Administration and Cost of Elections (ACE) ProjectBack
Background of the ACE Project
|
|
The ACE project was originally designed to fulfill three key requirements:
|
|
The Administration and Cost of Elections (ACE) Electronic Publication represents the first-ever attempt to provide a globally accessible information resource on election administration. It provides user-friendly, operationally oriented information on options, detailed procedures, alternative solutions and the administrative and cost implications associated with organising elections. The ACE Electronic Publication is designed for use by an international audience of policy-makers, election professionals, political parties, media representatives, academics and students, multilateral institutions, non-governmental organizations (NGOs), donors agencies and others who can benefit from the widespread availability of information about different approaches to operating legitimate elections.
|
|
Three leading international organisations (The International Foundation for Election Systems (IFES), the International Institute for Democracy and Electoral Assistance (IDEA) and the United Nations Department of Economic and Social Affairs (UNDESA)) worked together to produce the materials on www.aceproject.org. These three ACE Project partner organizations met in January 2004 to further expand and enhance ACE as a high quality knowledge depository of electoral practice and to build a global partnership to promote knowledge sharing and capacity development. At this time, Elections Canada, the Federal Electoral Institute of Mexico and the United Nations Development Programme joined the project as full partners.
|
|
Introduction of the ACE "Focus On" series
|
|
The ACE "Focus On" series aims to explore in greater detail cross-cutting issues referenced in the ACE Project. A subject matter specialist introduces each focus on theme, highlights issues and sample materials in the ACE Project and identifies additional online resources for users to research more information. It is the hope of the ACE Project partners that the information contained in the "Focus On" section enhances the overall resourcefulness of the materials available at www.aceproject.org and increases the knowledge base of issues relevant to election administration.
|
|
|
|
Direct democracy is the term used to describe particular forms of vote within any democratic system. The term direct democracy is commonly used to refer to three distinct types of vote: referendums, which are votes on a specific single issue or piece of legislation (rather than for a party or candidate); citizen initiatives, whereby citizens can propose new legislation or constitutional amendments by gathering enough signatures in a petition to force a vote on the proposal; and recall, under which citizens can force a vote on whether to oust an incumbent elected official by collecting enough signatures in a petition.
|
|
The common characteristic of these mechanisms is that they all place more power directly in the hands of voters, as opposed to elected representatives. Direct democracy is therefore often seen as conflicting with representative democracy, in which voters elect representatives to make decisions on their behalf. In contrast, under direct democracy, voters can themselves make decisions about specific policies or issues.
|
|
Broad arguments are advanced in favour of and against direct democracy. Proponents argue that direct democracy can help to reduce the "democratic deficit", in which voters are losing confidence and interest in traditional models of representative democracy. They claim that by putting power back in the hands of the people, people will take a greater interest and role in issues of governance, thereby increasing the legitimacy of the democratic systems. In contrast, critics argue that it undermines and weakens representative government, and that placing power in the hands of the people can threaten the rights of minorities in society. It is also argued that many voters do not have sufficient understanding to make informed decisions about referendum issues, especially in the case of complex constitutional issues. Voter education and campaign information are therefore significant issues in relation to direct democracy.
|
|
This focus on section looks at the three different forms of direct democracy, looking at how direct democracy mechanisms are designed, how they are administered, and outlining the advantages and disadvantages of each.
|
|
Introduction
|
|
"Referendum" is the term given to a direct vote on a specific issue, in contrast with votes cast at elections, which are made in relation to parties or individual candidates and generally reflect voters' preferences over a range of different issues. Referendums may be held in relation to particular circumstances (e.g., to amend a country's constitution) or in relation to particular political issues (e.g., whether or not to join an international organisation) but are in general held in relation to issues of major political significance. The terms used to define referendums may differ in different countries; the following are the most common types of referendums held in countries across the world.
|
|
Types of referendum
|
|
Referendums fall into one of two main categories: the mandatory referendum or the optional referendum.
|
|
Mandatory referendum
|
|
A mandatory referendum is a referendum that must be held in certain circumstances, or in relation to certain issues. The outcome of a mandatory referendum is usually binding.
|
|
Mandatory referendums may be required in relation to pre-determined issues. Typically, these are issues of major national significance, for example joining a supra-national organisation (as in Switzerland). In addition, in many countries, proposed amendments to the constitution must be affirmed by a referendum. Alternatively, mandatory referendums may be required in pre-determined situations. One example is in a Presidential system, where in the case of disagreement between the President and Legislature, a referendum may be required to resolve the dispute.
|
|
The requirement for mandatory referendums is usually specified in a country's constitution or other law.
|
|
Optional referendum
|
|
The second category of referendum is the optional referendum. These are referendums which do not by law have to be held, but can be initiated by the government, and in some cases by other parties. Optional referendums may or may not be binding.
|
|
A government can decide to initiate a referendum on a major political issue. It might do so because public pressure for a referendum forces it to hold one, or it might choose to hold a referendum because it is divided on the issue at hand. Optional referendums initiated by the government have been held frequently in Europe on the issue of European Union integration (although in some cases, such referendums have been mandatory because they involve an amendment to a country's constitution). These referendums may not be legally binding, although it may be politically difficult for a government to ignore the outcome.
|
|
In addition, in some countries, Parliament or a Parliamentary minority may also be able to call a referendum.
|
|
A further type of optional referendum is the abrogative referendum. Abrogative referendums are held when citizens force a vote on a piece of new law passed by the legislature, usually by collecting a certain number of signatures in support of a vote, see citizen initiatives. In some countries, abrogative referendums can also be used in relation to existing legislation. If the law is defeated in a vote on the issue, it may be required to be repealed or amended.
|
|
Design features
|
|
There are therefore key design features that help to define different types of referendums. The first and perhaps most important is how the referendum fits within a country's overall legal system; are referendums mandatory under a country's constitution or other laws? Is a referendum required to be held, or has it been initiated by the government, legislature, or citizens?
|
|
A second key feature is the issues in relation to which referendums can be held. If the circumstances in which referendums can be held are clearly specified in a country's legal framework, the issues on which referendums will be held will be known. Typically, these will relate to issues of major constitutional or political significance, such as a country's constitution, sovereignty, or international relations. A large proportion of referendums held in Europe, for example, have been connected to the issue of European integration.
