The Referendum Process in Maryland: Balancing Respect For Representative Government with the Right to Direct Democracy

Abstract

This article will examine the Maryland referendum petition process to determine whether any changes in the current law should or could be made. This includes whether the legislature should reverse the holding in Whitley, whether it should add additional requirements to and restrictions on the signature gathering process, and whether the percentage of voters needed for a successful challenge should be increased.First, as a matter of policy, should the law be changed? For example, does it strike the proper balance between respect for the legislative process and allowing for more voices in legislative matters by the public at large? Does it provide the right balance between protecting against fraudulent petition signatures and making the process so difficult as to be virtually impossible to get a referendum on the ballot?Second, do any proposed changes to the process have the potential to be in violation of the United States Constitution? The Supreme Court has held that overly onerous regulation of the petition process can, in some cases. infringe on the First Amendment rights of petition circulators.And finally, as to proposed changes that might be both beneficial and constitutional, as a political matter, do they have any significant chance of passage? Some of the proposed changes could be implemented by normal legislative action. However, some of the proposals would require amending the Maryland Constitution, which could be considerably more difficult, requiring a three-fifths vote of both houses of the legislature and approval by the voters.Section II of this article will explain the history of the Maryland referendum process and put it into context with similar provisions in other states. Section III will describe the Whitley case and its effect on the legality of the computer-assisted signature-gathering process in Maryland. Section IV will examine some of the proposed changes to the process by looking at their wisdom as a matter of policy, any federal constitutional problems they might raise, and whether they might be politically feasible to implement.