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The Tuesday Count: Federal intervention hovers over 2012 statewide measure issues

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November 27, 2012

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By Al Ortiz and Eric Veram

Ballot measure activity for the 2013 ballot has been reasonably slow, with no measures on the ballot thus far. However, in the aftermath of 2012, federal action could have ripple effects on certain ballot measure topics that were voted upon this past year and in previous years.

The political topics of same-sex marriage, marijuana and gambling are currently linked to federal lawsuits and petitions in the country, and whatever the outcome may be will reverberate down to the state level, particularly ballot measures that have been approved by voters.

Marriage

This week, the United States Supreme Court will decide whether or not they should rule if same-sex couples have the right to marry under the United States Constitution. According to reports, the justices of the court will weigh on what to decide and when to decide it. Reports say that the court has been criticized for either ruling too slowly or too quickly on constitutional rights.[1]

The developments stem from appeals filed by supporters of 2008's California Proposition 8. The measure made same-sex marriage illegal in the state. However, that measure was struck down several times by lower courts. The high court must now decide on whether to hear the appeal.

The developments could have an impact on the three measures that were approved in 2012 that legalized same-sex marriage in those states; Maine, Maryland and Washington all had those measures on the ballot. Minnesota had a measure on the ballot that would have banned marriage in the state, but that was defeated at the polls.

Marijuana

Colorado's Amendment 64 legalized the use and possession of, at most, an ounce of marijuana for residents who are 21 and older. The measure was approved by voters in the state, but officials in Colorado are unsure of how federal law will affect the impacts of the measure.

It seems voters in the state are beginning to act on that uncertainty. According to reports, more than 36,000 people have signed a petition to the White House that seeks protection for Colorado from federal drug laws. If this protection is obtained, the state can begin to implement regulations for the recreational-marijuana industry. According to David Sirota, who started the petition, "It's a legal gray area. It (the petition) is a legitimate political path to get this done as opposed to just talking about it."[2]

Gambling

In 2011, New Jersey Public Question 1 was approved by state voters, authorizing wagering at casinos or gambling houses in Atlantic City and at horse racetracks on the results of professional, certain college, or amateur sport or athletic events.

However, sports betting would not be allowed in the state until a federal law that limits sports betting is repealed or overturned. This issue is now coming to a boil, as lawyers for the state want a federal judge to toss a lawsuit filed by pro sports leagues and the NCAA challenging the state’s new sports-betting law.

In a 48-page U.S. District Court filing state Attorney General Jeffrey Chiesa and former U.S. Solicitor General Ted Olson say that the federal law limiting sports betting to only select states is unconstitutional.

The National Football League and other professional sports leagues state that legalization of sports betting in New Jersey would subsequently result in damage to their business, claiming that fans would become suspicious of fixed games.

Attorneys for the state of New Jersey counter by saying the professional leagues have benefited from sports betting in Nevada.

In 1992, the U.S. Congress passed the "Professional and Amateur Sports Protection Act." The Act banned sports betting in all states with the exception of those states that already allowed some form of betting when the law was approved. Such states include: Montana, Oregon, Delaware, and Nevada.[3]

Quick hits

Failed marijuana initiative resubmitted in Montana: Though the Montana Marijuana Legalization Amendment failed to gather enough signatures to make it to the 2012 ballot, Barb Trego, the measure's sponsor, has resubmitted the initiative to the Montana Secretary of State for approval. Trego is attempting to have the measure placed on the 2014 ballot, and is the first to submit an initiative effort for that election season. Reportedly, Trego is a medical marijuana user who claims the drug allowed to her to go back to work. In a statement made to the Associated Press she said, "The fact is it's a lot less dangerous for you than alcohol and I think people ought to have a choice."[4]

Oregon lawmaker looks repeal the death penalty with ballot question: In response to a call by Governor John Kitzhaber to end capital punishment in Oregon, Representative Mitch Greenlick has authored a bill that would replace the death penalty in the state with life in prison without parole. Since capital punishment is written directly into the Oregon constitution, an amendment is necessary to abolish the practice. If the amendment passes the Oregon legislature, it will be placed on the ballot as a legislatively-referred constitutional amendment in 2014.[5]


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Local 2012 school bonds and taxes report by Ballotpedia

Ballotpedia is working to update local ballot measure election results in the 11 states that are covered.

When that is completed, Part 2 of local school bond and tax question approval rates analysis will be completed. The report will list the statistics for school bond, tax and budget votes held in all of 2012 in the states of California, Florida, Illinois, Michigan, Missouri, New York, Ohio, Oregon, Texas, Washington and Wisconsin.

The overall approval rate for the first half of 2012 was 75.9%.

The average approval rating for school property tax votes was 84.9% in the nine states[6] which had issues on their ballots. The average approval rating for school bond elections was lower with an approval rating set at 61.6% in a total of 10 states (California, Florida, Illinois, Michigan, Missouri, Ohio, Oregon, Texas, Washington and Wisconsin).

To view more of Part 1, click here.

The Tuesday Count Spotlight highlights notable developments from local ballot measures across the country as well as international ballot measures.


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BALLOT LAW UPDATE
Supporters of the Oklahoma Affirmative Action Ban Amendment believe the measure can survive legal challenges: Though voters in the state passed State Question 759, supporters of similar amendments in other states have faced intense lawsuits often ending in federal court. On November 15, the 6th U.S. Circuit Court of Appeals struck down a 2006 ballot measure banning the use of affirmative action in Michigan. The court's 8-7 decision stated that the measure was illegal because banning the practice through referendum it presents an extraordinary burden to opponents. The court suggested that a fairer method for supporters and opponents to debate affirmative action would be through the governing boards of each public university.

Supporters of the measure in Oklahoma, however, point to the fact that the 9th U.S. Circuit Court of Appeals upheld an initiative in California banning affirmative action. They say that the amendment in Oklahoma was modeled on the California measure and should pass any legal challenges. Such a legal challenge has not come to the 10th Circuit, the circuit in which Oklahoma is located, but if it does, it could raise chances that the U.S. Supreme Court gets involved in the matter.[7]

Medical marijuana case from Montana could reach federal appeals court: Montana medical marijuana provider Chris Williams faces a possible 80-year prison sentence after being found guilty of eight criminal charges in September. The case comes as the result of a series of raids in 2011 by federal law enforcement officers on medical marijuana dispensaries in Montana. Following the raids, Williams was the only provider indicted who refused a number of plea deals in favor of a jury trial. In court, however, the jury never got to hear about Montana's medical marijuana laws U.S. District Judge Donald Molloy said that the federal Controlled Substances Act supersedes contradictory state laws because of the Constitution's Supremacy Clause. Williams's attorneys have appealed the case to the 9th U.S. Circuit Court of Appeals and a petition has been started online asking President Barack Obama to intervene.[8]


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