas of concern are: 1)
funding of initiative committees; 2) petition
signature procedures; 3) judicial review procedures,
adn 4)public awareness of initiative effect.
1.
Funding of Initiative Committees
Some of the strongest claims against
initiatives focus on their vulnerability to special
interests and the inability of citizens to make
informed choices about the issues.[269]
Much concern surrounds large contributions paid by
special interest groups.[270]
According to the Division of Elections of the
Department of State, committees attempting to place
initiatives on the ballot in 1994 received
contributions as high as $16.5 million.[271]
Currently, there are no limits on contributions, only
a statutory requirement that all contributions be
reported.[272]
Paradoxically, initiatives were originally conceived
for grassroots groups to circumvent legislative bodies
which citizens perceived to be overly influenced by
special interests.[273]
In 1992, the California Commission
on Campaign Financing issued a study that stated
"ballot access today is less a drive for
broadbased citizen support than an exercise in
fundraising strength."[274]
The study notes that volunteer signature gatherers
have largely been replaced with expensive, paid
circulators and that for-profit signature-gathering
firms advertise that they will "guarantee ballot
qualification of any initiative—at a price."[275]
Some argue that special interests
have a significant influence on citizen campaigns.[276]
In 1994, campaigns for or against adoption of
seventy-three citizen initiatives in twenty-two states
consumed approximately $140 million.[277]
Voters decided two-thirds of those initiatives in
favor of the side reporting the highest spending.[278]
In Florida, the Proposition for Limited Casinos
Committee received contributions in excess of $16.5
million and undertook considerable advertising
campaigns to promote the casino initiative.[279]
However, despite generating the highest contributions,
the initiative did not pass. This suggests that
financing alone does not ensure passage of an
initiative in Florida.
Nevertheless, it appears that
adequate fundraising may at least assure the
collection of the requisite number of signatures. To
counteract the effects of paid advertising, Florida
could institute a process for public hearings on
initiatives, and provide for the dissemination of
unbiased summaries of initiatives.[280]
In addition, Florida could place a ceiling on
contributions made by a single individual or group to
a particular committee—a ceiling similar to the
limitations placed on contributions to political
candidates.[281]
These are options which Florida should review further.
2.
Initiative Petition Signatures
To obtain ballot position, sponsors
must gather valid signatures equal to eight percent of
the preceding presidential vote in Florida.[282]
Based on this requirement, an initiative committee had
to obtain 429,428 signatures to gain position on the
1994 ballot.[283]
Problems exist with the various aspects of the
initiative signature process. These concerns include
the effect of paid signature gatherers, signature
verification, and petition deadlines.
In addition, there are concerns
about the financial aspects of the signature process.
Some committees fail to pay for signature verification
while administrative costs associated with processing
the initiative petitions are increasing.[284]
Supervisors of elections reported additional
administrative costs associated with the initiative
petitions filed in 1994, ranging from a low of $100 in
a small county to more than $100,000 in a larger
county.[285]
These additional costs consisted mainly of salaries
paid to temporary help and overtime for permanent
employees for signature verification.[286]
a.
Paid Signature Gatherers
Many individuals and groups have
recommended that the Legislature preclude initiative
committees from paying signature gatherers.[287]
The recommendation results from a concern that paid
signature gatherers "pressure" individuals
to sign petitions which they may not understand.[288]
As well, paying signature gatherers per signature may
encourage fraudulent signatures.[289]
Signature gathering can be
lucrative. Some initiative committees pay signature
gatherers up to $2.50 per signature.[290]
An average worker can collect 200 signatures per day,
while energetic gatherers can collect up to 500.[291]
Allegedly, the increase in the cost of paying
signature gatherers alone ensures that $1 million is
needed to finance an initiative.[292]
The Safe Bet for Florida initiative committee
reportedly spent more than $1.4 million to hire a
company to gather signatures for its effort.[293]
The Supervisor of Elections for
Collier County indicated that there were numerous
petitions submitted with high rates of signature
invalidity.[294]
One initiative committee delivered 10,087 petition
signatures, of which only 697 were valid.[295]
The supervisor was able to demonstrate that someone
copied data from telephone books.[296]
The supervisor forwarded the information to the State
Attorney in Collier County.[297]
Fraud was also widespread in Pinellas County last
election year.[298]
One initiative petition included names deceased
persons.[299]
Many supervisors of elections have
noted a correlation between fraudulent signatures and
paid signature gathering.[300]
Supervisors generally agree that paid signature
gathering provides an incentive for fraud.[301]
In Leon County, fifty-two percent of the signatures
gathered by paid workers on the casino-gambling
petitions were invalid.[302]
However, only ten percent of the signatures gathered
by volunteers for the Save our Sealife petition were
invalid.[303]
Election officials in Hillsborough and Leon counties
have reported cases of apparent signature forgeries.[304]
In Leon County, pursuant to section 837.06, of the Florida
Statutes, the State prosecuted five individuals
for false official statements.[305]
Each individual confessed to signing names of
registered voters to the petitions and entered plea
bargains.[306]
Seemingly, the Legislature should consider prohibiting
paid signature gatherers.[307]
However, in Meyer v. Grant,[308]
the United States Supreme Court held that the First
Amendment protects circulation of initiative
petitions. Petition circulation involves the type of
interactive communication regarding political change
that is appropriately described as "core
political speech."[309]
The Court held that
