In favor of the amendments, it was urged that under the present system the indifferent voters are virtually counted in favor of the measure; that in the presence of any real popular demand for legislation there would be no difficulty in securing the majority of all the votes cast at the election; and appeal was made to the precedent established in case of the legislative assembly, where the votes of a majority of all members of each house are required for the enactment of legislation.1

But the proposals were fiercely attacked as attempts toward the destruction of popular government. Such a regulation, it was urged, in substance makes every vote not cast on any measure a vote against it, and allows the fate of that measure to be decided by the negligence and indifference of the non-voters, instead of by the intelligent vote of electors who have taken sufficient interest in the measure to vote upon it. Moreover, "indifferent voters would be encouraged to be more indifferent. Realizing that no-vote would be counted as a vote against a pending bill, the indifferent voter would take no trouble to examine it. Knowing that his vote would be counted against it, he would not give a whoop whether the bill was good or bad." 4 Further, it was declared that many really popular measures would have failed in the past under such majority requirements,

by a majority of the votes cast thereon and not otherwise." Oklahoma Constitution, art. 5, sec. 3 (1907). "All such measures shall become the law or a part of the constitution when approved by a majority of the votes cast thereon, provided, the votes cast in favor of said initiative measure or part of said constitution shall constitute thirty-five per cent of the total vote cast at said election, and not otherwise." Nebraska Constitution, art. 3, sec. 10 (1912). One-third. Washington Constitution, art. 21, sec. 1d (1912). At the election of 1914 the voters of Oregon defeated an attempt to prevent any "single-tax" legislation in the future, through a constitutional amendment which contained a provision that the section amended should not be amended or repealed except by a two-thirds vote of the electors voting upon the issue. Referendum Pamphlet, 1914, no. 356, p. 97.

1 Majority Rule League, Referendum Pamphlet, 1912, pp. 85-6.

2 E.g., Oregon Journal, Oct. 21, 1912, p. 8, col. 2.

Taxpayers' League, Oregonian, Nov. 3, 1912, p. 15, col. 3; Oregon Journal, Oct. 3, 1912, p. 8, col. 2; Oct. 21, 1912, p. 8, col. 2. 4 Oregon Journal, Oct. 3, 1912, p. 8, col. 2.

and the experience of Oklahoma was also cited to show the difficulties in the way of legislation under a similar provision.1 It is certainly true that some of the measures which would have failed under the proposed majority requirements, as the local initiative and referendum amendment, the corrupt practices bill, the employers' liability bill, the presidential primary bill, and perhaps others, are now, at least, favored by most of the voters.

3

The Amount of Legislation Enacted

-

At the first election under the new system in 1904, all three of the measures submitted to the voters- a proposal for a constitutional amendment referred by the legislative assembly and two bills initiated by petition - were approved by the voters. At the election of 1906 eight measures one bill referred by petition, three initiative bills and four initiative amendments were approved, and three measures two initiative bills and one initiative amendment - failed. Of the measures submitted at the election of 1908 - two amendments referred by the legislature, two acts referred by petition, five initiative bills and three initiative amendments - twelve in all, were approved, and the other seven-two amendments referred by the legislature, two acts referred by petition, and three initiative amendments— failed. Nine measures were approved in 1910 one act referred by the legislature, four initiative bills, and four initiative amendments and twenty-three failed, including four amendments and one act referred by the legislature, one act referred by petition, three initiative amendments, and fourteen initiative bills. At the election of 1912, eleven measures passed, including two amendments referred by the legislature, one act referred by petition, three initiative amendments, and five initiative bills; but

1E.g., People's Power League, Referendum Pamphlet, 1912, pp. 34-5, 87-90. Cf. Equity, vol. 13, pp. 63–5 (1911), and, especially, W. F. Dodd, Revision and Amendment of State Constitutions, pp. 133-4, 185-200 (1910).

twenty-six measures failed, including four amendments referred by the legislature, two acts referred by petition, five initiative amendments and fifteen initiative bills. Four of the five acts referred by petition at the special election of 1913 were approved and the other rejected. Of the twenty-nine measures on the ballot at the election of 1914 · eight amendments and two acts submitted by the legislature, and twelve amendments and seven bills initiated by petition-only four were approved by the two constitutional amendments submitted by the legislature and two initiated by petition.

voters

In general, the greater the number of measures on the ballot the fewer in proportion are adopted at the election. But only four of the twenty-nine measures of 1914 were ratified, in comparison with the eleven of the thirty-seven measures of 1912.

