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Part Two The Alaska Constitution and Commentary, Art.XI The Initiative, Referendum, and Recall

From: The Alaska State Constitution

Gerald A. McBeath

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

(p. 211) Article XI  The Initiative, Referendum, and Recall

Like most of the western states, Alaska's constitution has some populist features, chief among which are provisions in Article XI for the initiative, referendum, and recall. These measures give the people the right to originate law, to respond to—including to repeal—laws passed by the legislature, and to remove officials from office.

Whether the constitution should include such provisions was an issue of debate in the Alaska constitutional convention. Some delegates had a healthy distrust of the legislature and lobbyists and wanted to secure the rights of the people. Other delegates wanted to safeguard the republican form of government. Concern also was expressed about the potential for unreasonable expenditures on special elections.

Delegate Victor Fischer wrote of the opposing views:

Those supporting inclusion of direct legislative authority cited: (1) successful use of the initiative in other states to enact laws upon which the legislature refused to act, (2) the value of additional checks and balances, and (3) the importance of the legislature's awareness that such power exists with the people. They argued that the initiative and referendum represent progressive government, that the ultimate trust should be with the people, not the legislature; and that the provision constituted a means of proving to Alaskans that their rights would be enhanced under statehood. Opponents of direct legislation provisions argued that the two systems are (p. 212) cumbersome, costly, and totally unnecessary when the legislature is truly representative of the people as under the Alaska Constitution, and that the powers of initiative and referendum are outmoded systems instituted fifty years before when legislatures functioned differently. . . . Some also viewed these measures more as tools of organized special interests than as a democratic device of the people.87

The final version of Article XI represents a compromise, which provides for the initiative, referendum, and recall but puts limits on their use. The article takes most of its provisions from the revised (1945) constitution of Missouri. Speaking to its defense, delegate Irwin Metcalf said: “Another reason that makes me strongly in favor of the initiative and referendum is the fact . . . that you are having a strongly, centralized executive department. . . . [T]he people ought to have it in black and white, just what the rights are and not leave it to guesswork” (PACC, 963).

The constitution hedges all three forms of “direct democracy” with restrictions. The initiative, for example, cannot be used to amend the constitution. The legislature may amend an initiative once passed or enact a similar version before it is voted upon. Furthermore, the recall may not be used to remove judges.

The initiative has been a popular form of direct legislation, with over twenty appearing on ballots since statehood. A large number of propositions analogous to initiatives have appeared on the ballot—advisory votes, ratifications of legislative decisions, and policy questions such as moving the state capital. Only one bona fide referendum has gone to the voters, however.

Section 1  Initiative and referendum.

The people may propose and enact laws by the initiative, and approve or reject acts of the legislature by the referendum.

Section 1 establishes the basic right of the people to the initiative and referendum. It is not, however, an absolute right, as section 7 significantly qualifies both the initiative and referendum.

In commenting on section 1, the supreme court has said that the initiative and referendum are powers reserved to the people by the constitution and the laws of the state. Further, “the constitutional and statutory provisions under which they proceed should be liberally construed.” To that end: “All doubts as to technical deficiencies or failure to comply with the exact letter of procedure will be resolved in favor of the accomplishment of that purpose” (Boucher v. Engs-trom, 1974, p. 462).

However, the court has held that the subject of the initiative must be legislation that the legislative body to which it is directed has the power to enact. (p. 213) For this reason, the supreme court rejected an initiative concerning selection of apportionment plans for the unified municipality of Anchorage. It reasoned that prior to unification with the city of Anchorage, the greater Anchorage area borough assembly had no power to bind the subsequently created municipality of Anchorage. Thus, the people also could not accomplish such a result through the initiative process (Municipality of Anchorage v. Frohne, 1977).

The supreme court has also held that the subject of the initiative must be law, following other constitutional requirements of legislation, such as the single-subject rule (Article II, section 13). In Yute Air Alaska, Inc. v. McAlpine (1985), the court upheld an initiative proposition on “Reducing Government Regulation of Transportation.” It found that the proposal on the initiative to seek the repeal of the Jones Act was indeed in the form of “law,” and that covering both federal and state deregulation adhered to the single-subject rule.

