Carlos Chévere Lugo*

“The people, being subject to the laws, ought to be their author; the conditions of the society ought to be regulated solely by those who come together to form it.”

Jean-Jacques Rousseau[1]

I. Introduction

A. Constitutional Crisis of 2019
B. Environmental Controversies
C. Politics and Corruption
D. Health Controversies and the Fight Against Health Insurance Companies

II. Constitutional Change in Puerto Rico

A. Rewriting the Rules: The Struggles of Amending Puerto Rico’s Constitution
B. The Forgotten Mechanism: Why Puerto Rico Needs a Constitutional Convention
C. State Constitutional Conventions

III. Direct Democracy and Constitutional Amendments

A. Introduction to Direct Democracy
B. Let the People Decide: The Power of Ballot Initiatives in Direct Democracy
C. Holding Leaders Accountable: The Case for Recall Elections in Puerto Rico
D. Filling the Leadership Gap: The Case for a Lieutenant Governor in Puerto Rico

IV. Conclusion

I.   Introduction

A constitution is a set of fundamental rules that establish the legal basis for a society, protecting citizens’ rights and dignity, creating government institutions, and guiding political processes.[2] This definition is rooted in the belief that a constitutional document will have more validity and effectivity because it corresponds to the culture and faithfully synthesizes a people’s unique political and social lifestyle. Thus, it is much more than a body of legal rules. The closer the constitutional charter is to serving as an instrument for interpretation and guide of the direction society is taking, the more alive its meaning, responsibility, and effectiveness will be.[3]

Constitutions usually contain two main parts: an organic (structural) part and a dogmatic part, or one enshrining individual rights. The dogmatic part of the Constitution establishes political, economic, and social rights.[4] The organic part refers to the norms that define the state itself; the form it takes, its system of government and political regime, its territorial division, references to the population, nationality, citizenship; those determining the authority of public power, its distribution in branches and bodies, the procedures for the appointment of rulers and their powers, the rules on the exercise of power, the controls and limitations to which rulers are subject, the terms of their mandate; and, in general, the conditions under which the state must organize itself and exercise sovereign power.[5] When the Constitution reflects changes in basic attitudes, it is a living force that unites society and promotes its normal development. When it does not, it becomes a destructive source that constitutes an obstacle to healthy development and leads to society’s disintegration.

Beyond the serious democratic deficiencies experienced by Puerto Rico due to the regrettable lack of political powers in our relationship with the United States—highlighted by Congress’s imposition of the Financial Oversight and Management Board (FOMB) under  PROMESA,[6] recent events underscore the urgent need for constitutional reforms to advance the democratic rights of self-governance.

A. Constitutional Crisis of 2019

The constitutional crisis in Puerto Rico began with protests against Governor Ricardo Rosselló.[7] The leak of offensive private chat messages and allegations of corruption and mismanagement incited these protests.[8] The demonstrations reflected a deep-seated frustration with political leadership and governance. The immediate cause of the protests was the release of almost 900 pages of chat messages from a private group chat on Telegram involving Governor Ricardo Rosselló and members of his inner circle. The messages contained derogatory, misogynistic, and homophobic comments, as well as jokes about the victims of Hurricane Maria.[9] These chats were symptomatic of broader corruption issues, mismanagement, and a lack of sensitivity toward public suffering, especially during the aftermath of the devastating Hurricane Maria in 2017. The public’s outrage was further fueled by ongoing economic austerity measures and a perceived lack of effective leadership in rebuilding the island’s infrastructure. The protests increased, with thousands of Puerto Ricans taking to the streets. Under immense pressure, Rosselló announced his resignation on July 24, 2019, which would take effect on August 2, 2019.[10] This marked the first time a Puerto Rican governor resigned before their term ended.

B. Environmental Controversies

In recent years, Puerto Rico has faced numerous environmental issues and governmental conflicts, underscoring the importance of ecological conservation. One of the most pressing concerns has been the disposal of coal ash by the AES power plant in Guayama, which locals and environmentalists claim has led to water and soil contamination, adversely affecting health.[11] Another contentious issue is land development, particularly in ecologically sensitive areas like the Northeast Ecological Corridor, which is vital for nesting leatherback turtles.[12] The construction of hotels and facilities has sparked protests. Managing the island’s natural resources, including forests and water, has also been problematic, with controversies surrounding deforestation and the proposed privatization of public lands and beaches.[13] Additionally, the government’s response to natural disasters such as Hurricane Maria has been criticized for being slow and inadequate, exacerbating the island’s ecological and economic issues.[14] Lastly, energy policy debates, especially the transition from fossil fuels to renewable sources, have been intense, with opposition to the government’s endorsement of natural gas as a “bridge fuel,” advocating a quicker shift to renewables instead.[15] These controversies underscore the ongoing challenges in balancing economic development, effective governance, and environmental conservation in Puerto Rico.

C. Politics and Corruption

Over the years, the FBI has conducted multiple raids and made several arrests involving Puerto Rican politicians and government officials on charges ranging from embezzlement and fraud to bribery and extortion. These operations often reveal how deeply entrenched corruption is within various levels of government.[16]

D. Health Controversies and the Fight Against Health Insurance Companies

Access to affordable healthcare coverage is limited in Puerto Rico due to high costs and complex pricing structures. This disproportionately affects the island’s economically challenged population. Additionally, frequent denials of claims and delays in service approvals exacerbate patient care, often entangled in excessive bureaucratic processes. The restricted provider networks force patients to travel long distances or limit their healthcare choices, especially in rural areas. Lack of transparency and effective communication from insurers leaves many policyholders needing clarification about their coverage specifics and facing unexpected bills.[17] Finally, there is significant public concern over inadequate regulatory oversight, with calls for stricter enforcement to ensure that insurance companies provide fair and comprehensive service. These issues collectively underline the need for systemic reforms to enhance the efficiency and fairness of Puerto Rico’s health insurance landscape.[18]

In the dynamic landscape of Puerto Rican politics and governance, the call for constitutional reform has resonated with increasing urgency. As such, Part II of this article explains the process of amending the Constitution and recommends a constitutional provision for an automatic periodic vote on whether to call a constitutional convention.[19] Part III explores the pivotal role of direct democracy and its mechanisms—ballot initiatives, recall elections, and the introduction of a lieutenant governorship—in fostering a more engaged and responsive democratic process.[20] It delves into how these instruments can empower the Puerto Rican populace, ensuring their voices are heard and acted upon with tangible legal and political consequences. These considerations are framed within the broader narrative of aligning Puerto Rico’s constitutional framework with contemporary societal values and the evolving expectations of its citizenry. This article seeks to contribute to the ongoing dialogue on Puerto Rico’s constitutional identity, advocating for amendments that address its people’s immediate needs and laying the groundwork for sustainable, democratic, and inclusive development. Through this analytical journey, we aim to underscore the indispensability of constitutional evolution in the quest to enhance the democratic rights and collective well-being of the people of Puerto Rico.

II. Constitutional Change in Puerto Rico

There are three ways to begin constitutional amendments: (1) by the legislature’s proposal, (2) by constitutional convention, and (3) by popular initiative. The School of Public Administration recommended that the Constitution of Puerto Rico should have the first two methods and not the third.[21] The ways of initiating constitutional amendments are defined in §1 and §2 of Article VII, respectively. §1 outlines the procedure for initiating a constitutional amendment, while §2 regulates the procedure for constitutional review. §3 of Art. VII sets limits on both methods.[22]

A. Rewriting the Rules: The Struggles of Amending Puerto Rico’s Constitution

The process of amending our Constitution, which can be found in Article VII §1 of the Puerto Rico Constitution, is shared with the people.[23] An amendment to the Constitution is a specific change to some right or power designation contained within the Constitution.^[24] In contrast, a constitutional review provides for renewing even the governance vision that our constituents had in 1952 to adjust as many clauses as necessary to meet the new needs of the Puerto Rican people.

In summary, for a constitutional amendment to be valid, §1 provides that: (1) it requires the approval of at least two-thirds (2/3) of the members of each legislative chamber; (2) it requires that the amendment be submitted to the electorate in a special referendum or at a general election if approved by at least three-fourths (3/4) of the total number of members of each house; (3) each proposed amendment shall be voted on separately; (4) the number of proposed amendments must be limited to three in a single referendum; (5) any amendment shall contain its terms of validity; (6) the amendment must receive the affirmative vote of a majority of the electors voting on the matter,[25] and (7) the proposed amendment be published at least ninety (90) days before the referendum.[26] In Puerto Rico, the constitutional provision on referendum is limited to amendments to the Constitution (Art. VII) and the abolition and consolidation of municipalities (Art. VI, §1).[27]

On March 3, 1952, voters ratified the Constitution of Puerto Rico in a referendum. Despite ratification by the people of Puerto Rico, the United States Congress conditioned the adoption of the document by amending three sections. On July 3, 1952, the U.S. Congress formally requested that the Puerto Rico Constitution be amended. In Puerto Rico, the Constitution has been amended seven times. The first three amendments that Congress required for the approval of the Constitution,[28] plus four amendments initiated by the Legislative Assembly after the Constitution of Puerto Rico was ratified.[29]  The most crucial constitutional provision Congress required to be eliminated was §20 of the Bill of Rights.[30] This section granted the right to free primary and secondary education.[31] It also granted the right to work,[32] health,[33] sustenance,[34] clothing,[35] housing,[36] healthcare,[37] and essential services.[38] In addition, it granted rights for unemployment, sickness, breastfeeding, and the right of minors to receive unique benefits. The rights given in §20 were highly related to the economic development that the creators of our Constitution envisioned.

The second amendment required by the U.S. Congress was to add a fourth sentence to §5 of Article 11. The amendment provided that no public funds shall be used to support institutions other than the State’s. The third amendment that Congress required to approve the Puerto Rico Constitution included a second sentence to §3 of Article VII. The purpose of this amendment was to set the limits of any constitutional amendment or revision. These three amendments required by the U.S. Congress were ratified in a referendum on November 4, 1952, effective January 29, 1953.

After the changes of Congress were included and the Constitution and the amendments were ratified, four constitutional amendments proposed by the Legislative Assembly were passed. The first amendment provided that the Supreme Court could be divided into chambers, with at least three judges, and that decisions involving the constitutionality of a law did not have to be submitted to the plenary. This amendment was approved in a referendum on the day of the general elections, November 8, 1960.[39]

The second amendment was related to the budgetary margin. The Jones Act, and later the Federal Relations Act, provided that the budget margin would be a maximum of 10% of the budget. The amendment transferred that authority to the Puerto Rico Constitution and increased the margin to 15% of average annual rents. The constitutional amendment was approved by referendum on December 10, 1961.[40] The following amendment was related to the substitution of district legislators, delegating the method of filling vacancies to laws. This amendment was approved by a referendum on the same day as the elections, November 3, 1964.[41]

Constitutional amendments were proposed in 1994 and 2012 with little success. The 1994 amendments were introduced by the administration of Governor Pedro Roselló González.[42] The people rejected the proposal with the two constitutional amendments in a referendum held on  November 6, 1994. The administration of Governor Luis Fortuño Burset introduced the 2012 constitutional amendments.[43] The people rejected the proposal with the two constitutional amendments through a referendum on August 19, 2012. There hasn’t been a referendum on a proposed constitutional amendment since 2012.

The Supreme Court of Puerto Rico has acknowledged the complexity of the constitutional amendment process.[44] Historically significant, this stringent procedure carries implications for the democratic essence of Puerto Rico’s constitution. To enhance the democratization of Puerto Rico’s constitution, a less rigorous approval process for constitutional amendments should be considered, potentially leading to significant implications for the citizens of Puerto Rico. One potential reform to render Puerto Rico’s constitutional amendment process less stringent would be to reduce the current threshold required for legislative approval of proposed amendments. Specifically, this would entail substituting the existing Article VII, §1 two-thirds supermajority requirement in each legislative chamber with a simple majority vote for the submission of proposed amendments to the electorate.

B. The Forgotten Mechanism: Why Puerto Rico Needs a Constitutional Convention

Section 2 of Article VII of the Constitution of Puerto Rico establishes the process to convene a constitutional convention.[45] The review process is much more complex, and our only reference is the Constitutional Convention of 1952. For such an exercise, our Constitution establishes that the following steps must be followed:

First, the Legislature must approve—at least by two-thirds of its members—a concurrent resolution that creates a consultation with the voters on whether they want a constitutional convention to review the current Constitution. In addition, the proposal must be submitted to the people by referendum on the same day as the general elections so that they approve the review through voting. Second, the electorate must be consulted to determine whether they endorse the Legislature’s proceeding with the constitutional review. Third, if the people favor the constitutional review, the Legislature must provide by law how the delegates of a Constitutional Convention will be elected. Finally, the revision must be submitted to the people in a special referendum, and a majority of the votes must ratify or reject it.

As a constitutional review process has never occurred, our only reference is the Constitutional Convention that met in 1952. Once the delegates to the Constitutional Convention are elected, they adopt an internal regulation that will regulate the work and parliamentary process of the convention. The convention is organized and chooses its governing body, such as the president, vice president, sergeant at arms, etc. The various substantive tasks of the review are worked on by committees that eventually discuss their progress before the entire assembly. Once the work leads to a revised proposal, a special referendum must be held to come into force.