|
|
However, where referendums are optional, the subject matter on which they are held may vary. Without restrictions, abrogative referendums could relate to any issue that is the subject of legislation. Some countries that provide for holding referendums therefore place restrictions on the issues that can be the subject of referendums. In Uruguay, for example, referendums cannot be held in relation to fiscal policy or laws relating to the executive, whilst in Colombia, political amnesty is barred from being the subject of a referendum.
|
|
Issues
|
|
A number of issues arise in regard to the politics, administration and logistics of holding a referendum.
|
|
Combination of polls
|
|
When a referendum is held, it must be decided whether or not it is to be combined with another poll (e.g., an ordinary general election), or whether the referendum is to be held separately. It is sometimes argued that combining polls can increase the risk that voters will confuse separate issues (e.g., the performance of the incumbent government can be confused with the issue on which the referendum is being held). However, from an administrative point of view, it may be more cost effective to hold a referendum at the same time as an election.
|
|
The referendum question
|
|
A second important issue relates to the wording of the referendum question. Studies suggest that the wording of the question can have an important effect on the outcome of a referendum; who determines the exact question that appears on the ballot is therefore significant. Is the government responsible for framing the question, even in cases when the government initiates the referendum and therefore has an interest in designing the question to increase the chances of achieving its own desired outcome? Does the Electoral Management Body have oversight of the question? Whoever designs the question, it is important that the question put to voters must be clear and straightforward.
|
|
For information on the UK Electoral Commission's approach to referendums questions, click on the [updated] link below:
|
|
Campaign regulations
|
|
In relation to the referendum campaign, campaign regulations may be implemented to try to ensure that there is a level playing field between organisations campaigning for and against the referendum. These might include limits on campaign expenditure although in some countries, these may be deemed unconstitutional; see United States) and/or controls on the acceptance of campaign contributions. Alternatively, public funds may be allocated to campaign groups to ensure a minimum level of campaign spending on each outcome.
|
|
The role of the government and provision of information
|
|
The role of the government in a referendum campaign can also be important. Is the government allowed to campaign for the outcome it supports (in Ireland, the government is not allowed to campaign); does it distribute its own promotional material or run government broadcasts outlining its views? Similarly, is there a neutral source of information, separate to the government and referendum campaigners, and/or are there requirements providing for the dissemination of non-partisan information about the issue to voters? Does the Electoral Management Body have a role in providing information to voters? If information is provided through a neutral channel, who can put information into this channel? Voters may be more inclined to trust information from sources other than campaigners, and a source of information that is perceived to be neutral will be important to many voters.
|
|
For an example information booklet from Ireland, please click on the link below:
|
|
Turnout/majority requirements
|
|
Finally, a critical issue is when a referendum is judged to have passed. In some countries, a referendum will pass if a simple majority of voters vote "yes." In others, a referendum vote is only binding if a specified turnout threshold is reached: a recent referendum in Taiwan was defeated because turnout did not reach the minimum threshold required. Finally, some countries require a double or super majority to pass (e.g., when a referendum must achieve an overall majority and a majority in a number of states for it to pass, or when the yes vote must achieve a certain percentage of the overall vote), or an overall majority of registered electors (rather than voters who actually turnout to vote). Clearly, the requirements for a successful referendum have an impact on the likelihood of whether a referendum passes or not.
|
|
For information on the requirements for Australian referendums to pass and details of successful Australian referendums, click on the link below:
|
|
Arguments for and against referendums
|
|
Several arguments are advanced in support of and in opposition to referendums. Supporters of the use of referendums argue that, in the context of increasing voter apathy and disenchantment with traditional forms of democracy, direct democracy can help to re-engage voters with politics and democracy. Another argument advanced in favour of referendums is that they can be used to resolve political problems, particularly for incumbent governments; where a governing party is divided over an issue, for example, holding a referendum can help reach a solution on the issue without splitting the party (one example of this is the 1975 UK referendum on whether the UK should remain in the EC, over which the ruling Labour government was deeply divided).
|
|
There are also a number of arguments made against the use of referendums. One is that it weakens representative government by undermining the role and importance of elected representatives. Another is that voters do not always have the capacity or information to make informed decisions about the issue at stake, and instead may make ill-informed decisions based on partial knowledge or on the basis or unrelated factors such as the economy or support for the government. This trend may be exacerbated in the case of referendums on complex issues such as constitutional change or international treaties, with which voters are likely to be unfamiliar.
|
|
Opponents of referendums also argue that, if the executive has the power to determine when referendums are held, they can be used as a political tool to suit the needs of the governing party rather than in the interests of democracy. They also claim that, since in many countries turnout at referendums is lower than at national elections, the argument that referendums increase the legitimacy of political decisions does not stand up. However, experts in Switzerland (where a number of direct democracy votes take place each year) believe that, although turnout at referendums is around 45%, more than 45% of electors participate in direct democracy, since different voters participate in the different votes that interest them.
|
|
Introduction
|
|
Citizen initiatives provide for the inclusion of constitutional or statutory proposals on the ballot at an election if enough signatures are collected in support of the proposal. The number of signatures required to place an initiative on the ballot varies, but is usually a proportion of the number of voters who voted at the most recent election, or a fixed number of registered voters. Depending on the design of the initiative process, if the ballot measure is passed by voters, it may become part of the state or country's law. The initiative process therefore provides citizens with an opportunity to directly frame the laws and/or constitution under which they live.
|
|
Use of the initiative process varies substantially across different countries and in different regions within them. The following are examples of common types of citizen initiative and the design features that distinguish them.
|
|
Types of citizen initiative
|
|
Constitutional
|
|
Constitutional initiatives can be used to propose amendments to a country or state's constitution. The number of signatures required to place a constitutional measure on the ballot is usually higher than the number required to place other types of measure on the ballot.
|
|
Statutory
|
|
Using a statutory initiative, citizens can propose statutory measures to be placed on the ballot. A lower signature threshold is usually required for this type of initiative.
|
|
Direct
|
|
If an initiative is a direct initiative, then the measure that is circulated in petition or placed on the ballot automatically becomes law if it is approved by voters, without any involvement by the legislature.
