In our system, the power to govern comes directly from the people. The Constitution of the United States begins with the words “We the People. . . to order and establish this Constitution.
The first article of the New Hampshire Constitution similarly states that “all government by right emanates from the people …”. exercise that power.
Sometimes we govern through “indirect democracy,” also known as “representative democracy,” including electing people to Congress and the New Hampshire legislature to make decisions on our behalf. The New Hampshire Legislature, which has 424 members, is the third largest representative democracy in the world, behind the United States House of Representatives (435 members) and the United Kingdom House of Commons (650 members).
At other times, such as when New Hampshire voters gather for our annual town hall meetings, we exercise “direct democracy.” For example, this year voters in Dalton approved an emergency zoning ordinance to prevent a new landfill near a state park in the city. Residents of several towns voted to purchase body cameras for police officers. Many city voters have agreed to purchase new fire fighting equipment. Meanwhile, voters in Hudson refused to allocate money to expand the police station, and last year voters in Danbury refused to make their chief of police appointed rather than elected . These examples are just a handful of important decisions that city voters face each year.
The founding fathers were familiar with direct democracy, which dates back to ancient Athens over 2,500 years ago. Indeed, several of the founders, notably those of New England, had themselves participated in direct democracy through municipal assemblies. Having seen direct democracy up close, many Founding Fathers feared that unconstrained majority rule would trample on the rights of those in minorities if adopted on a large scale.
Instead, the Framers established representative democracy, or indirect power, to control people’s direct participation in government. In this form of government, the people can modify or indirectly influence the creation of laws by trying to convince their elected representative to vote in one way or another or by electing new representatives in the next election.
In the early 1900s, many voters became disenchanted with representative democracy. Political machines like Tammany Hall in New York and big corporations like the railroads controlled state and federal governments. Ordinary people felt their voice was not heard or considered by their elected representatives. Social activists and political reformers led by Pres. Teddy Roosevelt started the Progressive Movement to expand the role of ordinary citizens in government.
A number of changes transferred considerable power from elected representatives to the people, including the process for electing US senators. Prior to 1913, they were chosen by state legislatures. That year, voters passed the 17th Amendment giving the people the right to directly elect their senators, a right we still hold today.
The presidential primary is another holdover from the expansion of direct democracy. Before the progressive era, voters had little or no say over who ran for president. The leaders of the political parties chose the candidates. That changed in 1910 when Oregon held the first presidential primary. Several states have followed suit, including New Hampshire, which hosted the country’s first primary elections since 1920.
During the progressive era, many states also passed changes to their state constitutions that gave voters a direct voice in legislation. The most common examples of these changes are referendum and initiative laws. In a referendum, a state legislature drafts a proposed law and then submits it directly to voters for their approval or defeat. An initiative is a private member’s bill that begins directly with voters and only appears on a ballot if its supporters obtain the number of voters’ signatures required by state law. The people then decide whether this initiative should become a binding law with a vote for or against.
In 2020, election initiatives in Arizona, Montana, New Jersey and South Dakota legalized recreational marijuana. A California initiative restored the right to vote for felons convicted on parole. Meanwhile, voters in Maine passed a referendum introduced by lawmakers approving state law that eliminated religious and philosophical exemptions for the vaccination of students and healthcare workers.
New Hampshire has not jumped on the bandwagon to expand direct democracy. Delegates to state constitutional conventions in 1912 and 1920 rejected calls to amend the state constitution to include processes of direct voter participation through initiative or referendum. In 1999, the New Hampshire Supreme Court highlighted this story when it ruled that it was unconstitutional for the legislature to submit a school funding proposal directly to voters for approval.
With the exception of town halls, New Hampshire remains fundamentally a representative democracy. Nevertheless, the people play a vital role in the government of the state. New Hampshire voters choose their state officials, senators, governor, and all other state and local elected officials every two years. These short terms make our condition unusual. Vermont is the only other state in which the governor is elected every two years. In the majority of states, state senators serve four-year terms.
And because of the size of the New Hampshire Legislature (400 Representatives and 24 Senators), each State Representative represents 3,300 voters. At the other end of the spectrum, each member of the California State Assembly represents more than 450,000 voters. So even though the New Hampshire Constitution does not allow for direct voter participation in the legislative process, New Hampshire voters have considerable influence over state law and legislative policy.
(William Delker was appointed to the New Hampshire Superior Court in 2011 and currently sits on Hillsborough County Superior Court – Northern District in Manchester.)