C. State Constitutional Conventions

This article section will provide a general overview of how constitutional conventions operate in the states. Imagine if the citizens of a state, driven by a collective desire for change, could hold a constitutional convention. This convention would serve as a platform to draft the desired changes and submit them to the people for approval. Such a Constitutional Convention is not just a tool but a powerful instrument in the hands of the people, a testament to the strength of direct democracy.[46] Each state has different rules for revising their constitution (which may include replacing it entirely).[47]

Amending or revising the U.S. Constitution is far more burdensome than what’s generally required for state constitutions.[48] The U.S. Constitution has been amended only twenty-seven times in 235 years. It has never been subject to a complete revision, while the average state constitution includes 115 amendments and has been revised five times.[49] This can be explained by the difference in the Federal Constitution’s design vis-à-vis the state constitution. The U.S. government—unlike state governments, which have inherent state power—is a government of delegated powers, having only those specific powers given to it in the federal Constitution and the other powers delivered implicitly from those powers expressly granted. During the nineteenth century, the constitutional convention was pivotal as the primary instrument of direct democracy in the United States.[50] In recent times, the constitutional convention has lain dormant.[51] The last time voters approved a constitutional convention question was in 1996 in Hawaii. The question was approved in a vote of 50.5% to 49.5%. Although approved, its passage did not result in a convention being held.[52]

The most recent constitutional convention was held in Rhode Island in 1984.[53] The State of Rhode Island will ask the voters in 2024 to approve or reject a constitutional convention.[54]  The House of Representatives of the State of Louisiana recently approved the call for a constitutional convention to revise the state’s 50-year-old constitution.[55] In 2022, Alaska, Missouri, and New Hampshire voters considered and rejected periodic mandatory ballot-referred constitutional convention questions.[56] All three proposals were defeated by approximately two to one margin. In 2012, Alaska, Ohio, and New Hampshire voters considered and rejected periodic mandatory ballot-referred constitutional convention questions.[57] An approximately 2 to 1 margin defeated all three proposals.[58] In 2010, a majority of Maryland voters who voted on the issue favored a constitutional convention. Still, the question failed because the Maryland constitution specifies that the convention is called only if “a majority of voters at such election . . . shall vote for a Convention . . . .”[59] On several occasions, unsuccessful constitutional conventions whose recommendations were rejected at the time set a positive agenda for a state constitutional change that occurred more piecemeal over a long period.[60]

While the specifics of calling for a constitutional convention vary from state to state, the process follows two steps. First, the legislature must vote to place the question on the ballot, often requiring a supermajority. Second, the people must approve the question on the ballot, indicating their support for the convention. Though its specifics vary, this process is crucial to state governance.[61]

In fourteen states, the question of whether to call a constitutional convention is periodically required to be placed on the ballot.[62] In four states, the constitution explicitly permits the people to ask whether to call a constitutional convention by initiative. However, in eight states—Arkansas, Indiana, Massachusetts, Mississippi, New Jersey, Pennsylvania, Texas, and Vermont—the state constitution does not call for a constitutional convention.

The details outlined in the constitutional provisions governing the call of a convention vary significantly among states. Some constitutions provide no guidance, and some delegate responsibility for establishing convention procedures to the legislature.[63] Other states offer significant guidance while generally allowing the convention to establish the rules for its proceedings.[64]

A few state constitutions lack guidance on selecting convention delegates.[65] Some state constitutions specify the number of delegates but do not determine their qualifications or how they should be chosen.[66] The constitutions of several states establish the number of delegates, the requirements for eligibility, and the selection method. Among such states, many provide that the delegates shall have the same qualifications and be chosen in the same manner as members of the state legislature.[67] Some states permit party affiliation to appear on the ballot, but others prohibit party designation.[68] Missouri provides a “primary” for party nominations but still prohibits party designation on the ballot.[69]

Two reasons may underlie the infrequent recent use of the power to call for a constitutional convention. First, there is a fear that once a constitutional convention is called, it will open Pandora’s box and result in the delegates running wild and proposing constitutional changes beyond anything imagined by the electorate who authorized the calling of the convention. This fear highlights the need for careful consideration and control.[70] Second, there is a concern that a constitutional convention would be a waste of time. Elected delegates would arrive with an agenda to enact many controversial changes on heated topics. One answer to these concerns is the calling of a limited constitutional convention, which could provide a more focused and productive platform for change.[71]

Can a constitutional convention be convened and limited explicitly to consideration of specified issues? The answer is clearly “No” in some states. The constitutional convention limitations in Puerto Rico are outlined in §3 of Art. VII and are the same as those of a legislative referred constitutional amendment. The Montana[72] and Alaska[73] constitutions mandate that any constitutional convention must be one of unlimited powers. The constitutions of Alabama,[74] Illinois[75] and Michigan[76] are not quite as explicit, but a fair reading requires that any constitutional convention be of unlimited scope. The Kansas,[77] North Carolina,[78] and Tennessee constitutions,[79] on the other hand, explicitly authorize the calling of a limited constitutional convention.

Constitutional conventions in the states play a crucial role in fostering direct democracy by providing a formal mechanism for citizens to participate actively in constitutional reform and governance. These conventions allow for reviewing and potentially revising a state’s constitution, enabling it to adapt to contemporary needs and values. By involving a broad spectrum of stakeholders, including elected delegates and the general public, constitutional conventions ensure that the voices and interests of the populace are reflected in the foundational legal framework. This participatory process enhances the legitimacy and responsiveness of the Constitution, reinforcing democratic principles and empowering citizens to shape the laws that govern them directly. Constitutional conventions are vital for maintaining a dynamic and responsive democratic system that evolves in line with societal progress and challenges.

III. Direct Democracy and Constitutional Amendments

This article segment critically examines the transformative potential of direct democracy in reformulating Puerto Rico’s constitutional framework. It meticulously analyzes pivotal mechanisms—such as ballot initiatives, recall elections, and the establishment of a lieutenant governor—asserting that these instruments are essential for fostering a participatory and accountable government. By investigating the intricacies of direct democracy as implemented in various U.S. states and other jurisdictions, this section aims to provide a comparative framework that enables Puerto Rico to adapt these methodologies to enhance its democratic processes. The discourse situates these proposals within a broader context of constitutional reform, underscoring their significance in empowering citizens, strengthening governmental accountability, and aligning Puerto Rico’s governance with the evolving paradigms of democratic principles.

A. Introduction to Direct Democracy

Direct democracy is not a new concept. It has taken many shapes throughout history and in different legal orders. Direct democracy can also be considered the concept of active citizenship or ius active civitatis.^[80] Public votes on proposed laws by assembled citizens occurred in ancient Greece (the ecclesia).^[81] The ecclesia met at a hill that formed a national theater in downtown Athens that could hold about 6,000 persons. All adult male citizens had the right to speak when the Assembly deliberated.^[82]

The Roman Republic also adhered to the principles of direct democracy, enabling citizens to engage in the legislative process and veto legislative proposals by the Roman Senate.^[83] The concept of plebi scitum, denoting resolutions passed by the Plebeian assembly that held legal enforceability over its constituents, highlights the participatory nature of citizen involvement in the democratic framework. This empowerment of citizens is similarly exemplified in the historical Germanic societies, where consensus-based decision-making through acclamation was the norm.^[84]

Switzerland is considered the home of direct democracy and developed a sovereign annual assembly for all men in its community (Landesgemeinde).^[85] In the 1300s, several Swiss cantons (sovereign districts) adopted the referendum. The first known annual assembly is that of the canton of Schywz, which took place in 1294. The other first annual assemblies were those of 14th-century rural German-speaking cantons. In city cantons like Zurich, power was exercised by a nobleman, a bishop, or a small council, but the popular assembly was consulted to consent.

The concept of referendum began to be used in the 15th century when decisions about diets were ordinarily subject to ratification by local communities. The diets were adopted ad referendum.[86] The first national referendum was held during the French occupation of Switzerland in 1802. It was a vote to approve the Constitution that Napoleon imposed.[87] In the early 19th century, Switzerland added the citizen referendum to its national constitution. A procedure to exercise the power of veto was established in four cantos. Switzerland greatly expanded the scope of referendums in the Federal constitutional revision of 1874. Since then, “the Swiss people have made a significant proportion of their political decisions through direct legislation.”^[88] In 1891, Switzerland amended its constitution to permit the people to amend it by initiative.^[89]

Direct democracy has been an integral part of the United States since the establishment of the first towns in the American colonies during the 1600s. In particular, the New England townhall meetings served as a platform for citizens to propose new laws and deliberate on legislation presented by their elected representatives. This tradition of citizen participation was further institutionalized in the Pennsylvania Constitution of 1776, which included provisions for removing public officials.^[90] Between 1776 and 1780, the thirteen colonies formulated and ratified written constitutions. In two colonies, Massachusetts and New Hampshire, a citizen convention was convened to draft the constitution, which was subsequently submitted to the populace for approval, demonstrating the enduring legacy of direct democracy in the United States.^[91]

South Dakota was the first state to adopt initiative and referendum voting in 1898.^[92] The modern democratic tools available in the United States today were created during what is known as the Progressive Era.^[93]  The institutions that emerged from this era were expected to give citizens a greater voice in state-level policymaking. The primary purpose of adopting these tools was to weaken wealthy interests over state legislators. ^[94] The view under this era was that citizen lawmaking could control the unrepresentative legislature. ^[95]

At the federal level, direct democracy was not part of the Founding Fathers’ original design. The Federalist Party, for example, detested direct democracy. The ideal democracy for the Founding Fathers was one in which representative institutions insulated the popular majority. Direct democracy in the United States has been limited to state and local governments. At the federal level, the founders found direct democracy as the antithesis of a republican form of government.^[96] That is why, for example, amending or revising the federal constitution is rigorous. It has only been amended 27 times since its ratification.

B. Let the People Decide: The Power of Ballot Initiatives in Direct Democracy

The Puerto Rican constitutional system does not recognize the power of citizens to approve legislation by direct vote of the People. The legislative power resides solely in the Legislature. Projects by petition aim to—in a limited way—recognize the power of a citizen to present legislation. However, no legislator must submit legislative proposals that their constituents propose to them.[97] If a project is submitted by petition, there is no obligation to take it to public hearings, much less to a legislative body vote. To have a more in-depth conversation about the democratic rights for the future of Puerto Rico, this section will survey the different ways ballot initiatives are done in the states.

 i. Direct Democracy in Action: How Ballot Initiatives Work

Ballot initiatives are the most popular form of direct democracy.[98] Citizen-led ballot initiatives allow voters to promulgate new laws or constitutional amendments via direct democracy.[99] The ballot initiative allows the people to bypass the legislature and propose legislation, either a statutory measure or an amendment to the state constitution, for consideration by the voters of an election.[100] There are two basic types of ballot initiatives. A direct initiative is placed directly on the ballot once supporters gather the requisite signatures.[101] After supporters gather the requisite signatures, an indirect initiative goes first to the legislature (rather than straight to the ballot).[102] There are two direct ballot initiatives: constitutional amendment and statutory.[103] When passed, a constitutional amendment initiative amends a state’s constitution,[104] while a successful statutory initiative adds or modifies a state or city government’s regulatory code.[105]

Nineteen States have adopted the direct initiative. Eleven states in the United States offer the direct initiative constitutional amendment and statute.

The number of signatures required for directly initiated state statutes and constitutional amendments varies significantly from state to state. In Colorado, for example, supporters must collect petition signatures equal to 5% of the votes cast for Secretary of State in the last election to place an initiated constitutional amendment or statute on the ballot.[125] In Arizona[126] and Oklahoma,[127] supporters must collect petition signatures equal to 15% of the voters who voted for Governor in the last election to place an initiated constitutional amendment on the ballot.

ii. Limits on Citizen Lawmaking: Subject Matter Restrictions

Every state that has adopted the ballot initiative limits its use to subject matters of statutes that the Legislature may enact.[128] Most states do not place any additional restrictions on the subject matter of a ballot initiative. A minority of initiative states, however, place further restrictions on initiatives of specified subject issues that reflect their respective policy choices. The most common subject matter restriction relates to budget issues. Nine states place particular limits on initiatives affecting taxes, revenues, or appropriations. Massachusetts prohibits an initiative measure “related to religion, religious practices or religious institutions.”[129] Illinois has the most severe subject matter restriction. An initiative in Illinois may only amend Article IV of the Illinois Constitution—about the “The Legislature”—and such an amendment “shall be limited to structural and procedural subjects contained in Article IV.”[130]

Several states do not prohibit ballot initiatives of specified subject matters but place special restrictions on these measures. For example, Maine specifies that “any measure which entails expenditure in an amount over available and unappropriated state funds shall remain inoperative until 45 days after the next convening of the Legislature in regular session unless the measure provides for raising new revenues adequate for its operation.”[131] Presumably this allows the Legislature time to enact appropriate legislation to raise revenues. Utah requires a 2/3 supermajority for any measure “initiated to allow, limit, or prohibit the taking of wildlife or the season for or method of taking wildlife.”[132] Utah, for example, subjects any ballot initiative affecting wildlife management (hunting) to a unique two-thirds majority requirement.[133] Citizens of the District of Columbia may not submit an initiative to decrease penalties for marijuana use.[134]

The constitutionality of initiative subject matter restrictions has been the subject of numerous legal challenges, particularly regarding First Amendment violations.[135] The central argument posits that these restrictions, by barring or limiting initiatives on specific subjects, constitute an impermissible content-based restriction on core political speech.[136] In response, the states argue that these restrictions merely limit the legislative process, not free speech.[137] While the issue has yet to reach the U.S. Supreme Court on the merits,[138] several federal appellate courts have weighed in, with the First Circuit, for instance, upholding Massachusetts’s subject matter restriction despite acknowledging its free speech implications.[139]

iii. Keeping it Simple: Single Subject-Rule

Although there are differences in the extent to which subject matter restrictions are enforced, most states mandate that a statewide initiative should only address a single subject matter. Massachusetts has a similar requirement but not as restrictive; an initiative measure may encompass only related or mutually dependent subjects.[140] This type of provision has been interpreted to permit an initiative to “include more than one subject.”[141] Massachusetts’s relatedness test is considered “less restrictive” than the single-subject rule.[142] The test is met if there is a common purpose to which each subject of an initiative petition is related.[143]

Arkansas, Idaho, Illinois, Maine, Michigan, Mississippi, North Dakota, and South Dakota do not have a single-subject requirement for statewide initiatives.[144] Each federal appellate court that has reviewed the issue has determined that a single subject requirement is not unconstitutional.[145] However, among the states that have adopted a single-subject requirement, there is a significant disparity in how they interpret and apply the requirement and in the methods available for judicial review of proposed initiatives for compliance with the requirement. Florida has adopted a strict interpretation of the single-subject rule, resulting in the Supreme Court of Florida invalidating numerous proposed initiatives.[146]

The two primary grounds used to justify the single-subject rule are preventing “logrolling” and voter confusion. Logrolling is the practice of including disparate provisions on unrelated topics—not favored by a majority—in a proposed law to cobble together a majority of support. Many states that have adopted a single-subject rule also require that the proposed initiative clearly state that subject in the initiative’s title to prevent voter confusion. The Colorado Legislature describes these reasons in the relevant Colorado Statute implementing the single-subject rule:

(I) To forbid the treatment of incongruous subjects in the same measure, especially the practice of putting together in one measure subjects having no necessary or proper connection, for the purpose of enlisting in support of the measure the advocates of each measure, and thus securing the enactment of measures that could not be carried upon their merits; (II) To prevent surreptitious measures and apprise the people of the subject of each measure by the title, that is, to prevent surprise and fraud from being practiced upon voters. [147]

iv. A Roadmap for Puerto Rico: Ballot Initiatives as a Tool for Change

Having established the historical and comparative foundations of direct democracy, it is now essential to evaluate how these mechanisms—particularly ballot initiatives—could be adapted to Puerto Rico’s constitutional framework. Ballot initiatives embody the most direct form of citizen lawmaking, enabling the electorate to bypass legislative inertia and place substantive constitutional or statutory proposals directly before the people. Their design, however, requires careful calibration to ensure both democratic accessibility and institutional stability. Thus, a review of subject-matter restrictions, signature requirements, and procedural safeguards becomes indispensable for constructing a model that balances citizen empowerment with constitutional coherence.