|
|
Indirect
|
|
In contrast, indirect initiatives allow for the involvement of the legislature in framing the laws that arise from the initiative process. This involvement might take a number of different forms. In some countries or states, when a petition has met the required threshold, the legislature is able to formulate its own proposal to go on the ballot as well, to offer voters an alternative between the citizen initiative and the legislature's response. Alternatively, the legislature may have a role after a measure has passed, e.g. if a ballot is approved by voters, the legislature may have some scope to amend the measure.
|
|
Abrogative referendums/recall
|
|
There are two other types of direct democracy mechanisms which are commonly labelled as initiatives, because they are invoked when citizens collect enough signatures in support of a measure. These are the abrogative referendum and the recall. Details about these mechanisms can be found in the sections on referendums and recall.
|
|
Issues
|
|
In order to start an initiative, proponents of the measure are required to collect the signatures of a small, specified number of supporters of the initiative and file it with the relevant government office (in some countries and states, the requirement is as low as 25 signatures). Once an initiative has been filed, its proponents must begin the process of collecting the relevant number of signatures required to get the initiative on the ballot. If and when the relevant number of signatures are collected, the initiative is normally included on the ballot of the next election in the appropriate jurisdiction.
|
|
A number of important issues arise in relation to process of preparing, circulating and approving a citizen initiative. The significance of each of these issues varies, however, according to the relevant constitutional and political context.
|
|
Ballot title
|
|
Once a proposition is filed, the first key issue is the wording of the ballot title to be circulated in petition and which will appear on the ballot. Typically, the ballot title will be a short summary of the proposed measure. The proposed measure will normally have been drafted by the individual or group proposing it, or by a legal team engaged by them, whilst the ballot title will normally be drafted by the office responsible for overseeing the administration of the initiative process.
|
|
Agreeing the ballot title can be a long process, since whilst administrators aim to ensure that the ballot title clearly and accurately reflects the measure being proposed, proponents seek to put forward a title that maximises the chances of it being passed. Well funded initiative campaigns may file various versions of the same proposition then conduct opinion polls to assess the relative popularity of each, in order to ensure the proposition that is taken forward stands the highest chance of success.
|
|
Signature collection and verification
|
|
After an initiative has been filed and the ballot title agreed, the proponents of an initiative are required to gather a specified number of valid signatures within a specified time period from the date on which the initiative was filed. The number of signatures required varies; clearly, the lower the signature threshold or the longer the time allowed for signature collection, the more likely it is that the initiative will qualify for the ballot. Signatures must normally be collected from registered voters; usually, a proportion of signatures collected will be found to be invalid, so proponents must collect a number of signatures in excess of the actual threshold. Signature verification is undertaken by the department responsible for administering direct democracy and will normally be undertaken on a random sampling basis. The signature collection and verification process does not always run smoothly (see the recall section).
|
|
A sample of petition forms from the US state of Oregon can be found at the links below: |
|
Campaigning and the provision of information
|
|
During the petition circulation stage and in particular once an initiative has qualified for the ballot, proponents and opponents of initiatives will run campaigns for and against the measure. As with a referendum campaign, in some places, campaigning is regulated; contributions or expenditure may be capped. In others, however, there may be difficulties in implementing campaign controls because of the constitution; in many US states, for example, courts have ruled that expenditure limits are unconstitutional, because campaign expenditure has been equated with freedom of speech, which cannot be restricted. This has become a contentious issue because of concern in the US over the role of money and the initiative industry (see below).
|
|
In addition to campaigns run by organisations campaigning for or against the initiative, the administration responsible for overseeing the initiative process will often publish an information pamphlet providing voters with information about the proposal. Typically, this might include a statement from the pro- and anti- campaigners, as well as a non-partisan analysis of the measure produced by the government. It might also include statements from other individuals and organisations who support or oppose the measure.
|
|
Details of how campaigners can arrange to place a statement in an information booklet in Oregon, and an example of a Californian voter information guide, can be found on the links below: |
|
Number of initiatives on the ballot
|
|
Because there are not normally any limits on the number of initiatives that can be included on a ballot, it may be the case that there are multiple initiatives on any given ballot. The number of initiatives on a ballot normally depends simply on the number of initiatives that have qualified for the ballot in the relevant period before the election (some initiative proponents will deliberately time petition circulation in order to ensure that the initiative appears on the ballot for one particular election rather than another) In the US state of Oregon, there were 26 different initiatives on the ballot at the 2000 Presidential election.
|
|
The link below provides an up to date record of the initiatives that have qualified for the Californian state ballot at the 2004 US Presidential election: |
|
The initiative industry
|
|
In a number of US states in particular, concern has been expressed that the use of citizen initiatives is increasingly professionalized, and that the "initiative industry," rather than citizens, determine which measures make it onto the ballot.
|
|
Professional firms can assist with virtually all aspects of the initiative process, including: initial drafting of the initiative; opinion polling and focus group research; negotiation over the ballot title; securing endorsements to be used in campaigning; petition circulation; proposing counter-initiatives; and campaigning for the initiative once it has qualified.
|
|
One area of concern to some observers has been the use of paid signature collectors to circulate the initiative in an effort to qualify the measure for the ballot. This is perhaps because the use of companies acting for profit to collect signatures arguably seems most at odds with the concept of citizen backed initiatives which are promoted by volunteers who believe in a measure. It is almost accepted in some countries that, without the assistance of professional signature collectors, it will be virtually impossible to get an initiative on the ballot, meaning that only well-financed campaigners are able to get initiatives to the ballot. Some US states have tried to legislate against this by banning the use of paid signature collectors, or requiring professional firms to pay collectors by the hour rather than per signature. This has been ruled unconstitutional in some states, however.
|
|
Counter-initiatives
|
|
In some places where citizen initiatives are proposed frequently, one trend is for opponents to propose a counter-initiative as a means of opposing the original initiative measure. This tactic can be successful in that the existence of two related but opposing initiatives increases voter uncertainty and confusion about an issue, increasing the likelihood that voters will simply oppose both measures. Use of this tactic may be effective for opponents of specific initiatives, but it also increases the number of initiatives in circulation and potentially on the ballot.