Only fifty-one of the total of one hundred and thirty-six measures, or a little over one-third, were adopted by the voters. About the same proportion of statutes and of constitutional amendments were adopted, twenty-eight of the seventy-five statutes, and twenty-three of the sixty-one amendments. Further, it appears that eight of the twenty-seven measures submitted by the legislative assembly and eight of the fourteen measures referred from the assembly by petition, altogether sixteen of the forty-one measures, were adopted, and that thirty-five of the ninety-five initiative measures were adopted. That is, the promoters of initiative measures were sustained in nearly the same proportion of cases as was the legislative assembly.

The decreasing proportion of the measures adopted at the general elections is doubtless due chiefly to the voters' difficulty with the increasing burden of the ballot. "The people are tired," and many of them become more and more inclined to use their votes as a protest against the excessive use of direct legislation. The conservatives are congratulating themselves upon the fact that the abuse of direct legislation is thus "working out its own

1

remedy." But some meritorious and needed legislation has suffered from this attitude. "An overloaded ballot . . . is a menace to the fullest usefulness of direct legislation, for by presenting too great a task to the voters it invites a general determination to vote no regardless of the fact that many of the measures that are proposed may have considerable merit." 2

But, as in the case of legislation by the representative assembly, the proper test of direct legislation does not lie in the number of measures enacted or defeated, but rather in the character of the measures enacted or defeated."

4

The Rationality of the Vote

1. The Confusion of the Measure with the Referendum. Voters have sometimes, perhaps often, confused the referendum with the measure referred, and so their votes have at times had the effect opposite to that intended. This situation has been considered serious enough to call for a proclamation of explanation of the matter to the voters by the secretary of state and for numerous instructions by the press.

2. The Identification of Measures.

The inadequacy of ballot titles, especially considering the mass of measures submitted at the elections, in many cases has

1 Oregonian, Nov. 6, 1914, p. 10, col. 1.

Eugene Register, Nov. 7, 1914, p. 4, col. 1. Below, pp. 121-3.

Oregonian, Jan. 26, 1911, p. 10, col. 3.

♦"Probably the best guide for the voter to follow would be to ask himself the question: 'Am I in favor of the bill becoming a law?' If so he votes 'yes.' If he is not in favor of it becoming a law he should vote 'no.' The voter votes directly upon the measure before him, and not on the question of sustaining the referendum petition. Voters must bear in mind solely that if they are in favor of any measure they vote 'yes,' and if opposed to it they vote 'no.' This same question has arisen prior to other elections and it is not unlikely that many have voted contrary to their desires by reason of their not knowing how to properly mark the ballot." Ben W. Olcott, Secretary of State, Eugene Register, Nov. 4, 1913, p. 1, col. 5.

made the identification of measures on the ballot difficult,1 and has thus caused confusion in voting. This has been true particularly in those cases in which two or more measures on the same subject have appeared on the ballot.

3. Knowledge of the Contents of Measures.

"We think the assertion may safely be ventured that it is only the few persons who earnestly favor or zealously oppose the passage of a proposed law initiated by petition who have attentively studied its contents and know how it will probably affect their private interests. The greater number of voters do not possess this information and usually derive their knowledge of the merits of a proposed law from an inspection of the title thereof, which is sometimes secured only from the very meager details afforded by a ballot which is examined in an election booth preparatory to exercising the right of suffrage."2 "As a matter of fact, all our initiative laws are adopted or rejected on the sole basis of what can be expressed in the titles." 3 The actual amount of "law-making by titles" is doubtless greatly exaggerated by such statements, but it is certainly true that in some cases voters do, indeed, derive their knowledge of the contents of a proposed law "from an inspection of the title thereof." And naturally voters have doubtless sometimes been thus mistaken as to the contents of measures before them. The amendment of 1910 to the local option liquor law, in spite of repeated warnings from press and pulpit, was certainly misunderstood, on account of its ballot title, by a large number of voters, and taken for a restriction of the liquor traffic instead of the opposite, and the amendment might not have been ap

1 Above, pp. 52-3. As an aid against confusion by the mass of measures on the ballot, it is very common for voters to take into the voting booth a "sample ballot" already marked, or a list of recommendations on measures clipped from a newspaper, or a marked list of the numbers of the measures to be voted on.

2 State v. Richardson, Oregon Reports, vol. 48, pp. 309, 319 (1906). Oregonian, Nov. 25, 1911, p. 8, col. 1.

And that inspection, too, apparently takes place only in the election booth in some cases. Above, pp. 95-6.