To integrate ballot initiatives into Puerto Rico’s constitutional order, several reforms should be pursued. First, initiatives should be subject to reasonable substantive restrictions, barring measures that would curtail affirmative rights under the Bill of Rights, undermine the judiciary, or destabilize the island’s fiscal framework through revenue and taxation provisions.[148] Second, a single-subject rule should be adopted to prevent logrolling and voter confusion, with pre-election judicial review authorized to ensure compliance with content and subject-matter limitations.[149] Third, the constitutional validity of an initiative should only be adjudicated after electoral approval, thereby respecting the primacy of the popular will.[150] Finally, the signature threshold should be set at ten percent of the total votes cast in the most recent gubernatorial election—striking a balance between accessibility and seriousness of purpose. Collectively, these provisions would transform ballot initiatives into a viable mechanism for participatory democracy in Puerto Rico, reducing the rigidity of constitutional change while empowering citizens to exercise meaningful control over their political destiny.

Ballot initiatives are crucial in a more democratic society because they empower citizens to participate directly in the legislative process, ensuring that the government remains responsive to the people’s will. Ballot initiatives, for example,  are currently saving abortion.[151] This form of direct democracy enhances accountability and transparency, as elected officials must heed the electorate’s preferences or risk being overruled. Constitutional ballot initiatives promote a more engaged and informed citizenry by allowing citizens to address issues that the legislature may neglect, fostering a political culture that values participation and collective decision-making. This process amplifies the public’s voice in governance and reinforces the principles of self-determination and democratic legitimacy. Puerto Rico needs to adopt the method of a constitutional amendment through the ballot initiative. This would make the constitutional change in the island less rigid, fostering a more democratic society.

C. Holding Leaders Accountable: The Case for Recall Elections in Puerto Rico

This section critically examines the role of recall elections as an essential mechanism of direct democracy within the context of Puerto Rico. It elucidates how recall elections empower citizens to hold elected officials accountable through a legally sanctioned and democratic process for their removal prior to the conclusion of their term. Additionally, this section delineates the historical evolution of recall elections in the United States, analyzes the diverse grounds and procedures for recall across various jurisdictions, and evaluates their effectiveness in fostering political accountability. By addressing the prospective benefits and challenges associated with the implementation of recall elections in Puerto Rico, this discussion underscores the potential for such reform to enhance democratic responsiveness and restore public trust in governmental institutions.

i. When Democracy Fails: Why Recall Elections Matter

A recall is a direct democracy tool available to states and has been around for over a century. It allows voters to remove an elected official from office before their term ends.[152] The recall procedure involves filing a petition, gathering signatures, campaigning for the cause, and winning the ballot.[153] At least 19 states and the District of Columbia allow for recalling some state officials,[154] while local recall elections are permitted in at least 41 states and the District of Columbia.[155]

The recall referendum process was established in the early 1900s, thanks to progressive groups’ lobbying to introduce more direct democratic provisions. This process was considered an effective tool to combat corruption among public officials.[156] In 1908, Oregon initiated a constitutional amendment to establish a recall referendum process for all public officials, including judges, approved by the voters, making Oregon the first state to adopt such a process.[157]

In the first seven years after the constitutional amendment, 34 public officials faced a recall referendum, and 25 were removed from their positions.[158] Oregon is among the forty-two states that allow the process of a public official recall referendum. However, the recall process is rarely used at the state level and has little success. While at the local level, it has recently been used as a tool.[159] For instance, since California adopted the mechanism in 1911, approximately 200 petitions to remove a state official through a recall referendum process have been circulated in California. Fifty-five petitions have been circulated to remove the Governor of California using the recall referendum mechanism. Although proponents of the recall referendum processes collected the required signatures for an election nine times, only three were between 1913 and 1914. That is, since 1914, six petitions have qualified for elections after collecting the signatures required by law.[160]

In the legal history of the United States, only five governors have ever faced an election initiated by a petition for a recall.[161] One governor came close to facing a recall referendum in 1998 when a petition to remove the Governor of Arizona, Evan Mecham, gathered enough signatures for the vote. However, the Arizona Supreme Court canceled the process because Mecham was removed and convicted by the Legislative Assembly before the election could occur.[162] In 2002, Gray Davis was re-elected as the Governor of California, securing 48% of the electorate’s vote. However, in 2003, a recall referendum election was held, which Davis had to face. To survive the recall referendum, Davis needed 50% of the electorate to oppose the recall. Unfortunately, Davis could only get 45% of the voters to oppose the 2003 recall referendum. This meant that although he had yet to obtain 52% of the state’s electorate vote in 2002 and still won the governorship, he lost the 2003 recall referendum with just 55% of the electorate’s vote against him. As a result, Arnold Schwarzenegger was elected as the new Governor of California, having secured 48% of the votes.[163] In 2021, Gov. Newsom of California was the most recent governor to face a recall process, launched unsuccessfully by a political group.[164] 

ii. Grounds for Recall: Defining the Threshold for Political Accountability

The permissible grounds for recall vary significantly among these states.[240] Twelve states permit the recall of elected officials for any reason or none at all.[241] Although the elective officer has a property right in his office, the officer holds their position subject to the conditions imposed by the political system that created the office. Such a condition may include the recall for any or no reason at all.[242] The people’s right to recall elected officials is significantly greater than a State’s power to remove an official.[243] The Michigan and New Jersey constitutions specify that the “sufficiency of any statement of reasons or grounds procedurally required shall be a political rather than a judicial question.”[244]

The right to a recall referendum can only be requested in Alaska if specific reasons are met.[252] This requirement in Alaska is intended to “free public officials from the harassment of recall elections grounded on frivolous charges or mere insinuations.”[253] When reviewing the legal sufficiency of the accusations in a recall petition, the Court treats the challenge as a motion to dismiss.[254] The Court does not determine the truth or falsehood of the allegations in a recall petition, leaving that concern to the voters. It treats the facts alleged in the petition as accurate and “determine[s] whether such facts constitute prima facie showing of misconduct in office or failure to perform prescribed duties.”[255]

Most states require the reasons established to initiate the recall referendum to be clearly expressed or particularized. This emphasis on clear communication is crucial to ensure transparency and accountability in the recall process. Generally, there must be adequate notice of the reasons for initiating a recall so the person occupying the seat can prepare their defense.[256] The statutes regulating the procedures of a recall referendum are interpreted liberally and in favor of the voters, not the elected individual occupying the seat.[257]

The Georgia recall referendum statutes state that the person subject to the process may request a “review of the sufficiency of the grounds of recall and the factor facts upon which the ground or grounds are based with the superior court.”[258] Discovery is allowed on the subject, and the chair of the petition bears the burden of proving that probable cause “exists to believe that such alleged factor facts are true.”[259] The standard for assessing the legal sufficiency of a recall application is whether the facts supporting the grounds for recall are stated with such “clarity and specificity” that the application can “properly notify” both the official sought to be recalled and those members of the public who are registered and qualified voters in the appropriate electoral district of the violations alleged to have been committed.[260]

Virginia has a process for removing elected state officials, which a citizen petition has initiated. Still, the fate of the elected official is not left to a recall election. Instead, Virginia has a recall trial.[261] Grounds for removal include conviction of a hate crime, conviction of certain drug offenses, and “[f]or neglect of duty, misuse of office, or incompetence in the performance of duties when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of office.”[262]

iii. Recall Petition Signatures

The number of signatures needed to validate a recall referendum petition varies across states. In most states, the petition must have signatures from 25% of the voters who participated in the last election for the position subject to the recall referendum.[263] However, Kansas mandates a higher threshold of petition signatures equivalent to 40% of the votes cast in the last election for the position under recall.[264] Conversely, California requires fewer votes but adds a geographic requirement, making the process more rigorous.[265]

iv. What Comes Next? Determining a Successor

In Arizona, California, Colorado, Michigan, Nevada, North Dakota, and Wisconsin, a single election determines whether the official is recalled and, if so, who the successor is. In Arizona,[266] Michigan,[267]  Nevada,[268] North Dakota,[269] and Wisconsin,[270] the recall ballot consists of (i) the grounds outlined in the petition demanding a recall, (ii) the officer’s justification for his or her conduct while in office, and (iii) a list of nominated candidates for the office that includes the name of the officer sought to be recalled.

In California[271] and Colorado,[272] the recall ballot consists of (i) the grounds outlined in the petition demanding recall, ii) the officer’s justification for his or her conduct while in office, (iii) a box marked “YES” to approve the recall and a box marked “NO” to reject the recall and (iv) a list of nominated candidates for the office if the recall is approved that shall not include the name of the officer sought to be recalled. The recall ballot only includes whether the official should be recalled in Alaska,[273] Georgia,[274] Idaho,[275] Illinois,[276] Kansas,[277] Louisiana,[278] Minnesota,[279] Montana,[280] Oregon,[281] Rhode Island,[282] and Washington.[283] If the official is recalled, a separate election is held later to elect a successor to fill the vacancy or a successor is appointed to fill the office until the next general election.

New Jersey uses a hybrid system. When the official to be recalled is the Governor or a member of the Legislature, the recall ballot includes only whether the official should be recalled.[284] If the official is recalled, the vacancy is filled like any other vacancy in that office.[285] When the official to be recalled is not the Governor or a member of the Legislature, the ballot includes a list of nominated candidates for the office. If the recall is approved, it shall not include the name of the officer sought to be recalled.[286]

v. Recommendations for Puerto Rico: Making Recall a Reality

Having examined the historical development, legal foundations, and comparative practices of recall elections in the United States, the analysis now turns to the normative implications for Puerto Rico. The question is no longer whether recall elections can serve as a legitimate mechanism of direct democracy—they demonstrably can—but rather how they should be designed within Puerto Rico’s unique constitutional and political framework. The following recommendations propose a balanced structure that both empowers the electorate to hold officials accountable and incorporates procedural safeguards to ensure democratic stability and fairness.

To embed recall elections into Puerto Rico’s constitutional system, several reforms should be adopted. First, Article II of the Bill of Rights should be amended to include the people’s right to initiate a recall referendum against any public official, including the Governor, the Resident Commissioner, and members of the Legislative Assembly, with district legislators subject only to recall within their constituencies. Second, the mechanism should extend to municipal officials—mayors and municipal legislators—as well as to designated cabinet members such as the Secretaries of Justice, Health, and Natural Resources. Third, a threshold requiring signatures equivalent to forty percent of the votes cast in the most recent gubernatorial election should be established, ensuring that only serious petitions proceed. Fourth, the referendum itself should present a straightforward “Yes” or “No” question on removal, coupled with the simultaneous election of a successor when applicable. Fifth, successful recalls of appointed officials should result in vacancies filled through ordinary constitutional procedures, such as gubernatorial nomination and legislative confirmation. Finally, the process should not be restricted by predetermined substantive grounds for recall, thereby preserving the electorate’s full discretion. Collectively, these measures would entrench recall elections as a robust tool of democratic accountability, ensuring that the Puerto Rican people retain meaningful and continuous control over their political leadership

Establishing a constitutional right to recall in Puerto Rico would significantly improve direct democracy. This empowerment would allow citizens to hold elected officials accountable throughout their terms rather than solely at election time. This mechanism would enable voters to remove representatives who fail to fulfill their responsibilities or act against the public interest, promoting more excellent political responsiveness and transparency. The recall process would establish a continuous check on power, prompting politicians to stay connected with their constituents’ needs and concerns. Ultimately, it would enhance democratic engagement by ensuring the people’s voice remains influential in governance.

D. Filling the Leadership Gap: The Case for a Lieutenant Governor in Puerto Rico

On July 24, 2019, Governor Roselló Nevares resigned from his post, effective August 2.[287] This led to the appointment of Pedro Pierluisi Urrutia as Secretary of State on July 30.[288] Pierluisi’s designation was a recess appointment, so he was sworn in, triggering unprecedented events in Puerto Rico’s history.[289] This caused a democratic and constitutional crisis, which ended on August 7, 2019, with the unanimous decision of the Supreme Court of Puerto Rico[290] in the case of the Senate of Puerto Rico v. Government of Puerto Rico.[291]

Initially, the role of lieutenant governor was a rarity, and gubernatorial succession often involved legislators or quasi-legislative officers.[292] This reflected the prevailing distrust of concentrated executive power. However, as the 19th century progressed, a systematic evolution towards more democratic succession structures began.[293] The position of lieutenant governor became more common as states modified their constitutions, mirroring a broader trend toward democratizing state institutions. This shift towards establishing lieutenant governors in various states represents a significant move towards democratization within gubernatorial succession, aiming to align more closely with democratic principles.[294]

i. The Role of a Second-in-Command: A U.S. Perspective

The role of lieutenant governor, commonly known as the first successor in the line of gubernatorial succession, was not always as prevalent as it is today.[295] During the era of the American Revolution, the position was relatively rare.[296] Lieutenant governors originated in colonial times, and the general distrust towards governors and other high-ranking officials at the time likely influenced perceptions of the lieutenant governor.[297] Before the U.S. Constitution was ratified, only five states had lieutenant governors: Connecticut, Massachusetts, New York, Rhode Island, and South Carolina.[298] The role in Connecticut and Rhode Island was called “Deputy Governor,” a holdover from their colonial charters. In South Carolina, the lieutenant governor was elected by the legislature, similar to the governor, rather than by the people.[299]  Massachusetts and New York had positions identical to the modern lieutenant governorship, with the same title and function in succession.[300] Over the six decades following the ratification of the Constitution, approximately half of the new states established lieutenant governorships. After 1850, the trend towards adopting the office increased, with 14 out of the 21 states admitted to the Union during this period establishing lieutenant governors.[301]

Significant modifications occurred in states that had previously established their state constitutions before the Civil War. During this period, five states—Kentucky in 1799, Louisiana in 1844, Virginia and Ohio both in 1851, and Iowa in 1856—amended their constitutions to introduce the position of lieutenant governor.[302] In all these states except Iowa, introducing the lieutenant governor role replaced the state senate president as the governor’s primary successor. In Iowa, however, the secretary of state was replaced as the first successor in the gubernatorial line of succession.