Attorneys general have further qualified the initiative. An advisory opinion in 1975 said that the initiative could be used to repeal a law if the deadline for filing a referendum had passed or if voters wanted to overturn a law passed through an initiative. In 1982, the attorney general opined that the “Tundra Rebellion” initiative (which challenged federal ownership of unappropriated federal land in Alaska) was unconstitutional and should be ignored by the executive.88

Section 2  Application.

An initiative or referendum is proposed by an application containing the bill to be initiated or the act to be referred. The application shall be signed by not less than one hundred qualified voters as sponsors, and shall be filed with the lieutenant governor. If he finds it in proper form he shall so certify. Details of certification shall be subject to judicial review.

Section 2 sets out the initial procedures to be followed in attempting to exercise the initiative and referendum. The application must contain the bill or act and signatures of at least 100 qualified voters (in order to limit frivolous attempts). The application is filed with the lieutenant governor, who determines whether the application follows the correct form (meeting the requirements of Article XI and statute). If the lieutenant governor declines to certify the application, review is permitted through the courts.

The supreme court has clarified the lieutenant governor's role in certifying petitions. It has held that anyone may challenge the lieutenant governor's certification of a petition (whether denied or approved) and that there is no time limit for judicial review (Boucher v. Engstrom, 1974).

(p. 214) The judicial review of certification has been challenged in several cases. In Starr v. Hagglund (1962), Walters v. Cease (1964), and Boucher v. Engstrom (1974), the high court held that courts could review an initiative to ascertain its compliance with particular constitutional and statutory provisions, notwithstanding the general limitation that only enacted legislation is subject to judicial review.

Section 3  Petition.

After certification of the application, a petition containing a summary of the subject matter shall be prepared by the lieutenant governor for circulation by the sponsors. If signed by qualified voters, equal in number to ten percent of those who voted in at least two-thirds of the election districts of the State, it may be filed with the lieutenant governor.

Section 3 continues the outline of procedures needed to bring an initiative or referendum before the voters. It is the lieutenant governor's responsibility to prepare a summary of the subject for circulation. At least 10 percent of the total voting in the preceding general election must sign petitions for them to be filed (a number designed to discourage frivolous initiatives and referenda). Moreover, those signing must represent at least two-thirds of the election districts in the state in order to ensure that there is general statewide support for the effort.

The delegates to the constitutional convention discussed at length the number of signatures required to move an initiative or referendum to the ballot. Proposals ranged from 8 through 15 to as high as 25 percent. This exchange between delegates Douglas Gray and Maurice Johnson conveys the flavor of the discussion:

[Gray:] I would like to ask the mover how he arrived at the figure “fifteen.” I had in mind “twenty five” but I don't know what the difference is between eight, ten or fifteen percent.

[Johnson:] I suppose I arrived at my fifteen like you arrived at your twenty five. It was simply an estimate of what I thought would be a far better percentage of the electorate needed to initiate a proposal under this act. It seemed to me that eight percent was a little bit low.

(PACC, 977)

The delegates finally voted 27 to 23 (with 5 absent) to set the percentage of signatures at 10 percent.

On one occasion in 1982, proponents of an initiative petition on “personal consumption of fish and game” challenged the lieutenant governor's crafting of the summary as misleading and biased. The initiative's objective was the repeal of the state's subsistence law, which gave preference to rural residents when a scarcity of fish and game resources made limits necessary. The lieutenant governor's summary said that the proposed initiative would eliminate all subsistence-hunting preferences in Alaska, while it would not eliminate federal subsistence preferences. (p. 215) The supreme court held that the burden of proof rested with the challengers, the summary was not partial, and the lieutenant governor was not obliged to assume that every reader of the petition would take the wording of the summary at precisely its dictionary value. He or she could, said the court, assume that readers would understand that state initiatives are intended to change only state law (Burgess v. Alaska Lieutenant Governor, 1982).

Section 4  Initiative election.

An initiative petition may be filed at any time. The lieutenant governor shall prepare a ballot title and proposition summarizing the proposed law, and shall place them on the ballot for the first statewide election held more than one hundred-twenty days after adjournment of the legislative session following the filing. If, before the election, substantially the same measure has been enacted, the petition is void.