|
|
Role of the legislature, government officials and courts
|
|
The role of the legislature, government officials and courts in relation to citizen initiatives tends to be strictly defined and rather limited. As outlined above, there is a role for the legislature in relation to indirect initiatives, where there may be an opportunity for it to amend initiative measures, or propose their own alternatives. However, in cases where the design of the initiative process does not provide for the involvement of the legislature, the only reviews that are permitted by the state in relation to initiative proposals is whether or not they comply with the administrative requirements imposed, i.e., are there enough proponents, have enough valid signatures been gathered? A further administrative task is to draft and agree the summary of the ballot title. In some places, where there are strict controls on the number of issues that an initiative can deal with, administrators might also be responsible for checking that the initiative proposal deals only with one issue. In systems where initiatives need to be translated into more than one language, administrators might also be responsible for confirming whether the translation of the initiative proposal means the same in all the relevant languages.
|
|
However, other than these legally defined administrative tasks, there is often no role for officials or the courts in reviewing the constitutionality of initiative proposals, for example, the compatibility of the proposal with human rights measures. In some US states, this has led to a situation in which a significant proportion of initiative measures are struck down by the courts after they have been passed by voters.
|
|
Advantages/disadvantages
|
|
In addition to the general advantages and disadvantages of direct democracy (i.e. reducing the democratic deficit versus undermining representative government, see referendums) there are a number of perceived advantages and disadvantages specific to citizen initiatives.
|
|
Advantages
|
|
It is argued that the simple existence of the initiative mechanism acts as a check on the activities of the legislature. This is because legislators are more likely to introduce certain reforms and measures if the initiative mechanism exists, because it is likely that if they do not, an initiative on the issue will be launched. One example is that US researchers have shown that US states that use the initiative process are more likely than those that do not, to have introduced governance reform policies (e.g., term limits, campaign finance controls). Another indication of this is the number of initiatives that are introduced but subsequently withdrawn in Switzerland, because the introduction of the initiative has in itself forced the legislature to address the issue. It is therefore claimed that the initiative process makes legislatures more responsive.
|
|
Disadvantages
|
|
One often cited disadvantage of citizen initiatives is that they result in badly drafted law, since (except in the case of indirect initiatives) the wording of the measure as initially proposed ends up as statute if the measure is passed. It is argued that the failure to use the expertise provided by government lawyers and officials who are familiar with the drafting process leads to laws that can be meaningless or ineffective, or have to be re-drafted, because the individuals or lawyers who draft the measures are not experienced in legislative drafting. Additionally, in some cases, statute created by the initiative process is found to be unconstitutional.
|
|
A further disadvantage is the sheer number and complexity of issues that voters are expected to vote on. It is argued that it is impossible for voters to make informed decisions when they there are a substantial number of initiatives on the ballot, and that the likelihood of simple no votes increases the more initiatives are placed on the ballot. A related argument is that citizens cannot be expected to make decision on complex issues that they, unlike elected representatives, do not have the time to learn about.
|
|
A frequent criticism of citizen initiatives is that they are only really accessible to well-resourced organisations and interests, and that the process is therefore hijacked by special interest groups promoting their own interests. Empirical evidence about the success of well-financed interest groups is mixed: some research has suggested that money does not in fact have a major effect on the outcome of citizen initiatives, whilst other studies have highlighted the role of money, in particular in defeating initiatives. However, there can be no doubting the importance of professional firms in the initial stage of the initiative process, in particular in terms of signature collection.
|
|
A common criticism of citizen initiatives (and other forms of direct democracy) is that they enable the "tyranny of the majority." This term refers to the electoral power of majority groups in society being used to restrict of hinder the rights of unpopular minority groups. Critics argue that without the moderating influence of the legislature, legislation may be passed which actively targets the rights of groups within society which are unpopular. However, research undertaken in the US has produced different conclusions about whether initiatives do actually restrict the rights of minorities or not.
|
|
Possible reforms
|
|
In places where it exists, the citizen initiative process is generally an accepted feature of the political system. However, many people familiar with the initiative process have outlined possible reforms to refine the initiative process. Most possible reforms of the citizen initiative process focus on reducing the importance of money in the process and/or ensuring that voters are best able to make informed decisions about initiatives.
|
|
Reducing the importance of money
|
|
Various reforms could be enacted to limit the role of money in the initiative process. In relation to signature collection, banning the use of paid signature collectors and/or payments per signature, or requiring signature collectors to identify whether or not they are paid collectors or volunteers, might reduce the importance of professional firms in the process. Another alternative is to require a fixed proportion of signatures to be collected by volunteers, although this might be hard to regulate.
|
|
In terms of the campaign, imposing campaign or contribution limits reduce the significance of campaign funding, although in some places these may be constitutionally difficult to introduce. Subsidies for less well-funded campaigns might be one way of trying to ensure that well-financed campaigns are not able to completely outspent less well-financed opposition campaigns.
|
|
Minimising complexity of issues
|
|
To ensure that voters are able to make better informed decisions about ballot initiatives, it has been proposed that the number of initiatives on the ballot is limited, the argument being that it is impossible for voters to make informed decisions about complex issues when they are faced with several initiatives on the same ballot. Other proposals include limiting the reading-age level of the ballot title, or restricting the number of words in the title, to ensure that initiatives are presented in as clear and straightforward terms as possible.
|
|
Ensuring a role for the legislature and court
|
|
It has been argued that statutory provisions arising from initiatives could be improved by involving the legislature and/or court in the initiative process. On one level, this could simply mean providing assistance with the drafting of initiatives, which would mean that they are better written. Another improvement to the process would be to allow courts to screen initiatives to judge whether or not they are constitutional. This would prevent initiatives being struck down by the courts as unconstitutional after they have been passed by voters. Alternatively, it would also be possible to give the legislature a more significant role in the initiative process, effectively turning it into an indirect process. As indicated above, such reforms could include allowing the legislature to draft its own proposals in response to initiatives and allowing the legislature to make minor amendments to initiative statutes.