Lieutenant governors were established in almost all U.S. territories as they created their constitutions, such as American Samoa, Puerto Rico, and the Northern Mariana Islands, or restructured their governance through changes to their organic acts, as in Guam and the U.S. Virgin Islands. The only exception was Puerto Rico.[303] During the 1977 constitutional convention in the Northern Mariana Islands, an exciting event occurred when a delegate suggested the appointment of two lieutenant governors, one for each of the islands of Rota and Tinian. The rationale was to provide these smaller islands with greater autonomy and more significant influence within the commonwealth, potentially equal to Saipan—the more oversized island.[304] The proposal stated that the island residents would directly elect these lieutenant governors to manage local public services and enforce commonwealth laws. It also included a provision for the governor to specify in writing which lieutenant governor would ascend to the governor’s office should it become vacant. However, this idea was ultimately not adopted after additional self-governance and protective measures were assured for Rota and Tinian, satisfying their representatives’ concerns.[305]

ii. Puerto Rico’s Missing Link: The Need for a Lieutenant Governor

During the Constitutional Convention, five proposals addressed the issue of the lieutenant governor, which was a political position that would have supported Congress in approving the Constitution since it had been an existing role in the states of the American nation since its inception. According to Trías Monge, the governor’s succession was among the most debated topics during the Convention.[306] The socialist delegation supported the creation of the position of Lieutenant Governor,[307] and delegates García Méndez and Ferré also endorsed the concept.[308]

In 1951, the Executive Branch Commission, with Hon. Samuel R. Quiñones as the chair and Hon. Luis Negrón López as the secretary, proposed the creation of the position of lieutenant governor.[309] On December 5 of that year, Hon. Samuel R. Quiñones requested the approval of the idea and the establishment of the lieutenant governor position. He suggested that the lieutenant governor would replace the governor in case of a vacancy and that the succession be established by law. The PPD delegation seriously discussed the recommendation, and Trías Monge described it as suggested by the Executive Branch Commission of the Legislative Assembly.

The lieutenant governor would be elected at the same time and for the same term as the Governor and would be the President of the Senate, where he would have no vote, except in the case of a tie. In the event of an absolute vacancy, the lieutenant governor would replace the Governor. Still, in the case of a temporary vacancy, the Secretary of Government appointed by him would occupy the position of Governor.[310]

On January 25th, 1952, Mr. Gutiérrez Franqui requested the Convention to ask for the return of the proposal on the “Legislative Power” created by the drafting, style, and enrollment commission. He wanted them to reconsider the creation of the lieutenant governor position. The Convention approved his motion, and Mr. Gutiérrez Franqui proposed that §7 of the Executive Power related to the lieutenant governor should be eliminated. Instead, he suggested that the Secretary of State occupy the governor’s position.

When an elected governor is unable to take office, or when a vacancy occurs due to death, resignation, removal, total or permanent incapacity, or any other absolute absence, the position shall pass to the Secretary of State, who will hold it until a successor is elected and takes office. If the next general election is scheduled to be held more than a year after the date of the vacancy, a special election will be held to elect a governor within 120 days following the vacancy. The law will provide for filling such a vacancy, both in the position of Governor and Secretary, and will determine which official will occupy the position of Governor.[311]

The amendment was made because both legislative chambers confirmed the Secretary of State, and that process would replace the popular election process.[312] The election of the Secretary of State by the Legislature is an indirect election by the people carried out by the legislators whom the people elected. Delegate Gutiérrez Franqui explained this as follows:

The purpose of the amendment, Mr. President and fellow delegates, is to establish the following system or method for the accidental succession of the Governor, that is, in cases where before the term for which a governor has been elected expires, the position becomes vacant due to resignation, death, total and permanent incapacity, or any other reason that results in an absolute absence. According to the amendment we have just presented, upon such a vacancy, the Secretary of State would occupy the position of Governor, who would hold that office until after the next general elections a governor is elected and takes office.

It is stipulated that the Secretary of State, when appointed by the Governor, must receive not merely confirmation by the Senate, which is required for other government secretaries. Still, in this specific case, confirmation by the Senate and the House of Representatives, acting separately and by an absolute majority, will be required. Furthermore, it is stipulated that, in the case of a temporary absence, the Secretary of State will also occupy the position of Governor, or in the absence of both, of a temporary nature, the person designated by the Legislative Assembly.  . . . This is the proposal we present to replace the formula or method of accidental succession in the position of governor, which was approved on second reading.

We understand that this formula avoids the creation of a lieutenant governor position, with very limited time and interest functions, that could create the constitutional and political organization within the government of the Commonwealth of Puerto Rico, a position with a big title, big salary, and almost nothing to do, which we have considered undesirable.[313]

Delegate Iriarte opposed the amendment, stating that he preferred a lieutenant governor elected by the people over a Secretary of State appointed by the governor.

Mr. IRIARTE: According to the amendment, the Governor will be replaced by an official not elected by the people. That’s how I understand it. Right? The Secretary of State will not be elected by the people but appointed by the Governor like the other government secretaries.

Mr. GUTIERREZ FRANQUI: With the exception that both legislative chambers will confirm him.

Mr. IRIARTE: He would not be elected directly by the people. The idea was that the people would elect the lieutenant governor.[314]

After much deliberation, the Constituent Assembly adopted a motion to remove the lieutenant governor position from the Constitution. The approved proposal was outlined in Act No. 7 of July 24, 1952, which has since been amended. This law specifies the order of succession and replacement for the Governor of the Commonwealth of Puerto Rico.[315] According to Article 1, in the event of a vacancy in the office of governor caused by death, resignation, removal, total and permanent incapacity, or other absolute absence, the Secretary of State will assume the duties of the office.[316] The Secretary of State will serve as the governor for the remainder of the term until a new governor is elected and sworn in.[317] However, if both the governor and Secretary of State positions are vacant, the successor will be elected in a specific order:[318]

1. Secretary of Justice.
2. Secretary of the Treasury.
3. Secretary of Education.
4. Secretary of Labor and Human Resources.
5. Secretary of Transportation and Public Works.
6. Secretary of Economic Development and Commerce.
7. Secretary of Health.
8. Secretary of Agriculture.

To prevent future controversies—like the one that occurred in the Summer of 2019 and provide executive officials with more power—creating a lieutenant governor position, as is done in many states, could be a viable solution. The Summer 2019 controversy highlighted the need for a more robust succession plan, as it was evident that the Secretary of State needed confirmation by both chambers. If a lieutenant governor, elected by the people, is appointed to assume the responsibilities of the executive and the Secretary of State, it would ensure a more democratic process. Currently, the Constitution doesn’t allow for a complete exercise of democracy since there’s a possibility that an official not elected by the people could become the leader, as is the case with the Secretary of State.

The pressing need to rectify the significant leadership deficit in Puerto Rico has once again come into sharp focus, particularly in light of the recent circumstances surrounding Verónica Ferraiuoli.[319] At the time this article is being written, nearly four months into the existing administration, Puerto Rico is operating without a confirmed Secretary of State, who serves as the official second in command according to the existing constitutional framework. This vacancy, along with the resultant instability and uncertainty, highlights the democratic and governance deficiencies that arise from delegating such a crucial role to an unelected appointee. In the absence of a Lieutenant Governor or a popularly elected Secretary of State, the continuity of executive leadership is susceptible to abrupt interruptions, clandestine negotiations, and potentially nonrepresentative outcomes.

The Ferraiuoli incident, reminiscent of the constitutional crisis experienced in 2019, exemplifies the inadequacies of permitting succession to reside within the purview of gubernatorial appointees—regardless of their competence or qualifications—thus undermining democratic principles. If Puerto Rico cannot proceed to establish a constitutionally elected Lieutenant Governor, it is imperative that reform efforts at the very least mandate that the Secretary of State, as the immediate successor to the governorship, be elected directly by the populace. Such a measure would not only strengthen democratic legitimacy and foster public trust but also protect the stability of the Commonwealth’s executive branch from the governance vacuums currently evident.

iii. Recommendations for Puerto Rico

The preceding discussion has demonstrated both the historical evolution of the lieutenant governorship in the United States and the democratic deficiencies exposed in Puerto Rico by the absence of a popularly elected second-in-command. Having established the comparative and contextual foundations, attention must now shift to the normative proposals for institutional reform. The following recommendations outline a framework designed to strengthen executive stability, enhance democratic legitimacy, and prevent the recurrence of succession crises such as those witnessed in 2019.

To address Puerto Rico’s persistent succession challenges, constitutional reform should establish a lieutenant governor elected by direct popular vote on the same day as the governor in each general election. Importantly, the governor and lieutenant governor should not be required to belong to the same political party, thereby preserving the electorate’s freedom of choice. Eligibility requirements should mirror those of the governorship: the candidate must be at least thirty-five years old, a citizen of the United States, and a bona fide citizen and resident of Puerto Rico for the preceding five years.[320] The lieutenant governor should serve as the first constitutional successor to the governor, whether by formally creating the office or by reforming the confirmation process so that the Secretary of State is also directly elected by the people.[321] Both the governor and lieutenant governor should be subject to removal through impeachment or recall, ensuring that executive authority remains accountable to the electorate.[322] Finally, the lieutenant governor should serve a four-year term[323] concurrent with, but independently elected from, the governor.[324] Collectively, these recommendations would secure a more transparent and democratic succession process, reinforce institutional stability, and guarantee that Puerto Rico’s executive leadership derives directly from the people’s mandate.

IV. Conclusion

Exploring direct democracy and collective rights within Puerto Rico’s constitutional framework reveals the urgent need for reform. By adopting these participatory tools, Puerto Rico can encourage a more engaged and empowered citizenry and ensure that governance is more responsive to the people’s will. These reforms not only address immediate democratic shortcomings but also lay the groundwork for a more resilient and inclusive political system capable of adapting to future challenges and opportunities.

Additionally, the intersection of direct democracy with collective rights highlights the potential for a fairer and more equitable society. Empowering citizens to influence legislation and hold elected officials directly accountable strengthens the democratic foundation of Puerto Rico. It ensures that the voices of all communities, especially marginalized groups, are heard and considered in the political process. As Puerto Rico navigates its complex political landscape, these proposed constitutional amendments offer a path toward greater self-governance and social justice, aligning with the fundamental principles of democracy and human rights in its constitutional identity.

* Carlos Chévere Lugo is a Puerto Rican lawyer admitted to the Puerto Rico Bar and the United States Federal Court for the District of Puerto Rico. Chevere-Lugo has an LLM in American Legal System (2017) and International Criminal Law (2018) from St. Mary’s University School of Law, a JD (2016) from Pontifical Catholic University School of Law, and a BA in Political Science (2012) from the University of Puerto Rico.

[1] Jean Jaques Rousseau, The Social Contract loc #13 (Translated by G. D. H. Cole) (Digireads.com Publishing 2009) (ebook).  

[2] See Alec Stone Sweet, Constitutions and Judicial Review, in Comparative Politics 219 (2008) (“a constitution is a body of meta-norms, those higher order legal rules and principles that specify how all legal norms are to be produced, applied, enforced and interpreted.”(parenthetical omitted)).

[3] See e.g., Zachary Elkins, Tom Ginsburg, & James Melton,, The Endurance Of National Constitutions (2009); Mark Tushnet, The Constitution Of The United States Of America: A Contextual Analysis (2008).

[4] See Cynthia Soohoo & Jordan Goldberg, The Full Realization of Our Rights: The Right to Health in State Constitutions, 60 Case W. Rsrv. L. Rev. 997, 1003 (2010)  (“Popular legal discourse often separates rights into two categories: civil and political rights and socio-economic rights. Civil and political rights are generally described as including the rights to liberty, free speech, free exercise of religion, freedom from torture and fair trial. Socio-economic rights generally refer to rights to food, shelter, education, and healthcare. Internationally, this dichotomy was reinforced when political pressure and Cold War posturing resulted in the division of the rights contained in the Universal Declaration of Human Rights into two separate human rights treaties: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social, and Cultural Rights (ICESCR). The United States ratified the ICCPR in 1992. It has signed, but not ratified the ICESCR.”(footnotes omitted)). 

[5] See Aharon Barak, The Role of the Supreme Court in a Democracy, 53 Hastings L.J. 1205 (2002) (In the American system, the Constitution establishes a government with three branches: legislative, executive, and judicial. It defines their respective powers and limits through a system of checks and balances designed to protect individual liberties and prevent any single branch from becoming too powerful); Michael Ariens, Constitutional Law And History 77 (2nd ed. 2016) (“The Constitution creates a system of shared power, both horizontally[,] among the legislative, executive and judicial branches and vertically between the federal and state governments. The horizontal division of powers is referred to as separation of powers.”).

[6] Pub. L. No. 114-187, 130 Stat. 549 (2016) (codified in scattered sections of 15, 29, and 48 U.S.C.).

[7] Carlos G. García-Quijano & Hilda Lloréns, Using the Anthropological Concept of “Core Cultural Values” to Understand the Puerto Rican 2019 Summer Protests, American Anthropologist, (October 29, 2019), https://www.americananthropologist.org/online-content/understanding-the-puerto-rican-2019-summer-protests.

[8] Luis J. Valentín Ortiz & Carla Minet, The 889 Pages of the Telegram Chat between Rosselló Nevares and His Closest Aides, Centro De Periodismo Investigativo, (Jul 13, 2019),   https://periodismoinvestigativo.com/2019/07/the-889-pages-of-the-telegram-chat-between-rossello-nevares-and-his-closest-aides/.

[9] Id. (“Group members also commented on the recovery after hurricane María, admitting delays in the process, blaming in part the Federal Emergency Management Agency (FEMA). They say, however, that many expectations created by the Rosselló Nevares administration were not being met.”).

[10] Nicole Chavez, Private leaked texts, massive protests and a governor’s downfall: A timeline of Puerto Rico’s political unrest, CNN, (Jul 28, 2019), https://edition.cnn.com/2019/07/27/us/puerto-rico-governor-scandal-timeline/index.html.