Section 4 completes the outline of procedures for moving an initiative onto the election ballot. It places no time restrictions on the filing of a petition, and it entrusts the lieutenant governor with preparing the ballot title and summary. The initiative is then placed on the ballot of the next statewide election that occurs more than 120 days after the adjournment of the legislative session following the filing. This period of time gives the legislature the opportunity to gauge whether it will preempt the initiative process by passing similar legislation. If it does, then the petition is canceled.

A large area of concern during constitutional convention deliberations on Article XI concerned the potential drafting problems or cost of initiatives. Delegate Jack Hinckel noted that if the legislature acted on the subject of a petition, negating the need for it, there would be no need to hold the election (PACC, 1050). This was accomplished in the last sentence of section 4. The delegates also adopted an amendment eliminating special elections for referenda and initiatives, which accounts for the common requirement that they be voted on in statewide elections, whether primary, general, or a special election called for some other purpose.

The supreme court has interpreted the time period required before the initiative is placed on the ballot, the lieutenant governor's role in placing the initiative on the ballot, and the ability of the legislature to preempt petitions.

In Starr v. Hagglund (1962), the court held that the time requirement for initiative elections was a minimum. It was not the only time during which the initiative could be voted on.

In objecting to an initiative proposition that would deregulate air travel, Yute Air Alaska contended that the constitution required that signatures in support of the initiative be verified before the legislature both convened and adjourned in order for the initiative to be submitted to voters. The verification process done (p. 216) by the lieutenant governor, said the court, did not toll the time in which the initiative was to be considered by the legislature and proceed onto the ballot (or be voided by legislative enactment of substantially the same measure). The high court reasoned that it sufficed that a facially valid initiative be filed (Yute Air Alaska, Inc. v. McAlpine, 1985).

The supreme court dealt directly with the process and conditions by which enactments of the legislature could operate to prevent an initiative from appearing on the ballot in Warren v. Boucher (1975). In that case, the legislature adopted an act on election campaigns that the lieutenant governor, as advised by the attorney general, found was substantially the same as an initiative on campaign contributions and expenditures. The court noted that section 4 did not confer on any agency the power to determine whether acts and initiatives were “substantially the same” (p. 733). However, it found that the legislature had the power to determine a method and that the legislature's delegation of this power to the lieutenant governor (who supervises elections in Alaska), with review by the courts, was satisfactory. The court concluded that the legislature should have reasonably broad discretion in deciding how far the legislative act should differ from the provisions of the initiative.

As noted in the commentary on section 3, the court has not required the lieutenant governor, in crafting the initiative title and summary, to ensure that each reader will take the wording at its precise dictionary value (Burgess v. Alaska Lieutenant Governor, 1982).

Reforming Alaska's campaign finance laws provided a textbook example of what the framers had in mind for section 4. The legislature had balked at tightening campaign contribution limits, which gave disproportionate influence in the Alaska political process to corporations, unions, special interest groups, and Outside interests. Pressure for change began with Democratic governor Steve Cowper, who made campaign finance reform an agenda item during his administration (1986–1990), and pressure increased in the 1990s. In the absence of legislative action, a reform group led by Anchorage attorney Mike Frank collected over 32,000 signatures (well above the minimum) to place on the 1996 ballot an initiative limiting contributions from individuals to $500 and banning corporation, union, and other interest group donations.

Certification of the petition caused legislative leaders to take the issue seriously, hold hearings, and pass a comparable measure in 1996. During the legislative process, however, changes were made to the initiative's text: contributions from outside Alaska and Alaska political parties were limited, but not prohibited. This reflected deliberation in the legislature on first amendment rights of campaigners and the fear of a court challenge if the stricter limits were enacted. Also, the legislature added a ban on fundraising outside of election years. Most reformers, including Frank, were satisfied with the legislative compromise, and the lieutenant governor voided the initiative. The state's leading newspaper opined: “Without pressure from the citizen petition, campaign reform would have (p. 217) gone where it always goes—nowhere. With the initiative as a fallback, reform forces dealt from a position of strength.”89

Section 5  Referendum election.

A referendum petition may be filed only within ninety days after adjournment of the legislative session at which the act was passed. The lieutenant governor shall prepare a ballot title and proposition summarizing the act and shall place them on the ballot for the first statewide election held more than one hundred-eighty days after adjournment of that session.