|
|
Introduction
|
|
Recall is the name given to a mechanism by which voters can end an elected official's period of office before the next scheduled election for the office. Combining elements of the initiative process and a normal candidate election, a recall initiative is launched when a recall motion is filed with the relevant administration. Proponents are then required to gather a specified number of signatures in support of the recall measure. Typically, the number of signatures required will be a proportion of the votes cast for the officer who is the subject of the recall at the last ordinary election to that office. If and when the recall petition acquires enough valid signatures, the issue is put to voters at a ballot to determine firstly, whether or not the officer in question should be recalled and secondly, who should replace the officer if the recall measure is successful.
|
|
The recall mechanism is the least common of the three direct democracy mechanisms. Although many US states include provision for the recall in their constitutions, the mechanism is not used at national level. Provision for the recall mechanism outside the US and at national level is rare, even in countries where direct democracy is widely used (e.g., Switzerland).
|
|
Design issues
|
|
Restrictions on which officers the mechanism applies to
|
|
Where a country or state's constitution provides for use of the recall mechanism, relevant legal provisions will need to specify which elected officials the mechanism can be applied to. Only in Venezuela does the recall mechanism apply to a country's elected head of state. However, in most US states, the recall mechanism can be used to recall all elected state officials, from local and county officials up to the office of Governor. Judges may also be the subject of recall campaigns. In some states, some on-elected officials such as administrative officers can also be recalled.
|
|
Restrictions on applying the recall mechanism
|
|
In some places that have adopted the recall mechanism, officers can only be recalled if it can be demonstrated that they have acted improperly (e.g. the US state of Minnesota, where the grounds for recall of an elected official are serious malfeasance or nonfeasance during the term of office). In others, there are no requirements for officials to have acted improperly or incompetently, and the simple fact of enough signatures being collected is enough to force a recall vote.
|
|
Number of signatures required to force a ballot
|
|
The number of signatures required in order to hold a recall ballot clearly has a significant effect on the likelihood of being able to do so; the fewer the number of signatures required, the more likely it is that a vote on whether an officer should be recalled will take place. At the 2003 California recall, recall proponents were required to gather signatures of 12% of the vote for Governor at the last election in a period of 160 days. Many other US states require 25% of voters to support a recall; California's threshold of 12% is the lowest in the States.
|
|
Verification of signatures
|
|
As with the citizen initiative mechanism, the requirement to produce a specified number of signatures in order to hold a ballot creates the need to collect and verify signatures. Signatures are normally only valid if they are collected from individuals who are registered to vote in the jurisdiction of the officer who is the subject of the recall. Verification of signatures is undertaken by the office administering the recall initiative. The importance of the signature collection and the verification process is demonstrated by the high profile Chavez recall initiative in Venezuela, where the National Electoral Council initially ruled that a large number of signatures collected by recall proponents were ineligible.
|
|
For news stories in English about the Chavez case, please click on the links below:
|
|
Combining the votes on the recall and a successor
|
|
One feature of the recall mechanism which varies in different places is whether, once a recall petition has collected enough valid signatures, the recall ballot is combined with the vote for a replacement officer if the recall be successful. In some places, the votes are combined, meaning that voters have to vote on two issues: firstly, whether or not the officer in question, and secondly, who should replace the officer if the recall is successful. In such cases, if the recall vote is defeated, the vote on a successor is irrelevant and is ignored. However, if the recall vote passes, the candidate who achieves the most support on the second vote is elected as a successor to the recalled officer. Alternatively, an initial ballot on whether or not to recall the officer is held, and only if the recall vote is passed is a second vote on a successor held.
|
|
There are arguments for and against each of these alternatives. One argument against combining the votes is that the combination might confuse voters about the process, and that it prevents voters from focusing solely on the recall issue. Arguably, when voters make a decision about whether to support the recall, they should be able to focus on the issue at hand and the performance of the incumbent, without the distraction of possible successors. On the other hand, combining the two votes leads to cost savings and increases administrative efficiency.
|
|
A further issue is that combining the recall and successor vote could mean that the vote for (i.e. to retain) an incumbent who is successfully recalled is actually higher than the plurality vote in favour of the successor, which could give a legitimacy problem. This scenario might be avoided by using voting systems such as the Alternative Vote or Supplementary Vote. However, this would mean that a combined vote would become increasingly complicated for voters.
|
|
The recall in a party based electoral system
|
|
More generally, there is a question of compatibility of recall with the electoral system. If the electoral system is candidate-based, there is no problem. If however it is party based, should the voters have the right to recall a specific representative nominated by a party? Would there be a difference between representatives chosen by the voters under open list proportional representation? In general, in list systems, does the party or the voters fill the vacancy caused by a successful recall?
|
|
Advantages and disadvantages of the recall mechanism
|
|
Proponents of the recall mechanism argue that it acts as a discipline on elected officials, in that elected representatives will be less likely to make unpopular decisions if it may make them more likely to be the subject of a recall campaign. However, the same argument is also used against the recall: opponents argue that the recall mechanism completely undermines representative government by making elected officials afraid to make unpopular but necessary decisions.
|
|
A further argument in favour of direct democracy is that it provides voters with the continued opportunity to make a democratic decision about who governs them, since they do not have only one opportunity every three to five years to elect the people who will represent them, but retain a degree of control over the decision for the duration of the office.
|
|
However, it is claimed by opponents of the recall that the mechanism could be used irresponsibly, and that it could be used by political parties as a political weapon against rival incumbents. The claim that the recall mechanism was being used as a political tool was made by many Democrats against Republican party activists in relation to the 2003 California Recall.
|
|
Nationwide votes on a specific issue are an accepted way of resolving political issues in many countries around the world. Such votes are usually termed "referendums", though there are two special types of referendum for which a different name is sometimes used. First, when a vote is brought about by a demand from a prescribed number of ordinary citizens, for example by signing a petition, the resulting vote is termed an "initiative". Second, the term "plebiscite", though sometimes used interchangeably with referendum, has negative connotations in a number of countries, where it is used for votes that were not held under genuinely democratic conditions.
|
|
A referendum gives the people the chance to vote directly on a specific issue. Although people can also make choices at general elections, these elections are usually fought on a number of issues and often no clear verdict on any one issue is delivered.
|
|
Referendums have been used in many countries; in Switzerland they are very common, in some countries there may be on average one or two per year, and in most countries they are rare. Generally speaking, they are not used to settle ordinary political issues of the sort that arise routinely, but to deal with major issues or issues that seem to transcend the regular party alignments. The most common situation in which a referendum is seen to be appropriate is a major regime change; not only the reform of an existing constitution, but the adoption of a new constitution or, the biggest step of all, the decision of a people to declare independence.