[11] Christine Santillana & Lisa Evans, Toxic Coal Ash in Puerto Rico: The Hazardous Legacy of the AES-PR Coal Plant, EarthJustice, (Jan 23, 2022), https://earthjustice.org/feature/coal-ash-states/puerto-rico#:~:text=Since%20it%20started%20burning%20coal,energy%20%E2%80%94%20in%20a%20mountainous%20pile.

[12] Pearl Marvel, Who will save Puerto Rico’s beaches from rising seas, storms, and developers? The people, Yale Climate Connections, (Apr 25, 2023), https://yaleclimateconnections.org/2023/04/who-will-save-puerto-ricos-beaches-from-rising-seas-storms-and-developers-the-people/.

[13] Lola Rosario, Protecting Puerto Rico’s Coastlines & Indigenous Heritage, NACLA, (Jul 11,  2023), https://nacla.org/protecting-puerto-ricos-coastlines-indigenous-heritage; Carlos García-Quijano & Hilda Lloréns, Coastal gentrification in Puerto Rico is displacing people and damaging mangroves and wetlands, The Conversation, (Jun 16, 2022), https://theconversation.com/coastal-gentrification-in-puerto-rico-is-displacing-people-and-damaging-mangroves-and-wetlands-184214; Patricia Mazzei, A Turtle, a Pool and the Fight to Save Puerto Rico’s Beaches, The New York Times, (Nov 20, 2021),  https://www.nytimes.com/2021/11/06/us/puerto-rico-beaches-threats.html; Israel Meléndez Ayala, Why new construction projects are making Puerto Rico’s climate disasters worse, The Guardian, (Nov 19, 2022), https://www.theguardian.com/world/2022/nov/19/puerto-rico-climate-crisis-new-construction; Teresa Paez, The fight against the privatization of beaches, The Liberation, (May 31, 2022),  https://www.liberationnews.org/the-fight-against-privatization-of-beaches-in-puerto-rico/; Luis Joel Meléndez, Wilma Maldonado & Vanessa Colón Almenas, Act 22 Investors Attracted to Costal Development Amid Climat Crisis, Centro De Periodismo Investigativo, (Nov 30, 2023),   https://periodismoinvestigativo.com/2023/11/act-22-investors-attracted-to-coastal-development-amid-climate-crisis/.

[14] Carlos A. Suárez Carrasquillo & Fernando Tormos-Aponte, Puerto Rico’s vulnerability to hurricanes is magnified by weak government and bureaucratic roadblocks, Prevention Web, (Sep 21, 2022), https://www.preventionweb.net/news/puerto-ricos-vulnerability-hurricanes-magnified-weak-government-and-bureaucratic-roadblocks.

[15] Agustín Carbó, New government in Puerto Rico must focus on transforming the energy sector, Environmental Defense Fund, (Dec 2, 2020), https://blogs.edf.org/energyexchange/2020/12/02/new-government-in-puerto-rico-must-focus-on-transforming-the-energy-sector/.

[16] Nicole Acevedo, Puerto Rico’s former education secretary, others arrested in federal fraud probe, NBC News (Jul 10, 2019), https://www.nbcnews.com/news/latino/puerto-rico-s-former-education-secretary-others-arrested-federal-fraud-n1028251; Patricia Mazzei, Former Puerto Rico Education Secretary Is Sentenced to Prison, The New York Times, (Dec 20, 2021), https://www.nytimes.com/2021/12/17/us/puerto-rico-education-corruption-keleher.html; Former Governor of Puerto Rico Arrested in Bribery Scheme, Office Of Public Affairs U.S. Department Of Justice, (Aug 4, 2022),  https://www.justice.gov/opa/pr/former-governor-puerto-rico-arrested-bribery-scheme; Former Governor of Puerto Rico arrested on corruption charges, Aljazeera, (Aug 4, 2022), https://www.aljazeera.com/news/2022/8/4/former-governor-of-puerto-rico-arrested-on-corruption-charges; Former Puerto Rico Gov. Wanda Vázquez is charged with bribery, The Associated Press, (Aug, 4, 2022), https://www.npr.org/2022/08/04/1115685539/former-puerto-rico-governor-wanda-vazquez-bribery-charge; Jury finds former Puerto Rican mayor guilty of corruption, AP News, (Mar 23, 2023), https://apnews.com/article/puerto-rico-mayor-guilty-corruption-6e968afc50d290fa8efb123ab64a8d2d; Darryl Coote, Ex-Puerto Rican city mayor sentenced to more than five years for bribery, UPI, (Feb 13, 2024), https://www.upi.com/Top_News/US/2024/02/13/Puerto-Rican-mayor-sentenced/5881707803338/; Coral Murphy Marcos, Puerto Rico sues former officials accused of corruption to recover more than 30M in public funds, AP News, (Jun 25, 2024), https://apnews.com/article/puerto-rico-corruption-sues-government-officials-35fdf3975ea364caf67dd0ad1480b2fb.

[17] Jeniffer Wiscovitch Padilla, Patients in the Dark About the Performance of their Health Insurance Plans, Centro De Periodismo Investigativo, (Aug 11, 2022),   https://periodismoinvestigativo.com/2022/08/patients-in-the-dark-about-the-performance-of-their-health-insurance-plans/.

[18]Mariela Patron, Puerto Rico’s Exodus of Doctors Adds Health Care Strain to Dire Financial Crisis, NBC News, (Aug 8, 2017),  https://www.nbcnews.com/news/latino/puerto-rico-s-exodus-doctors-adds-health-care-strain-dire-n783776; Coral Murphy Marcos, Puerto Rico’s Unnatural Disaster, The Nation (April 10, 2024), https://www.thenation.com/article/world/puerto-rico-healthcare-crisis/; David Begnaud, Health care system “collapse: Doctors, experts sound alarm over Puerto Rico’s medical system, CBS News, (Sep 21, 2022) https://www.cbsnews.com/news/puerto-rico-health-care-system-collapse/.  

[19] Several states have built into their constitutions an automatic, periodic vote of the people on whether a state constitutional convention should be called. See e,g., John Dinan, The Political Dynamics of Mandatory State Constitutional Convention Referendums: Lessons from the 2000s Regarding Obstacles and Pathways to Their Passage, 71 Mont. L. Rev. 395 (2010); Gerald Benjamin, The Mandatory Constitutional Convention Question Referendum: The New York Experience in National Context, 65 Alb. L. Rev. 1017 (2002); Robert J. Martineau, The Mandatory Referendum on Calling a State Constitutional Convention: Enforcing the People’s Right to Reform Their Government, 31 Ohio St. L.J. 421 (1970).

[20] See Jessica A. Levinson, Taking the Initiative: How to Save Direct Democracy, 18 Lewis & Clark L. Rev. 1019, 1020–21 (2014) (“The processes of direct democracy allow citizens to stand on the same footing as their elected officials by enacting laws via the initiative, repealing laws through the referendum, and ousting elected officials through the recall. Designed as a way to give voice to average citizens and guard against the pernicious influence of money groups over elected officials, direct democracy is an integral part of governance in 26 states and hundreds of localities throughout the country. Direct democracy can aptly be described as the fourth branch of government.”).

[21] See Escuela de Adminitración Pública, La Nueva Constitución de Puerto Rico 522 (2008).

[22] P.R. Const. art. VII, § 3 (“No amendment to this Constitution shall alter the republican form of government established by it or abolish its Bill of Rights. Any amendment or revision of this Constitution shall be consistent with the resolution enacted by the Congress of the United States approving this Constitution, with the applicable provisions of the Constitution of the United States, with the Puerto Rican Federal Relations Act, and with Public Law 600, of the Eighty-first Congress, adopted in the nature of a compact.”).

[23] Id. art. VII, §1 (“The Legislative Assembly may propose amendments to this Constitution by a concurrent resolution approved by not less than two-thirds of the total number of members of which each house is composed. All proposed amendments shall be submitted to the qualified electors in a special referendum, but if the concurrent resolution is approved by not less than three-fourths of the total number of members of which each house is composed, the Legislative Assembly may provide that the referendum shall be held at the same time as the next general election. Each proposed amendment shall be voted on separately and not more than three proposed amendments may be submitted at the same referendum. Every proposed amendment shall specify the terms under which it shall take effect, and it shall become a part of this Constitution if it is ratified by a majority of the electors voting thereon. Once approved, a proposed amendment must be published at least three months prior to the date of the referendum.”).

[24]See Michal G.Colantuono, The Revision of American State Constitutions: Legislative Power, Popular Sovereignty, and Constitutional Change, 75 Cal. L. Rev. 1473, 1478 (1987) (“The term ‘amendment’ typically refers to changes to one or a few provisions, usually related to a single subject. The term ‘revision,’ on the other hand, refers to more pervasive changes, ranging from the drafting of an entirely new document to changes that alter multiple provisions and touch upon multiple subjects. The distinction, of course, is a matter of degree rather than of kind; the result in either case is the adoption of new constitutional language.”).

[25] See Jessica Bulman-Pozen & Miriam Seifter, The Right to Amend State Constitutions, 133 Yale L.J. F. 191, 196 (2023) (noting that forty-nine states — every state except Delaware —require the legislature to refer any proposed constitutional amendment to the ballot for consideration by the people. This mandatory referendum reflects a policy decision that it is important to involve the people in this area of decision-making. The people are a check on the legislature’s power.); Delaware is the only state that provides for a legislative amendment to the state constitution without a vote of the people. See, generally, Opinion of the Justices, 264 A.2d 343 (Del. 1970).

[26] See Berrios Martinez v. Rosselló Gonzalez, 137 P.R. Dec. 195 (1994).

[27] P.R. Const. art. VI, §1 (“The Legislative Assembly shall have the power to create, abolish, consolidate and reorganize municipalities; to change their territorial limits; to determine their organization and functions; and to authorize them to develop programs for the general welfare and to create any agencies necessary for that purpose.  No law abolishing or consolidating municipalities shall take effect until ratified in a referendum by a majority of the qualified electors voting in said referendum in each of the municipalities to be abolished or consolidated. The referendum shall be conducted in the manner determined by law, which shall include the applicable procedures of the election laws in effect when the referendum law is approved.”).

[28] See Joint Resolution of Congress of July 3, 1952, c. 567, 66 Stat. 327. Congress mandated that the Constitutional Convention amend the Constitution by 1) Removing § 20 of the Bill of Rights, 2) adding a fourth sentence to Art. 11 §5, and 3) adding a second sentence to Art. VII §3.

[29] See V José Trías Monge, Constitutional History Of Puerto Rico 146 (1994)(In 72 years, the Constitution has been amended only four times, one related to democracy. The only democratic change achieved after 1952 was the right to vote at eighteen years of age through a constitutional amendment approved by the people in 1970).

[30] P.R. Const. art. II, §20 (“The Commonwealth also recognizes the existence of the following human rights: The right of every person to receive free elementary and secondary education. The right of every person to obtain work.  The right of every person to a standard of living adequate for the health and well-being of himself and of his family, and especially to food, clothing, housing and medical care and necessary social services.  The right of every person to social protection in the event of unemployment, sickness, old age or disability. The right of motherhood and childhood to special care and assistance.  The rights set forth in this section are closely connected with the progressive development of the economy of the Commonwealth and require, for their full effectiveness, sufficient resources and an agricultural and industrial development not yet attained by the Puerto Rican community.  In the light of their duty to achieve the full liberty of the citizen, the people and the government of Puerto Rico shall do everything in their power to promote the greatest possible expansion of the system of production, to assure the fairest distribution of economic output, and to obtain the maximum understanding between individual initiative and collective cooperation. The executive and judicial branches shall bear in mind this duty and shall construe the laws that tend to fulfill it in the most favorable manner possible.”).

[31] Id.

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id. art. V, §4.

[40] Id. art. VI §2.

[41] Id. art. III, §8.

[42] Two amendments to the Constitution were proposed by the administration of Governor Pedro Roselló Gonzálezs (an amendment to eliminate the absolute right to bail and an amendment to increase the number of Supreme Court Justices) Dr. Fernando Bayrón Toro, Historia de las Elecciones y Partidos Políticos en Puerto Rico 406 (2008).

[43] Two amendments to the Constitution were introduced by the administration of Luis Fortuño (an amendment to eliminate the absolute right to bail and an amendment to reduce the number of Legislators). (https://archive.ph/20130209120752/http://www.vocero.com/luz-verde-a-referendum-sobre-fianza/).

[44] See Córdova Ituguerri y Otros v. Cámara de Representantes, 171 P.R. Dec. 789, 802 (2007).

[45] P.R. Const. art. VII, § 2 (“The Legislative Assembly, by a concurrent resolution approved by two-thirds of the total number of members of which each house is composed, may submit to the qualified electors at a referendum, held at the same time as a general election, the question of whether a constitutional convention shall be called to revise this Constitution. If a majority of the electors voting on this question vote in favor of the revision, it shall be made by a Constitutional Convention elected in the manner provided by law. Every revision of this Constitution shall be submitted to the qualified electors at a special referendum for ratification or rejection by a majority of the votes cast at the referendum.”)

[46] See Kevin Frazier, Crowsourced State Constitutional Revisions can Revive Our Democracy, 74 Rutgers U. L. Rev. 1463 (2022).

[47] For a summary of relatively recent efforts at constitutional revision in Oregon, New Jersey, Michigan, Maryland, Illinois, Virginia, Montana, Louisiana, Texas, Georgia, California, Florida, New York, and Alabama, see Robert F. Williams, Should the Oregon Constitution Be Revised, And If So, How Should It Be Accomplished?, 87 Or. L. Rev. 867 (2008).

[48] U.S. Const. art. V (“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”).

[49] Kevin Frazier, State Constitutional Conventions Explained, State Court Report, (May 28, 2024), https://statecourtreport.org/our-work/analysis-opinion/state-constitutional-conventions-explained.

[50] See e.g., John Dinan, Explaining the Prevalence of State Constitutional Conventions in the Nineteenth and Twentieth Century, 34 J. Pol’y Hist. 297 (2022); William B. Fisch, Constitutional Referendum In The United States of America, 54 Am. J. Comp. L 485, 492(2006) (“Historically, the preferred vehicle for major revisions of existing state constitutions and creation of new ones has been the popularly elected convention, which has often been called by a state legislature without explicit authority in the existing governing document. The power to call a convention is understood to be inherent in the people and their representatives.”); G. Alan Tarr, For The People: Direct Democracy In The State Constitutional Tradition, in Democray: How Direct? 95 (2002), (“Over the course of the [nineteenth] century, the American states held 144 constitutional conventions and adopted ninety-four constitutions.”); Gerald Benjamin & Tom Gais, Constitutional Conventionphobia, 1 Hofstra L. & Pol’y Symposium 53, 62-3 (1996) (as of 1996, “[t]here have been 234 constitutional conventions in American states, territories and the District of Columbia. The states have functioned under 146 separate constitutions.”).