Section 5 is the companion of section 4 and completes the outline of procedures for moving referenda onto the ballot. It does specify a time period for filing, limiting this to 90 days after the end of the legislative session. The lieutenant governor is responsible for preparing the title and summary of the act, which may not be voted on sooner than 180 days after the end of the legislative session. This time requirement is intended, as is that in section 4, to discourage frivolous filing of petitions while permitting sufficient public debate.

Section 5 was invoked by individuals objecting to the implementation of the Mandatory Borough Act in 1963. They argued that the filing of a petition for a referendum postponed the effective date of legislation pending the outcome of the referendum election. However, the supreme court, in Walters v. Cease (1964), disagreed. It pointed out that the referendum provisions of the Alaska Constitution were unique in that they do not specifically state whether the referral of an act of the legislature suspends the effective date of the act. However, based on the discussions of the constitutional convention as well as reference to analogous provisions (sections 17 and 18 of Article II), the court held that the act would remain in full force until the contrary had been established by the completed referendum process.

Section 6  Enactment.

If a majority of the votes cast on the proposition favor its adoption, the initiated measure is enacted. If a majority of the votes cast on the proposition favor the rejection of an act referred, it is rejected. The lieutenant governor shall certify the election returns. An initiated law becomes effective ninety days after certification, is not subject to veto, and may not be repealed by the legislature within two years of its effective date. It may be amended at any time. An act rejected by referendum is void (p. 218) thirty days after certification. Additional procedures for the initiative and referendum may be prescribed by law.

For either an initiative or a referendum to be adopted, only a simple majority of votes is required, and the lieutenant governor is made responsible for certification of the election. If an initiative proposition attracts a majority vote, it becomes effective 90 days following certification. Unlike ordinary legislation, it may not be vetoed by the governor or repealed within two years of becoming effective. However, it is like ordinary legislation in that the legislature may amend it at any time. If a majority votes for the referendum, the legislative act referred becomes void 30 days following certification. (The constitution does not prohibit the legislature from readopting a law overturned by a referendum.) The last sentence of section 6 gives the legislature the authority to craft additional procedures for both initiatives and referenda.

Several court cases have compared initiatives to ordinary legislation with respect to the amendment provision. In Warren v. Boucher (1975), the high court held that section 6 gave broad authority to the legislature to alter the terms of an initiated law through the process of amendment:

This power amounts to a check or balance against the initiative process. No doubt the legislature was given this power to assure that initiatives which were ill-advised, which might seriously cripple or frustrate the sound workings of government, or which might be impracticable, could be altered or corrected rapidly by the legislature. It was obviously intended by the framers that the initiative process should not be permitted to disrupt vital governmental functions or to impose intolerable burdens upon established administrative systems. To this end the legislature was given the ability to substitute its judgment for that of the proponents of an initiative, (p. 737)

In Warren v. Thomas (1977), the supreme court similarly held that the legislature's amendment of a conflict of interest law, enacted by initiative, was constitutional. It ruled that the legislature had broad powers to amend laws enacted by initiative; in this particular case, it found that the amendment did not effect a “repeal” of the initiated law, which would have violated section 6. This case, said the court in Yute Air Alaska, Inc. v. McAlpine (1985), like the situation tested in the 1975 case, Warren v. Boucher (where the legislature preempted an initiative on campaign disclosures), established that provisions of section 6 vested the legislature “with broad powers to protect the state against the untoward effects of initiatives” (p. 1179).

Section 7  Restrictions.

The initiative shall not be used to dedicate revenues, make or repeal appropriations, create courts, define the jurisdiction of courts or prescribe their rules, (p. 219) or enact local or special legislation. The referendum shall not be applied to dedications of revenue, to appropriations, to local or special legislation, or to laws necessary for the immediate preservation of the public peace, health, or safety.

Section 7 is the most controversial section of this article, in that it limits the range of initiatives and referenda, thus narrowing the power of the people to directly alter laws. Neither initiatives nor referenda may dedicate or eliminate dedications of revenues, make or alter appropriations, or enact or alter local or special legislation. Additionally, initiatives may not be used to change the judiciary's operations through such means as creating courts, changing court rules or the jurisdiction of the courts. Finally, referenda may not be applied to laws needed for protection of the public peace, health, or safety.