|
|
For example, Norway's decision to separate from Sweden in 1905 was made by the Norwegian people in a referendum in which 99.9 per cent voted for independence, a powerful expression of national pride. Similarly, Iceland held a referendum on becoming independent from Denmark. Spain's adoption of democratic reform in the late 1970s after the death of the dictator Franco was approved by the people through a referendum. Likewise, new constitutions have come into being through referendums in Denmark, France, and Ireland. The decision to move to multi-party politics has been taken by referendum in some African countries, such as Gabon and Malawi. In each case, it has been important for the legitimacy of the decision that this step towards independence or democracy has been taken by the people directly and not by the political elite.
|
|
A fundamental issue that has arisen in a number of European countries has been membership in the European Union, which has implications for the sovereignty of individual states. Of the current 15 member states of the EU, 5 have held referendums on whether to join: these are Austria, Denmark, Finland, Ireland and Sweden. In addition, Britain, once in, held a referendum on whether to leave, while the people of Norway twice voted not to join even though the political elite on each occasion was in favour of membership.
|
|
This list illustrates the way in which referendum issues are often really major questions that rise above the sort of day-to-day political issues that arise routinely in a country. Generally speaking, referendums are best suited to such questions, and to issues that cut across the usual lines of division in a society rather than to issues that run along those lines.
|
|
For example, suppose a country has two main linguistic groups, with one language being spoken by 60 per cent of the population and the other by 40 per cent, and constant political tensions over the language issue. If a referendum were held to resolve the question of which should become the country's sole language, this would solve nothing, because the minority group would be unlikely to accept the majority vote in favour of the other language as a fair way of resolving the dispute. Ethnic disputes, too, are not easily resolvable by referendum. In other words, where a question of minority rights, and how far a majority can impose its wishes on a minority, is concerned, a referendum is inappropriate, because it may become a mere instrument of majoritarianism. In such a situation, the only possible use for the referendum would be to test the acceptability of a compromise worked out by the elites.
|
|
Likewise, if a country is divided along left-right lines, there is little to be gained by holding a referendum on a left-right issue, which at best would be likely to replicate the vote in a general election. So, when referendums are held on political questions, these are usually ones that cut across the usual party divisions. Examples include votes on nuclear power in Austria and Sweden, or on divorce in Ireland.
|
|
Even if we can frame guidelines as to the most appropriate way to use the referendum, it does not follow that these will always be heeded. Indeed, there are many ways in which the referendum might be misused or even abused, and there are examples of most of these. In France, for example, quite a number of the referendums held since the Second World War have been held for opportunistic political reasons, when the government saw a chance to embarrass or divide the opposition.
|
|
This is an argument for regulating the circumstances in which referendums can - or must - be held; otherwise, if they can take place too easily on the whim of the government of the day, the institution of the referendum is liable to become discredited and such votes will not serve a useful function.
|
|
Indeed, all aspects of referendums need regulation. It is particularly important that the rules governing the referendum are drawn up in advance so that everyone knows what they are. Areas where this is necessary include the following:
|
|
Referendums, like most other political institutions, potentially have both advantages and disadvantages. The advantages include their legimitising role: a decision taken directly by the people is likely to be accepted as legitimate even by opponents of the idea, who might not have accepted a similar decision taken by the parliament or government. This has been apparent in votes on the European Union in Denmark and on divorce in Ireland, where referendums have settled contentious issues. In addition, referendums increase popular participation in decision-making and have an educative effect on the population, who inevitably becomes better informed on the issues at stake.
|
|
Among the possible disadvantages are that the instruments of representative government, such as parliaments, may be undermined, and that the public may not be sufficiently well informed to make sound political decisions. There is also a fear of majoritarianism, a concern that the majority might use the referendum to trample on minority rights.
|
|
Looking at referendum practice around the world may not bear out the utopian hopes of some early pro-referendum campaigners, but neither does it support the fears of those who see the referendum as potentially destructive to democracy. Most countries that have the referendum institution seem to have benefited from it and have incorporated it as a feature of the political process. For example the issue of Danish involvement in the European Union was settled by two extremely closely argued referendums in 1992 and 1993; in each case the turnout was over 80 per cent, the process left the Danes as the best informed people in Europe about EU issues, and the outcome had a legitimacy that a decision by parliament could never have had.
|
|
On the other hand, excessive use of the referendum can have negative effects. Across the world, the most frequent user of the referendum is Switzerland, where turnout in many votes is below 50 per cent, perhaps because the Swiss tire of voting so often - on average there are about 10 popular votes a year. Even so, the referendum is a full and accepted aspect of the Swiss political system, and some Swiss commentators even want it to be used more widely.
|
|
In Italy the referendum has been a more destructive force. The Italian rules allow a fixed number of voters to launch a challenge to an existing law, and on occasions Italians have been called upon to vote on up to 12 different issues on the same day. Italian referendum practice has co-existed uneasily with representative government at certain times. In countries where the institutions of representative government are weak or in a fledgling state, it may be unwise to allow groups of voters to demand referendums on laws that they dislike, since this creates the risk that tough but necessary decisions that might have been proved correct in the long term will be voted down by the people.
|
|
While the institutions of representative government can co-exist comfortably with the referendum, representative government and the initiative sit less easily together. The Swiss political system works smoothly enough with the widespread use of the initiative, but most other countries would find it much more difficult to carry on stable and effective government with such broad initiative provisions. Moderate use of the referendum does not seem to weaken representative government, and may even strengthen it, but excessive use may both weaken representative government and undermine the value of the referendum itself.
|
|
In the United States, Massachusetts voters have been authorized to use the citizen initiative since 1715 to place articles in the town warrant (fixed agenda) to call a town meeting. Currently twenty-three state constitutions, commencing with South Dakota's in 1898, authorize the use of petitions to place propositions on the referendum ballot. The constitutional initiative exists in seventeen American states and the statutory initiative may be employed in twenty-one states. The governor's veto power does not extend to initiated statutes. The device also may be used in most states to adopt and amend local government charters and in many municipalities to enact ordinances. The United States Supreme Court in Pacific States Telephone and Telegraph Company v. Oregon, 223 U.S. 118 (1912) rejected a challenge to the initiative that it violated the United States constitution which guarantees each state a republican form of government.