[51] On the major unsuccessful state constitutional revision attempts, see e,g,. John P. Wheeler, Jr. & Melissa Kinsex, Magnificent Failure: The Maryland Constitutional Convention of 1967-1968 (1970); Thomas G. Pullen, Jr., Why the Proposed Maryland Constitution Was Not Approved, 10 WM. & Mary L. REv. 378 (1968); Robert B. McKay, Constitutional Revision in New York State: Disaster in 1967, 19 Syracuse L. Rev. 207(1967); Talbot D’Alemberie, THE FLORIDA STATE CONSTITUTIONS: A REFEREN.C. E GUIDE 15-16 (1991); Robert F. Williams, Review Essay: A Generation of Change in Florida State Constitutional Law, 5 St. Thomas L. Rev. 133, 139-40 (1992).

[52] See Hawaii State AFL-CIO v. Yoshina, 84 Haw. 374 (1997). The Hawaii 1996 constitutional convention question was initially considered to be approved, but because many voters left their ballots blank when answering the question, the Hawaii Supreme Court ruled that it had not passed, and therefore, no convention was held.

[53] See Frazier, Crowdsourced, supra note 46, at 1469 (“In recent times, constitution-making has ceased to be a regular activity. Only two states – Georgia and Rhode Island – have adopted a new constitution in the last forty years.”). 

[54] See Frank Prosnitz, On the Ballot: Constitutional Convention, WUN, (Feb 26, 2024,.  https://whatsupnewp.com/2024/02/on-the-ballot-constitutional-convention/.

[55] See Julie O’Donoghue, Louisiana House votes to call convention to overhaul state constitution, Lousiana Illuminator, (May 7, 2024), https://lailluminator.com/2024/05/07/louisiana-house-votes-to-call-convention-to-overhaul-state-constitution/.

[56] Lisa Phu, In Alaska, voters reject once-in-a-decade constitutional convention question, Alaska Beacon, (Nov 9, 2022), https://alaskabeacon.com/2022/11/09/in-alaska-voters-will-decide-on-once-in-a-decade-constitutional-convention-question/; Luke Nozicka, Missouri votes no on Constitutional Convention, yes on the National Guard Department, Kansas City Star, (Nov 9, 2022), https://www.kansascity.com/news/politics-government/election/article268113972.html; Amanda Gokee, New Hampshire said no to a constitutional convention, preserved the register of probate, New Hampshire Bulletin, (Nov 14, 2022),  https://newhampshirebulletin.com/briefs/new-hampshire-said-no-to-a-constitutional-convention-preserved-the-register-of-probate/.

[57] See John Dinan, State Constitutional Developments in 2012, in The Book Of The States 3-4 (2012)(available at https://bookofthestates.org/download/1846/?tmstv=1720130872).

[58] Id. at. 4.

[59] Md. Const. art. XIV, §2. Voters who cast a ballot at that election but did not vote on the question of a constitutional convention essentially voted against the question.

[60] See Dan Friedman, Magnificent Failure Revisited: Modern Maryland Constitutional Law From 1967 to 1998, 58 Md. L. Rev. 528 (1999); Talbot D’Alemberte, The Florida State Constitution: A Reference Guide 15 (1991); Steven J. Uhlfelder and Robert A. McNeely, The 1978 Constitution Revision Commission: Florida’s Blueprint for Change, 18 Nova L. Rev. 1489 (1994); G. Theodore Mitau, Constitutional Change By Amendment: Recommendations of the Minnesota Constitutional Commission in Ten Year’s Perspective, 44 Minn. L. Rev. 461 (1959).

[61] The Constitutions of five states explicitly authorize the legislature to propose revisions to the constitution. Once the legislature proposes a revision, it is subject to approval by the people. See Cal. Const. art. XVIII, §§1, 4; Fla. Const. art. XI, §§1, 5; Haw. Const. art. XVII, §§1,3; N.C. Const. art. XIII, §4; Or. Const. art. XVII, §2. Although not specifically authorized by their respective state constitutions, the Supreme Court of Georgia and the Supreme Court of Kentucky have approved the submittal of constitutional revisions to the people after they were approved by the state legislature. Wheeler v. Board of Trustees of Fargo Consol. School District, 37 S.E.2d 322 (Ga. 1946); Gatewood v. Matthews, 403 S.W.2d 716 (Ky. 1966); see, also, Smith v: Cenarussa, 475 P.2d 11 (Idaho 1970) (preparation of proposed revised Constitution by commission established by the legislature and submission of proposal to electors at general election is permissible method of revising constitution, despite the fact that it is not specifically authorized in constitution). Compare Mo. Const, art. XII, §1 (“This constitution may be revised and amended only as therein provided.”); N.C.  Const. Art. XIII, §2 (“The people of this State reserve the power to amend this Constitution and to adopt a new or revised Constitution. This power may be exercised by either of the methods set out hereinafter in this Article, but in no other way.”).

[62] Dinan, The Political Dynamics, supra note 19 at 395 (“But when we examine state constitutions—and there is significant variation among the states—we find that in addition to permitting legislative-initiated amendments and conventions, as all 50 states do, one state establishes periodic revision commissions that can submit amendments directly to the people,  18 states permit amendments to be initiated by the people,  and 14 states provide for mandatory referendums that permit the people to vote at regular intervals on whether to call a convention.”)

[63] See Cal. Const. art. XVIII, §2 (“If the majority vote yes on that question, within 6 months the Legislature shall provide for the convention.”); Ga. Const. art. X, §1, 9I4 (“The General Assembly is hereby authorized to provide the procedure by which a convention is to be called and under which such convention shall operate and for other matters relative to such constitutional convention.”); R.I. Const. art. XIV, §2 (“Prior to a vote by the qualified electors on the holding of a convention, the general assembly, or the governor if the general assembly fails to act, shall provide for a bi-partisan preparatory commission to assemble information on constitutional questions for the electors.”).

[64] See Del. Const. art. XVI, §2 (For example, Delaware provides: “Such Convention shall be composed of forty-one delegates, one of whom shall be chosen from each Representative District by the qualified electors thereof, and two of whom shall be chosen from New Castle County, two from Kent County and two from Sussex County by the qualified electors thereof respectively. The delegates so chosen shall convene at the Capital of the State on the first Tuesday in September next after their election. Every delegate shall receive for his services such compensation as shall be provided by law. A majority of the Convention shall constitute a quorum for the transaction of business. The Convention shall have power to appoint such officers, employees and assistants as it may deem necessary, and fix their compensation, and provide for the printing of its documents, journals, debates and proceedings. The Convention shall determine the rules of its proceedings, and be the judge of the elections, returns and qualification of its members. Whenever there shall be a vacancy in the office of delegate from any district or county by reason of failure to elect, ineligibility, death, resignation or otherwise, a writ of election to fill such vacancy shall be issued by the Governor, and such vacancy shall be filled by the qualified electors of such district or county”); See, e.g., Haw. Const. art. XVII, §2; Mich. Const. art. XII, §3; N.Y. Const. art. XIX, §2.

[65] See, e.g., Ala. Const. art. XVIII, §286; Ariz. Const. Art. XXI, §2; La. Const. art. XIII, §2; Okla. Const. art. XXIV, §2; WV Const. art. XIV, §2; WI Const. art. XII, §2.

[66] See, e.g., ID Const. art. XX, §3; NV Const. art. XVI, §2; NM Const. art. XIX, §2; UT Const. art. XXIII, §2; W. Va. Const. art. XXIII, §2; Wyo. Const. art. XX, §3.

[67] See, e.g., Mont. Const. art. XIV, §4 (“The number of delegates to the convention shall be the same as that of the larger body of the legislature. The qualifications of delegates shall be the same as the highest qualifications required for election to the legislature. The legislature shall determine whether the delegates may be nominated on a partisan or a non-partisan basis. They shall be elected at the same places and in the same districts as are the members of the legislative body determining the number of delegates.)”; Colo. Const. art. XIX, §1; Ky. Const. Mode of Revision, §259; Minn. Const. art. IX, §2; Mo. Const. art. XII, §3(a).

[68] See Ohio Const. art. XVI, §2.

[69] Mo. Const. art. XII, §3 (a)).

[70] See Russell L. Caplan, Constitutional Brinksmanship: Amending The Constitution by National Convention (1988) (addressing the concern of a “runaway” convention called pursuant to Article V of the U.S. Constitution).

[71] “Limitations may take two forms: First, the convention may be limited to consider only certain subjects; and second, the convention may be limited from considering certain subjects . . . [L]imiting a state constitutional convention can serve to take certain politically charged topics off the table and to calm fears about the convention’s otherwise unlimited mandate to consider all topics of state constitutionalism.” Henry S. Noyes, The Law of Direct Democracy 414 (2014)(citation omitted).

[72] Mont. Const. art. XIV, §§1-2.

[73] Alaska Const. art. XIII, §4.

[74] Ala. Const. art. XVIII, §286 (“nothing herein contained shall be construed as restricting the jurisdiction and power of the convention, when duly assembled in pursuance of this section, to establish such ordinances and to do and perform such things as to the convention may seem necessary or proper for the purpose of altering, revising, or amending the existing Constitution”); See Opinion of the Justices, 81 So.2d 678 (Ala. 1955) (Based on the language of Alabama’s Constitution, the Alabama Supreme Court found a provision providing limited constitutional convention unconstitutional.).

[75] Ill. Const. art. XIV, §2 (“The Convention shall prepare such revision of or amendments to the Constitution as it deems necessary. Any proposed revision or amendments approved by a majority of the delegates elected shall be submitted to the electors in such manner as the Convention determines at an election designated or called by the Convention occurring not less than two nor more than six months after the Convention’s adjournment.”)

[76] Mich. Const. art. XII, §3.

[77] Kan. Const. art. XIV, §2 (“The legislature . . . may submit the question ‘Shall there be a convention limited to revision of article(s)______of the constitution of the state of Kansas?’, to the electors . . . and the concurrent resolution providing for such question shall specify in such blank appropriate words and figures to identify the article or articles to be considered by the convention. The convention shall have power to amend or revise all or that part of the constitution indicated by the question voted upon to call the convention, subject to ratification by the electors.”)

[78] N.C.  Const. art. XII, §1 (“The General Assembly shall, in the act submitting the convention proposition, propose limitations upon the authority of the Convention; and if a majority of the votes cast upon the proposition are in favor of a Convention, those limitations shall become binding upon the Convention.”).

[79] Tenn. Const. art. XI, §3 (“The Legislature shall have the right by law to submit to the people, at any general election, the question of calling a convention to alter, reform, or abolish this Constitution, or to alter, reform or abolish any specified part or parts of it . . . No change in, or amendment to, this Constitution proposed by such convention shall become effective, unless within the limitations of the call of the convention.”).

[80] See Eloy García, Elisabetta Palici Di Suni & Martin Rogoff, Direct Democracy In Comparative Law 1 (2018).

[81] Id at. 11.

[82] Id.

[83] Id at. 12.

[84] Id.

[85] Id.

[86] Id.

[87] Id.

[88] See Alexander H. Trechsel & Hanspeter Kriesi, Switzerland: The Referendum and Initiative as a Centerpiece of the Political System, in The Referendum Experience In Europe 185-90 (1996).

[89] Id.

[90] See Joseph F. Zimmerman, The Recall: Tribunal Of The People 6-7 2014).

[91] See Charles S. Kesler, The Founders’ Views of Direct Democracy and Representation at 3-6, in Democracy: How Direct? (2002); William B. Fisch, Constitutional Referendum in the United States, 54 Am. J. Comp. L. 485, 491-93 (2006); Walter Fairleigh Dodd, The Revision And Amendment Of State Constitutions 24-25 (1910); M. Dane Waters, Initiative And Referendum Almanac 3-9 (2003).

[92] See Rich Brownstein, Initiative And Referendum Voting: Governing Through Direct Democracy In The United States 1 (2004).

[93] Id.

[94] Id.

[95] See Daniel A. Smith & Caroline Tolbert, Educated By Initiative: The Effects Of Direct Democracy On Citizens And Political Organizations In The American States 5 (2004) (“Progressive politicians, most prominently Teddy Roosevelt and Woodrow Wilson, maintained that the initiative could serve as an institutional check on unresponsive state legislators. If legislatures failed to recognize or respond to the public’s wishes, citizens could resort to direct action by passing initiatives that either amended the state constitution or enacted a statute.”).

[96] See Ervin Chemerinsky, Challenging Direct Democracy, Mich. St. L. Rev. 293, 301 (2007).

[97] See e,g,. Rules 19.2 and 19.3 of the Senate Projects by Petition are available via the Senate and House of Representatives of Puerto Rico Regulations.

[98] See Levinson, supra note 20, at 1021 (“The most popular form of direct democracy is the ballot-initiative process, whereby citizens can circulate petitions and qualify proposed new laws for placement on electoral ballots.”).

[99] Trane J. Robinson, Speaking of Direct Democracy, Judicial Review of State Ballot Initiative Laws Under the First Amendment, 89 U. Cin. L. Rev. 176 (2020).

[100]  See Levinson, supra note 20, at. 1023 (“The ballot initiative provides proponents of new laws with a vitally important tool – the ability to directly enact a law without having to go through the legislative process.”).  

[101] Harel Arnon, The Theory Of Direct Legislation 18 (2008).

[102] Indirect Initiative, Ballotpedia, https://ballotpedia.org/Indirect_initiative (last visit Aug 24, 2025).

[103] This article will solely concentrate on the direct ballot initiative.

[104] Dane Waters, supra note 91, at 11.

[105] Id. at 13.

[106] Ariz. Const. art. IV, Pt. 1, §1(1).

[107] Ark. Const.  art. V, § 1.

[108] Cal. Const.  art. II, §8.

[109] Colo. Const. art. V, § 1.

[110] Mo. Const. art. III, §§ 49.

[111] Mont. Const. art. XIV, §9(1).

[112] Neb. Const.  art. III, §3.

[113] N.D. Const. art. III, §1.

[114] Okl Const. art. V, §1.

[115] Or. Const.  art. IV, §1(2)(a).

[116] S.D. Const.  art. XXIII, §1.

[117] Fla. Const.  art. XI, §3.