Delegates to the constitutional convention were influenced by the experience of other states whose constitutions placed no restrictions on the subject matter of initiatives. They adopted the appropriations restriction to avoid negative experiences of those states, which posed dangers of “rash, discriminatory, and irresponsible acts.”90 Delegate Warren Taylor explained the particular concern they had with give-away programs, which had an inherent popular appeal (PACC, 931).

The supreme court has reviewed—and often rejected—initiatives based on the criteria of section 7. When, in 1963, the legislature passed the Mandatory Borough Act, which incorporated organized boroughs in eight areas of the state, opponents sought to refer the act to the people in a statewide election. The supreme court ruled that the act was local and special legislation within the meaning of section 7, and thus a referendum could not be applied to it (Walters v. Cease, 1964).

When supporters of relocating the capital from Juneau to some other part of the state except Anchorage or Fairbanks prepared an initiative, opponents of moving the capital sought to keep the issue off the ballot by invoking the section 7 restriction against enacting local or special legislation. The supreme court found that the initiative did not fit into the classification of local or special legislation (Boucher v. Engstrom, 1974). The court observed that the question of where Alaska's capital should be located had obvious statewide interest and impact. Then it clarified the meanings of special and local by stating: “Legislation, whether enacted by the legislature or by the initiative, need not operate evenly on all parts of the state to avoid being classified as local or special. The critical element is whether there is a rational basis for the particular classification” (p. 463).

The supreme court has interpreted the meaning of the restrictions on making or repealing appropriations in several cases. In Thomas v. Bailey (1979), the court invalidated the Beirne initiative (Alaska Homestead Act), which made available 30 million acres of state land to residents for homesteading. It determined that (p. 220) section 7 prohibited an initiative whose primary object was to require the outflow of state assets in the form of land as well as money: “[T]he Alaska Homestead Act would substantially deplete the state government of valuable assets just as surely as an initiative allowing to residents of unspecified years large sums of money” (p. 7).

In 1987, the supreme court invalidated the initiative of a political action committee, which sought to sell the municipally owned electric utility (valued at over $30 million) to a private, nonprofit, cooperative for $1. This, too, the court observed was unconstitutionally making an “appropriation” (Alaska Conservative Political Action Committee v. Municipality of Anchorage, 1987, p. 938).

The following year, the supreme court invalidated one section of an initiative, which sought to establish a separate community college system within the state government and require the university to transfer property to the new system. The court found that the proposed initiative made an impermissible appropriation to the extent it specified the amount of property to be transferred, even though it did not spell out exactly what property would be transferred (McAlpine v. University of Alaska, 1988).

The supreme court also invalidated a proposed initiative which would have set limits on attorneys' contingent fee recoveries (Citizens Coalition for Tort Reform v. McAlpine, 1991). The court held that this was an attempt to prescribe a rule of court, which was precluded by section 7.

Section 8  Recall.

All elected public officials in the State, except judicial officers, are subject to recall by the voters of the State or political subdivision from which elected. Procedures and grounds for recall shall be prescribed by the legislature.

Section 8 on recall is more general than the provisions on direct legislation. It simply announces that all public officials, state and local (except judges), may be recalled and gives the legislature authority to establish detailed procedures and criteria. This section has not been subject to judicial interpretation.

Delegates to the constitutional convention debated recall procedures for some time. Victor Fischer proposed an amendment that would have required 20 percent of the electorate to sign a recall petition. The petition would be limited to 200 words and a special election would be held within 60 to 90 days after certification of the petition (PACC, 1233). This and several other amendments were defeated, and the delegates finally voted to allow the legislature to establish procedures. It has established grounds for recall (incompetence, lack of fitness, corruption, or neglect of duties) in statute—AS 15.45.470–720 provides for state officials and AS 29.26.240–350 for local officials—and procedures for reaching the ballot.


87  Fischer, Alaska's Constitutional Convention, 79–80.

88  Harrison, Alaska's Constitution, 209.

89  Anchorage Daily News, May 12, 1996.

90  Fischer, Alaska's Constitutional Convention, 80–81.