|
|
Initiatives may be classified as
|
|
The first two categories are self-explanatory. Under the direct initiative, the entire legislative process is circumvented as propositions are placed directly on the referendum ballot if the requisite number and distribution of valid petition signatures are collected and certified.
|
|
The indirect initiative, employed in eight states, involves a more cumbersome process as a proposition is referred to the legislative body upon the filing of the required number of certified petition signatures. Failure of the legislative body to approve the proposition within a stipulated number of days - varying from forty in Michigan to adjournment of the Maine State Legislature - leads to the proposition being placed automatically on the referendum ballot. In Massachusetts, Ohio, and Utah additional petition signatures must be collected to place the proposition on the ballot. Only the Massachusetts Constitution authorizes use of the indirect initiative to place proposed constitutional amendments on the ballot.
|
|
The Maine, Massachusetts, Michigan, Nevada, and Washington State Legislatures are authorized to place a substitute proposition on the ballot whenever an initiative proposition qualifies for the ballot. Although a section of the Constitution of Alaska provides only for the direct initiative, another section allows the State Legislature to enact a legislative substitute that voids the initiative petition provided the substitute is "substantially the same." Maine, Massachusetts, and Wyoming authorize only the indirect statutory initiative. Michigan, Nevada, Ohio, South Dakota, Utah, and Washington authorize employment of both types.
|
|
The advisory initiative allows voters to circulate petitions to place non-binding questions on the ballot at an election to pressure legislative bodies to enact specific bills into law. Such initiatives were used infrequently prior to the late 1970s and generally attracted only local notice. The growth of the environmental and nuclear freeze movements results in the employment of the initiative to generate national media attention.
|
|
States which authorize use of the initiative to place proposed statutes on the referendum ballot, except Alaska, require the preliminary filing of a proposed petition with the Attorney General or Secretary of State who checks the petition for conformance with constitutional and/or statutory requirements. In Alaska, sponsors file the petition with the Lieutenant Governor who also receives all signed petitions filed by the deadline date. Three states require a deposit - $100 to $1,000 - when an application is filed and the deposit is refunded if the proposition qualifies for the ballot. In three states the petition is reviewed by state officers who may suggest wording changes to the sponsors.
|
|
The Attorney General (Lieutenant Governor in Alaska) is directed to prepare a ballot title and a summary of the proposition, which is printed at the top of each petition. Similarly, a local government clerk typically is responsible for preparing the ballot title and summary. The Secretary of State is usually responsible for printing petition forms at public expense, but in Idaho the sponsors are responsible for printing the petitions.
|
|
The required number of signatures to place a proposition on the ballot is based on a percentage of the votes cast at the most recent general election or a percentage of the votes cast for Governor (Secretary of State in Colorado). Signatures requirements vary from three percent of the votes cast for Governor in Massachusetts to fifteen percent in Arizona and Oklahoma. The Massachusetts Constitution stipulates a petition must be submitted to the General Court (State Legislature) and will be placed on the referendum ballot only if approved by one-fourth or more of the members in two consecutive sessions. When placed on the ballot, the proposal is ratified if approved by a majority of the votes cast on the proposition provided the majority includes thirty percent or more of the total number of ballots cast in the election.
|
|
The arguments for and against the citizen initiative are similar to the pro and con arguments associated with the protest referendum, and the recall. The early initiative supporters were convinced that the collective wisdom of the voters was superior to that of elective representatives, but recognized that not all needed laws should be enacted by the initiative and the referendum. In theory, the initiative would be exercised only when elected legislative bodies failed to enact needed bills on important subjects or enacted laws not responsive to the wishes of the electorate. Proponents maintain that the initiative
|
|
Numerous arguments against the initiative have been mustered by its opponents - legislators make better laws, poorly drafted initiated statutes create implementation problems, initiative statutes may not be coordinated with related statutes, the wording of the proposition may confuse voters, the initiative oversimplifies issues, "minorities" may be affected adversely by a successful initiative campaign, and governmental inflexibility is introduced if an initiative proposition can not be amended by the state or local legislative body.
|
|
The continued successful use of the initiative is evidence that legislative bodies are not always responsive to the public will. Although the initiative is a patchwork approach to law making, initiated statutes in general have not caused serious implementation problems. Critics notwithstanding, the general electorate has been discriminating in examining the pro and con arguments of an initiated proposition prior to deciding how to vote.
|
|
On balance, the indirect initiative strengthens the governance system because this type has the benefit of the legislative process, including public hearings and committee review, study, and recommendations. Should the legislative body fail to approve the proposition, voters have been advantaged in their decision-making capacity by information on the proposition generated by the legislative process. The indirect initiative is a useful adjunct to the conventional law-making process and can be an effective counterbalance to an unrepresentative legislative body and no more undermines representative government than the executive veto and the judicial veto. A major initiative advantage is the fact it makes the operation of interest groups more visible in comparison with their lobbying activities in a state legislature and a local legislative body.
|
|
Support for the indirect initiative does not suggest that it should be employed frequently. It should be a reserve power of a last-resort weapon and the relative need for its use depends upon the degree of accountability, representativeness, and responsiveness of legislative bodies.
|
|
Constitutional and statutory provisions in twenty-six states of the United States authorize voters by petition to place the question of the removal of all or specified public officers on a referendum ballot prior to the expiration of their terms of office. In addition, municipalities in "home rule" states may draft a new charter or charter amendment providing for the recall. The state legislature in several states lacking constitutional or general statutory "home rule" provisions has enacted special charters for local governments containing authorization for employment of the recall by voters. The constitutional or statutory recall provision in six states excludes judges from the recall. Seven states permit only one attempt to recall an officer during their term of office, but three states allow a second attempt if proponents reimburse the state for the cost of the first recall election.
|
|
The use of the recall is subject to restrictions contained in constitutional, statutory, and local charter provisions. Only elected officers are subject to the recall with the exceptions of the Montana recall law and a small number of local government charters, which permit the recall of administrative officers. Furthermore, most recall provisions prohibit its use during the first 2 to 12 months of an officers' term and during the last 180 days in 5 states.