[118] Ill. Const. art. XIV, §3 (“Amendments to Article IV of this Constitution may be proposed by a petition signed by a number of electors equal in number to at least eight percent of the total votes cast for candidates for Governor in the preceding gubernatorial election.”). In Illinois, initiatives can only be used to amend Article IV of the constitution, which concerns the state legislature. Id.

[119] Mich. Const. art. XII, §2.

[120] Nev. Const. art. XIX, §2).

[121] Ohio Const. art. II, §1.

[122] Idaho Const. art. III, §1; ID Stat. §34-1811.

[123] Utah Const. art. VI, §1(2).

[124] Wash. Const. art. II,  §§1, 41.

[125] Colo. Const. art. V, §1.

[126] Ariz. Const. art. IV, Pt. 1, §1

[127] Okla. Const. art. V, §2.

[128] The Initiative and Referendum Alamanac 18 2003).

[129] Mass. Const. art. XLVIII, Part II, § 2.

[130] Ill. Const. art.  XIV, §3; see also Coalition for Political Honesty v. State Board of Elections, 359 N.E.2d 138 (Ill. 1976) (stating that the Illinois Constitution limits “initiatives to amendments whose subjects would be both structural and procedural, such as a proposal for the conversion from a bicameral to a unicameral legislature or for the conversion from multiple- to single-member legislative districts”).

[131] Me. Const. art. IV, Part Third, § 19.

[132] Utah Const. art. VI, §1(2).

[133] Utah Const. art. VI, §1.

[134] Marijuana Policy Project v. United States, 304 F.3d, 82, 83 (D.C. Cir. 2002).

[135] See Trane J. Robinson, Speaking of Direct Democracy, Judicial Review of State Ballot Initiative Laws under the First Amendment, 89 U. Cin. L. Rev. 176 (2020).

[136] See Anna Skiba-Crafts, Conditions on Taking the Initiative: The First Amendment Application of Subject Matter Restrictions on Ballot Initiatives, 107 Mich. L. Rev. 1305 (2009). For other articles arguing in favor of ballots initiative under 1st Amendment arguments, see J. Michael Connolly, Loading the Dice in Direct Democracy: The Based Constitutionality of Content-And Point-Based Regulation of Ballot Initiatives, 64 N.Y.U. Ann. Surv. Am. L. 129 (2008).

[137] See Michael Carlin, Buckley v. American Constitutional Law Foundation, Inc., Emblem of the Struggle Between First Amendment Right and State State’s Regulatory Interests in Election Issues, 78 N.C. L. Rev. 477 (2000); Alma Sobo, Taking Initiative: The Burden that Petition Circulators Carry After Buckley v. American Constitutional Law Foundation, Inc., 62 Wayne L. Rev. 53 (2016).

[138] Little v. Reclaim Idaho, 140 S. Ct. 2616 (2020) (Chief Justice Roberts concurring in the stay). It was decided in through the shadow docket.

[139] See Wirzburger v. Galvin, 412 F.3d. 271 (1st Cir. 2005), cert. denied, 456 U.S. 1150 (2006). In Wirzburger, the First Circuit held that subject matter restrictions restrict speech and are subject to intermediate scrutiny. A majority of courts have addressed the issue. However, they have concluded that subject matter restrictions do not raise a free speech issue. See e,g,.Initiative and Referendum Institute v. Walker, 450 F.3d. 1082 (10^th Cir. 2006) (en banc), cert. denied, 549 U.S. 1245 (2007); See also Robert S. Sandoval, Restricted Subject Matters: Misconceptions of Speech and Ballot Initiatives, 2015 U. Chi. Legal F. 669 (2015).

[140] Mass. Const. art.  LXXIV,  §1.

[141] Massachusetts Teachers Association v. Secretary of the Commonwealth, 424 N.E.2d 469, 476 (Mass. 1981).

[142] Id.

[143] Id.

[144] For States that Ballot Initiative must be limit to a single subject, see Noyes, supra note 71, at 121.

[145] See Pest Committee v. Miller, 626 F. 3d. 1097 (9th Cir. 2010), cert. denied, 132 S.Ct. 94 (2011).

[146] In Re Advisory Opinion to the Attorney General—Restrict Laws Related to Discrimination, 632 So. 2d. 1018 (Fla. 1994). See also Fla. Const. art. XI, $3. (Florida’s single-subject rule contains one significant exception. The single-subject rule does not apply to initiatives “limiting the power of government to raise revenue.”). See, also, In Nevadans for the Protection of Property Rights, Inc. v. Heller, 141 P.3d 1235 (Nev. 2006) (The Nevada Supreme Court considered a pre-election challenge to a proposed initiative based on the single-subject rule. Nevada has no constitutional single-subject rule, but the legislature enacted a statutory single-subject requirement for initiative petitions. The Nevada Supreme Court held that its statutory single-subject requirement is constitutional, applied it, and found that the proposed initiative violated that requirement. Instead of ordering the proposed initiative wholly stricken from the ballot, the court severed portions of the initiative and approved the remainder for placement on the ballot. Id. at 1245-48. See Yute Air Alaska v. McAlpine, 698 P.2d. 1173 (Alaska 1985) (Alaska has adopted a more liberal standard when applying the single-subject requirement).

[147] Colo. Rev. Stat. § 1-40-106.5. See also Robert D. Cooter & Michael Gilbert, A Theory of Direct Democracy and the Single Subject Rule, 110 Columbia L. Rev. 687, 706-09 (2010) (“Three purposes motivate the single subject rule: preventing logrolling, preventing riding, and improving political transparency); Daniel H. Lowenstein, California Initiatives and the Single-Subject Rule, 30 UCLA L. Rev. 936 (1983) (describing and analyzing the rationales of preventing logrolling and preventing voter confusion).

[148] See e.g., John Dinan, The Unconstitutional Constitutional Amendment Doctrine in the American States: State Court Review of State Constitutional Amendments, 72 Rutgers U. L. Rev. 983 (2020).

[149] See Ark. Code Ann. § 15-45-240. see also McAlpine v. University of Alaska, 762 P.2d 81 (Alaska 1988)); Kerby v. Luhrs, 36 P.2d 549 (Ariz. 1934); Cal. Const. art. II, §8(d); Senate of State of Cal. v. Jones, 988 P.2d 1089, 1096 (Cal. 1999); Fine v. Firestone, 448 So.2d 984 (Fla. 1984); Chicago Bar Ass’n v. State Bd. Of Elections, 561 N.E.2d 50 (III. 1990); Opinion of the Justices, 191 A.2d 357 (Me. 1963); Yankee Elec. Co. v. Secretary of Commonwealth, 525 N.E.2d 369 (Mass. 1988); Buchanan v. Kirkpatrick, 615 S.W.2d 6, 12 n. 7 (Mo. 1981); Okla. Stat. tit. 34 §8; In re Initiative Petition No. 382, 142 P.3d 400 (Okla.2006); Or. Admin. R. 165-014-0028 (Oregon Educ. Ass’n v. Phillips, 727 P.2d 602 (Or. 1986)); White v. Welling, 57 P.2d 703 (Utah 1936)).

[150] See Brooks v. Wright, 971 P.2d 1025, 1027 (Alaska 1999); Tilson v. Mofford, 737 P.2d 1367, 1369 (Ariz. 1987) (en banc); In re Title, Ballot Title, & Submission Clause, 943 P.2d 897, 900 (Colo. 1997) (en banc); Noh v. Cenarrusa, 53 P.3d 1217 (Idaho 2002) (refusing to consider the constitutionality of an initiative pre-election based on lack of a “justiciable” controversy despite the language of Idaho Code § 34-1809 that states “[a]ny qualified elector of the state of Idaho may, at any time after the attorney general has issued a certificate of review, bring an action in the Supreme Court to determine the constitutionality of any initiative.”); Carney v. Attorney General, 890 N.E.2d 121, 134 (Mass. 2008); Hughes v. Hosemann, 68 So.3d 1260 (Miss. 2011) (en banc); Union Electric Co. v. Kirkpatrick, 678 S.W. 2d 402 (Mo. 1984); Anderson v. Byrne, 242 N.W. 687 (N.D. 1932); State ex rel. O’Connell v. Kramer, 436 P.2d 786, 787 (Wash.1968).

[151] See Hannah Ledford, Direct Democracy is saving abortion rights. Conservatives want it gone, The Hill, (Aug 31, 2023), https://thehill.com/opinion/civil-rights/4178935-direct-democracy-is-saving-abortion-rights-conservatives-want-it-gone/; See Ering Geiger Smith, Where Abortion Rights Could be on the Ballot in 2024, State Court Report, (Feb 8, 2024), https://statecourtreport.org/our-work/analysis-opinion/where-abortion-rights-could-be-ballot-2024.  

[152] Robert F. Williams & Lawrence Friedman, The Law Of American State Constitutions 315 (2023).

[153] David A. Carrillo, et al., California Constitutional Law: Direct Democracy, 92 S. Cal. L. Rev. 557, 568 (2019).

[154] Recall of State Officials, Nat’l Conf. St. Legislatures (Sep 15, 2021),  https://www.ncsl.org/elections-and-campaigns/recall-of-state-officials (“Historically, recall attempts at the state level have been largely unsuccessful. The recall is used much more often, and with more success, at the local level.”).

[155] There is no consensus on this figure. Compare with the 39 states listed in Laws Governing Recall, Ballotpedia, https://ballotpedia.org/Laws_governing_recall (last visit Aug 25, 2025).

[156] Zimmerman, supra note 90, at 6-15.  

[157] Or. Const. art. II, §18 (1908).

[158] Zimmerman, supra note 90, at 14.

[159] Id. at 97-129. See also Rachel Weinstein, You’re Fired!, The Voters Version of “the Apprentice”: An Analysis of Recall Elections in California, 15 S. Cal. Interdisciplinary L.J. 131 (2005).

[160] California Secretary of State Shirley N. Weber, Ph.D., Recall History in California (1913 to Present) http://www.sos.ca.gov/elections/recalls/california-recall-history.htm.

[161] Scott Walker, governor of Wisconsin, survived an election initiated by a recall referendum process in 2012. Lynn Frazier, governor of North Dakota, was removed by a special election created by a recall referendum petition. Gray Davis, governor of California, was removed from office in 2003. Top of FormBottom of Form

[162] Green v. Osborne, 157. Ariz. 365 (1988).

[163] Vikram David Amar, Adventures in Direct Democracy: The Top Ten Constitutional Lessons From the California Recall Experience, 92 Cal. L. Rev. 927, 945-46 (2004); Kira L. Klatchko, The Progressivist Origins of the 2003 California Gubernatorial Recall, 35 McGeorge L. Rev. 701 (2004); Floyd Feeney, The 2003 California Gubernatorial Recall, 41 Creighton L. Rev. 37 (2007).

[164]Gavin Newsom recall, Governor of California (2019-2021), Ballotpedia, https://ballotpedia.org/Gavin_Newsom_recall,_Governor_of_California_(2019-2021) (last visit Aug 24, 2025).  

[165] Ala. Code §§11-44-130 to -134.

[166] Alaska Const. art.  XI, §8.

[167] Ariz. Const. art. VIII, pt. 1, §§1-6.

[168] Ark. Const. art. XI, §8.

[169] Cal. Const. art. II, §§13-19; Cal. Elec. Code §5 11000-11386.

[170] Colo. Const. art. XXI, §§1-4; Colo. Rev. Stat. §5 1-12-101 to -122, 23-17-120.5, 31-4-501 to -505.

[171] See Recall of Municipal Employees, Connecticut General Assemblyhttps://www.cga.ct.gov/2012/rpt/2012-R-0454.htm, (last visit Sept. 3, 2025).

[172] Fla.  Stat. §100.361.

[173] Ga. Const. art. II, §2 Part IV, Ga. Code Ann. §§21-4-1 to -21.

[174] See Honolulu Revised City Charter, Art. XII §101-104.

[175] Ill. Const. art. III, §7.

[176] Idaho Const. art. VI, §6, Idaho Code §§ 34-1701 to 1715.

[177] Kan. Const. art. IV, §3, Kan. Stat. Ann. §§25-4301 to 4331.

[178] La. Const. art. X, §26, La. Stat. Ann. §§18:1300.1 to 1300.17

[179] Me. Rev. Stat. 30-A §2505.

[180] See Charter of the City of Annapolis, Art. II, § 9; 2004 Mass. Acts. 1026.

[181]Laws governing recall in Massachusetts, Ballotpedia, https://ballotpedia.org/Laws_governing_recall_in_Massachusetts (“Recall of local elected officials in Massachusetts is available in some jurisdictions is available in some jurisdictions.”)(last visit Aug. 24, 2025).

[182] Mich. Const. art. II, §8; Mich. Comp. Laws §§168.951—977.

[183] Minn. Const. art. VIII; §6, Minn.  Stat.§§ 211C.01-.09, 351.14-23.

[184] Miss. Code Ann. §§ 25-5-1 to -37.

[185] Mo. Rev. Stat.  §§77.650, 78.260.

[186] Mont. Code Ann. §§2-16-601 to -635.

[187] Neb. Rev. Stat. §§31-786 to -973, 32-1301 to – 1309.

[188] Nev. Const. art. II, §9; Nev. Rev. Stat. §§ 294A.006, -250 to – .280, 306.005 to -130, 539.160 to – 187.

[189] N.H. Rev. Stat. Ann. §49(d):3(e).

[190] N.J. Const. art. I, §2(b); N.J. Rev. Stat. §§19:27A-1 to -8.

[191] N.M. Const. art. X, §9; Id. art. XII, §14; N.M. Stat. Ann. § 53-14-16, 22-7-1 to – 16.

[192] See Lewisville Code of Ordinances, §§30-1 to 30-10.

[193] N.D. Const. art. III, §§ 1, 10; N.D. Cent. Code §§16.1-01-09.1, 44-08-21.

[194] Ohio Rev. Code Ann. §705.92.

[195] See Tulsa City Charter, Art. VII (“Removal and Recall of Elective Officers”).

[196] Or. Const. art.  II, §18, Or. Rev. Stat. §§ 249.002, 865 to – 877.

[197] R.I. Const. art. IV, §1, art. XIII, §1.

[198] S.D. Codified Laws §§19-13-29 to -35.

[199] Tenn. Code Ann. §§2-5-151, 6-31-301 to -307, 6-36-102, 6-53-108.

[200] Tex. Elec. Code Ann. §§43.130, 253.094.  

[201] Vt. Stat. Ann. tit. 24, §§103-104, 107-3.5, 133-103, 153-401).

[202] Va. Code Ann. §§24.2-684.1, -233 (recall by trial).

[203] Wash. Const. art. I, §§33-34; Wash. Rev. Code §§29A.56.110 to -270.

[204] W. Va. Code §§8-12-4(3).

[205] Wis. Const. art. XIII, §12; Wis. Stat. §9.10.

[206] Wyo. Stat. Ann. §15-4-110.

[207] Ark. Const. art. XI, §8.

[208] Ariz. Const. art. VIII, pt. 1, §1.

[209] Cal. Const. art. II, §14(a).

[210] Colo. Const. art. XXI, §1.

[211] Ga. Code Ann. § 21-4-4. 

[212] Idaho Const. art. VI, §6.

[213] Ill. Const. art. III, §7. See Henyard v. Municipal Officers of Village of Dolton, 2022 IL App. (1st) 1-22-0898, 2022 WL 5239070. Municipal voters have no express constitutional or statutory authority to recall any public official midterm, except the Governor.

[214] Kan. Const. art. IV, §3.

[215] La. Const. art. X, §26.

[216] Mich. Const. art. II, §8.

[217] Minn. Const. art. VIII, §6.

[218] Mont. Code Ann. §§2-16-603(1).

[219] Nev. Const. art. II, $9.

[220] N.J. Const. art. I, §2(b).

[221] N.D. Const. art. III § 10(1).

[222] Or. Const. art. , §18 (1).

[223] R.I. Const. art. IV, §1.

[224] Wash. Const. art. I, §33.

[225] Wis. Const. art. XIII, §12.

[226] Ariz. Rev. Stat. Ann. §19-222(B).

[227] Mich. Comp. Laws §168.959.

[228] NJ Const. art. I, §2(b).

[229] Or. Rev. Stat. §249.002.  

[230] Wis. Const. art. XIII, §12.

[231] Ark. Const. art. XI, §8.

[232] Colo. Const. art. XXI, §1.

[233] Ga. Code Ann. § 21-4-4.

[234] Kan. Const. art. IV, §3.

[235] La. Const. art. X, §26.

[236] Mont. Code Ann. §§2-16-603(1).

[237] Nev. Const. art. II, $9.

[238] N.D. Const. art. III § 10(1).

[239] Wash. Const. art. I, §33.

[240] See e.g., Abbey v. Green, 235 P.150 (Ariz. 1925). The Supreme Court of Arizona opinion explains the fundamental steps needed to get a recall petition approved for the ballot. It also outlines the valid reasons for a recall in Arizona. Additionally, it settles a disagreement over whether the recall petition accurately stated allegations constituting permissible grounds for recall.

[241] Arizona, California, Colorado, Idaho, Illinois, Louisiana, Michigan, Nevada, New Jersey, North Dakota, Oregon, and Wisconsin.

[242] See Gordon v. Leatherman, 450 F.2d 562 (5^tthCir. 1971) (rejecting due process challenge to home rule charter that provided that elected official is subject to recall without reason or cause being stated in the petition or otherwise).

[243] See Id. at 567 (“[T]here is a fundamental difference between the expulsion or removal of a public official by the state and that same activity by the voters. Any governmental body is required to act fairly, but that is not true as to a voter. Insofar as the United States Constitution is concerned, an elector may vote for a good reason, a bad reason, or for no reason whatsoever. That principle applies to recall elections as it does to all other elections.”).

[244] MI Const. art. II, §8; NJ Const. art. I, §2.

[245] Ark. Const. art. XI, §6; Ark. Code Ann. §§15.45.510 to-710, 15.60.00. 29.26.250 to -350.

[246] Ga. Const. art. II, §2.4; Ga. Code Ann. §§21-41-1 et seq.

[247] Kan. Const. art. IV, §3; Kan. Stat. Ann. §25-4301 a -4331.

[248] Minn. Const. art. VIII, §6; Minn. Stat §§211C.01 et seq.

[249] Mont. Code Ann. §§2-16.

[250] R.I. Const. art. VI, §1.

[251] Wash. Const. art.  I, §§33-34; Wash. Rev. Code §§29A.56-110 et seq.

[252] Von Stauffenberg v. Committee for Honest and Ethical School Bd., 903 P. 2d. 1055, 1059 (Alaska 1995).

[253] Id. at 1059 n. 11.

[254] Id.

[255] Id. at. 1059-60.

[256] Matter of Lee, 859 P.2d 1244 (Wash. 1993).

[257] In Re Recall Petition of Olsen, 116 P.3d 378 (Wash. 1995).

[258] Ga. Code Ann. §21-4-6(a).

[259] Id. §21-4-6(f).

[260] Phillips v. Hawthorne, 494 S.E. 2d 656 (Ga. 1998).

[261] Va. Code Ann. §24.2-233.

[262] Id.

[263] See, e.g., Ark. Code Ann. §15.45.610.

[264] Kan. Stat. Ann. §25-4306.

[265] Cal. Const. art. II, §14(b) (“A petition to recall a statewide officer must be signed by the electors equal in number to 12 percent of the last vote for the office, with signatures from each of the 5 counties equal in 1 number percent of the last vote of the office in the county. Signatures to recall Senators, members of the Assembly, members of the Board of Equalization, and judges of the court of appeal and trial courts must equal in number 20 percent of the last vote for office.”).

[266] Ariz. Const. art. VIII, SS 1-5.

[267] Mich. Comp. Laws §§ 168.970a to – 971c.

[268] Nev. Const. art. II, §9.

[269] N.D. Const. art.  III, §10.

[270] Wis. Const. art. XIII, §12.

[271] Cal Const. art. II, §15, Cal. Elec. Code §§ 11320-11327.

[272] Colo. Const. art. XXI, §3.

[273] Ark. Code Ann. §§29.20.180, 29.26.350.

[274] Ga. Code Ann. §§21-4-13.

[275] Idaho Code §§34-1712, 59-904.

[276] Ill. Const. art. III, §7.

[277] Kan. Stat. Ann. §§25-312, -4316.

[278] La. Const. art. X, §§26-27.

[279] Minn. Stat. §§211C.07 to -08.

[280] Mont. Code Ann. §§2-16-505, -635.

[281] Or. Const. art. II, §18.

[282] R.I. Const. art. IV, §1.

[283] Wash. Rev. Code §29A.56.260.

[284] N.J. Rev. Stat. §19:27A-15.

[285] Id.

[286] Id.

[287] Patricia Mazzei and Frances Robles, Ricardo Roselló, Puerto Rico’s Governor, Resigns After Protest, New York Times, (Jul 24, 2019) https://www.nytimes.com/2019/07/24/us/rossello-puerto-rico-governor-resigns.html.

[288] Giovanna Garafalo, Pedro Pierluisi Nominated as Secretary of State, The Weekly Journal, (Jul 31, 2019)https://www.theweeklyjournal.com/online_features/pedro-pierluisi-nominated-as-secretary-of-state/article_027eb738-b38c-11e9-8a72-d7e62f47b6b6.html.

[289] Patricia Mazzei, Who is Pedro Pierluisi, Who Has Been Sworn In As Puerto Rico’s Next Governor?, The New York Times, (Aug 1, 2019) https://www.nytimes.com/2019/08/01/us/puerto-rico-governor-pedro-pierluisi.html.

[290] Rafael Bernal, Puerto Rico’s top court invalidates governor’s appointment, The Hill, (Aug 7, 2019) https://thehill.com/latino/456567-puerto-ricos-top-court-invalidates-governors-appointment/; Alexia Fernández Campbell, Puerto Rico just kicked out another governor, VOX, (Aug 7, 2019) https://www.vox.com/policy-and-politics/2019/8/7/20758998/puerto-rico-governor-supreme-court-pierluisi.

[291] Senado de P.R. v. Gobierno de P.R., 203 P.R. Dec. 62, 103 P.R. Offic. Trans. 5 (2019)(“It falls upon us to determine the applicable law so as to decide who is the Governor of Puerto Rico after the previous incumbent resigned. In executing this task, we are aware of the importance this decision bears for the stability of our government and for social peace. Unanimously and after a pondered analysis of the applicable law, we conclude that the clause inserted into Section 1 of Law No. 7 of July 24, 1952, by Law No. 7 of 2005, allowing a Secretary of State who has not been confirmed by both legislative bodies to officially hold the office of Governor, is unconstitutional. Hon. Pedro R. Pierluisi Urrutia, who was named Secretary of State in a recess appointment, took the oath of office as Governor of Puerto Rico on Friday, August 2, 2019, under the presumption of validity that applies to all statutes in force. Even so, in light of the decision reached by this Court today, this oath of office is unconstitutional.)”

[292] See T. Quinn Yeargain, Democratizing Gubernatorial Succession, 73 Rutgers U. L. Rev. 1145, 1148 (2021).

[293] Id. at 1154.

[294] Id. at 1150.

[295] Id. at 1163.

[296] Id. at 1164.

[297]  Id.

[298] Id.

[299] Id.

[300] Id.

[301] Id. at 1165.

[302] Id.

[303] Id. at 1166.  

[304] Id.

[305] Id.

[306] José Trías Monge, Propositions and Resolutions of the Puerto Rican Constitutional Convention (1951-1952), Academia de Jurisprudencia y Legislación (1992)(available at https://www.academiajurisprudenciapr.org/proposiciones-y-resoluciones-de-la-convencion-constituyente/).  

[307] Id.

[308] Id.

[309] III José Trías Monge, Historia Constitucional De Puerto Rico 131 (1982).

[310] Id. (translation by author).

[311] Id.

[312] Senado de P.R. v. Gobierno de P.R., 203 P.R. Dec. 62, 75 (2019).

[313] IV Diario de Sesiones de La Convención Constituyente 2885-6 (1952) (translation by author).

[314] Id. at 2889-90 (translation by author).

[315] Act No. 7 of July 24, 1952 (It contains amendments incorporated by the following laws: Act No. 19 of January 10, 1998, and Act No. 7-2005).

[316] P.R. Laws ann. tit. 3 § 8.

[317] Id.

[318] Id.

[319] See e.g., Leysa Caro González, Cámara de Representantes confirma a Verónica Ferraiuoli como secretaria de Estado, El Nuevo Día (Apr 7, 2025), https://www.elnuevodia.com/noticias/legislatura/notas/camara-de-representantes-confirma-a-veronica-ferraiuoli-como-secretaria-de-estado/; Sara R. Marrero Cabán, Verónica Ferraiuoli recibe reintegro de $25,000 tras enmendar sus polémicas planillas, Primera Hora (Apr 23, 2025), https://www.primerahora.com/noticias/gobierno-politica/notas/veronica-ferraiuoli-recibe-reintegro-de-25000-tras-enmendar-sus-polemicas-planillas/; Yaritza Rivera Clemente, Verónica Ferraiuoli sin los votos para ser confirmada en el Senado como secretaria de Estado, El Nuevo Día (Apr 24, 2025), https://www.elnuevodia.com/noticias/legislatura/notas/veronica-ferraiuoli-sin-los-votos-para-ser-confirmada-en-el-senado-como-secretaria-de-estado/; Hillary Román, Sin los votos Verónica Ferraiuoli para ser confirmada en el Senado, Primera Hora (Apr 24, 2025), https://www.primerahora.com/noticias/gobierno-politica/notas/sin-los-votos-veronica-ferraiuoli-para-ser-confirmada-en-el-senado/; Leysa Caro González, Ética Gubernamental reconoce que “podría verse feo” que Verónica Ferraiuoli y Francisco Domenech ocupen tres de los principales cargos del gobierno, El Nuevo Día (Apr 23, 2025), https://www.elnuevodia.com/noticias/legislatura/notas/etica-gubernamental-reconoce-que-podria-verse-feo-que-veronica-ferraiuoli-y-francisco-domenech-ocupen-tres-de-los-principales-cargos-del-gobierno/; Ayeza Díaz Rolón & Glorimar Velázquez, La Fortaleza crea un DOGE boricua con Ferraiuoli al mando, El Vocero (May 5, 2025), https://www.elvocero.com/gobierno/la-fortaleza-crea-un-doge-boricua-con-ferraiuoli-al-mando/article_53c2875b-d7f4-4443-b404-74f6ab168859.amp.html; Crean puesto similar al de Elon Musk para Verónica Ferraiuoli, Metro P.R. (May 5, 2025), https://www.metro.pr/noticias/2025/05/05/crean-puesto-similar-al-de-elon-musk-para-veronica-ferraiuoli/.

[320] Const. P.R. art. IV, § 3.

[321] See e.g., Christian Arvelo Forteza, El Puesto de Vicegobernador de Puerto Rico: Una Reflexión Sobre la Idoneidad de su Creación Tras los Eventos del #VeranoDel19, 84 Rev. Jur. UIPR 83 (2019–2020).

[322] Const. P.R. art. III, §21. (“The House of Representatives shall have exclusive power to initiate impeachment proceedings and, with the concurrence of two-thirds of the total number of members of which it is composed, to bring an indictment. The Senate shall have exclusive power to try and to decide impeachment cases, and in meeting for such purposes the Senators shall act in the name of the people and under oath or affirmation. No judgment of conviction in an impeachment trial shall be pronounced without the concurrence of three-fourths of the total number of members of which the Senate is composed, and the judgment shall be limited to removal from office. The person impeached, however, may be liable and subject to indictment, trial, judgment and punishment according to law. The causes of impeachment shall be treason, bribery, other felonies, and misdemeanors involving moral turpitude. The Chief Justice of the Supreme Court shall preside at the impeachment trial of the Governor. The two houses may conduct impeachment proceedings in their regular or special sessions. The presiding officers of the two houses, upon written request of two-thirds of the total number of members of which the House of Representatives is composed, must convene them to deal with such proceedings.”)

[323] Id. art. IV, §2.

[324] In seventeen states, the lieutenant governor is elected separately(primary and general election) from the governor: Alabama, Arkansas, California, Delaware, Georgia, Idaho, Louisiana, Mississippi, Missouri, Nevada, North Carolina, Oklahoma, Rhode Island, Texas, Vermont, Virginia, and Washington. The people are best represented in a direct democracy via this system. We wouldn’t advance democratic rights if we adopted a system similar to the federal government and most states. Louis Jacobson, The Challenges of Electing Governors and Lieutenant Governors Separately, The Center for Politics, Jan. 27. 2022, https://centerforpolitics.org/crystalball/challenges-of-electing-governors-and-lieutenant-governors-separately/.