|
|
Whether the recall is a political or a judicial process varies from state to state on the basis of constitutional or statutory provisions or court rulings. In states where the recall is a political process, traditional rights protecting defendants do not apply since the authorizing provision does not mandate that the targeted officer must be charged with cause - malfeasance, misfeasance, nonfeasance, or violation of oath of office. If the process is a judicial one, the targeted officer enjoys traditional judicial guarantees.
|
|
The recall process, in common with the initiative and the protest referendum, commences with the filing by ten petitioners with the secretary of state or local clerk of a notice of intention to circulate petitions for an election to determine whether a named officer should be removed from office. The notice usually includes a 200 word statement of reasons for the proposed recall, and the named officer may file a 200 word response. Subsequently, the secretary of state or local clerk prints official petitions which are made available to proponents who most commonly are required to collect signatures of registered voters equal to twenty-five percent of the votes cast for gubernatorial candidates in the last election or for candidates for the involved office. California and Georgia have geographical requirements relative to the minimum number of signatures that must be collected in each of five counties or each congressional district, respectively.
|
|
Although the required signatures are collected, a recall election is not held in eight states provided the targeted officer resigns within five or ten days of certification of the required signatures. If an election is scheduled, the reasons for removal of the officer and the officer's defense, up to a maximum of 200 words each, are printed on the ballot. Voters in nine states are limited to deciding whether the officer should be recalled. If the officer is removed, a successor is elected in a subsequent special election. In the other states, voters decide whether to remove the officer and simultaneously vote to elect a successor in the event the officer is removed.
|
|
Early experience with the recall revealed that an officer could be removed from office by a majority vote, but is reelected by a plurality vote if three or more candidates split the votes. To prevent this occurrence, constitutional and statutory provisions and local government charters stipulate that an officer may not be a candidate for reelection if the recall is successful. Furthermore, these provisions stipulate that a targeted officer who resigns may not be appointed to the same or similar office for a period of two years. Officers subject to the recall are not limited in spending their own funds to retain office by state corrupt practices (campaign finance) acts as the result of the United States Supreme Court's ruling in Buckley v. Valeo, 424 U.S. 1 at 143 (1976).
|
|
Classical representation theory is premised upon the belief that regularly scheduled elections are sufficient to ensure that elected officers will be accountable and responsive to the voters. Governmental corruption and unrepresentative governing bodies in the post civil war period in the United States generated several reform movements including the populists whose agenda sought to place the citizens back in control of government. They advocated the recall, initiative, and protest referendum. The latter two were authorized first by a South Dakota constitutional amendment in 1898. The first governmental unit to adopt the recall was the city of Los Angeles whose 1902 "home rule" charter also included the initiative and referendum.
|
|
The original opponents of the recall argued that there was no need for this control device since other methods - impeachment process, legislative address (directing the governor to remove a named officer), and statutes providing for automatic vacating of an office upon conviction of a felony - exist to remove officers who abused the public trust. Opponents also argued the recall would destroy representative government by restraining energetic officers, discourage qualified persons from seeking public office, allow the losing political party a second opportunity to win the office, encourage frivolous harassment of officers, and permit removal of officers for inadequate reasons. Furthermore, it was maintained that the recall would destroy judicial independence.
|
|
Recall proponents advance six arguments. They maintain the device (recall)
|
|
Experience with the recall in general supports the recall proponents. It seldom has been used to remove elected state officers (one governor, eight legislators, and one judge), but has been employed more frequently to remove local government officers. Other removal methods seldom are applied. Although it is difficult to measure, it appears that the existence of the recall encourages public officers to be more accountable and responsive to their constituents. The threat of the use of the recall may cause elected officers to reconsider their positions on issues and/or behaviour and may encourage voters to play a more important supervisory role relative to their elected officers.
|
|
Note to readers: while the United States is the primary case study of the use of legislative recall, the Canadian province of British Columbia introduced legislative re-call (re-election) by petition (40% of registered voters) in 1995.
|
|
The traditional comparison between the instruments of direct democracy and representative democracy no longer has any value when it comes to forming the expression of the will of the people. The representative system is the only real way to give a concrete form to the idea of democracy today, so an analysis of the functioning of the representative system will in reality be a judgement of the functioning of democracy.
|
|
The degree of democracy of a particular state should be measured fundamentally by the effectiveness with which the institutional organs carry out representation and not at all by the degree of survival of techniques of direct democracy. Such mechanisms are not formed as an overall institutional alternative to representative democracy, but at best as a complement.
|
|
Even considered as such, the way in which these mechanisms are judged should at least be cautious. On the one hand, it appears evident that with adequate constitutional treatment they could complement the representative and mediation structures of the political parties, penetrating the decision-making mechanisms of the citizens. However, they are also subject to abuse by governments. The referendum, in particular, has often been used with an anti-parliamentarian and personalised connotation. This has happened in authoritarian regimes that attempted to compensate for the absence of real mechanisms of representation through elections, by resorting to plebiscites, in countries as diverse as Spain in the time of Franco, Chile in the time of Pinochet or Algeria. It has also occurred in democratic regimes such as France in General De Gaulle's time. It appears generally to confirm that referendums that are not constitutionally mandated imply the admission that the instruments of representation have not been capable of solving the problem and frequently encompass a divergent attitude between the executive branch of government and the parliament, if not between the executive branch and its own party.
|
|
Other institutions of direct democracy, like the recall or programmatic vote, present in the Colombian constitution and in some of the United States (such as North Dakota), which permit a certain percentage of the voters (40% in Colombia) to force new elections, should the programme a representative was elected for not have been fulfilled, is rarely used nowadays and lacks of interest.
|
|
To sum up, nowadays representation and direct democracy cannot be considered contrasting choices for the organisation of a democratic system of government. On the contrary, the instruments of direct democracy should be employed with extreme caution, especially in countries in political transition, as they are in contrast to the typical objectives of these processes. Whilst institutional decision-making mechanisms have to be formed and the structures of political parties strengthened in these processes, instruments of direct democracy have often been used as counterproductive authoritarian mechanisms.
|
