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Ballot Law Update: Legislatures respond to banner year for initiatives in 2016
By Ballot Measures Project staff
As of July 15, 2017, Ballotpedia was covering 185 bills concerning laws surrounding ballot measures and recall that were proposed or reconsidered during the 2017 legislative sessions of 33 states. Of the bills being tracked, 61 were pending, 17 were approved, 75 had failed or died in committee, and 32 were neither approved nor rejected in states that carry over bills from odd-numbered years to even-numbered years. Legislators haven't been the only ones to seek changes to laws governing ballot measures in 2017; initiatives and veto referendums concerning initiative processes have also been filed. Beyond changes to laws governing ballot measures, state legislatures and officials have amended, repealed, or otherwise altered the effect of initiatives that were approved in 2016 in at least seven states.
The map below shows states (colored in blue) in which legislators have proposed bills related to ballot measure and recall laws in 2017. States in which more bills have been proposed are displayed in a darker shade:
Setting the stage:
In 2016, voters across the country decided more citizen initiatives than they had in any year since 2006. In the decade following 2006, there had been a downward trend in the number of statewide ballot measures, including measures put on the ballot through citizen signature petition drives. In 2016, however, policies such as marijuana, minimum wage, firearm regulations, solar power, the death penalty, crime and law enforcement issues, pay-day lending, and more were all put before voters through signature petitions.
The initiative process was originally designed as a way to circumvent state legislatures. Because of this, state legislatures sometimes target hedge the initiative process in their states with a variety of restrictions that constrain its power. Based on this, Ballotpedia predicted a reaction from state legislatures to the 2016 initiative surge. In 2017, certain state legislatures responded in two different ways: (1) by repealing, amending, or otherwise affecting the impact of approved initiatives and (2) by passing legislation to restrict the initiative process. Advocates of the initiative process have attempted to counter and prevent these legislative actions by submitting initiatives or veto referendums designed to create protections for approved initiatives or to repeal restrictions on the process.
Initiative process changes following 2016 elections
Bills with provisions that add restrictions to the initiative process were introduced in the 2017 legislative sessions of Arkansas, Arizona, Maine, Oregon, and South Dakota. Proposals included pay-per-signature bans, distribution requirements, campaign finance restrictions, circulator registration requirements, supermajority requirements, subject-specific notification requirements, and more.
Conflict over initiative restrictions in Arizona:
In 2016, Arizona voters approved Proposition 206—an initiative to increase the minimum wage and establish paid sick leave requirements. In 2017, the Arizona State Legislature passed both a ban on paying petition circulators according to the number of signatures gathered and a law requiring initiative petitions to strictly comply with technical procedures and initiative petition requirements—two laws that, according to critics, significantly increase the difficulty and cost of initiative petition drives. Both laws were targeted by veto referendum efforts. Two groups filed veto referendums against the pay-per-signature ban. One of those groups, Voters of Arizona, also filed a lawsuit and a veto referendum effort against the strict compliance law. The group is focusing its resources on the lawsuit, resulting in a lack of paid signature gatherers for the remaining portion of the veto referendum effort; a paid signature gathering element is essential to most successful signature petition drives. Arizona legislators also considered, but did not pass, legislation to create a distribution requirement for initiative petitions, ban out-of-state contributions, and remove Arizona's restrictions on the legislature's ability to amend or repeal initiatives.
Task forces in the Dakotas formed to study initiative process and recommend changes:
South Dakota featured nine initiatives and referendums in 2016. Three were approved, one of which—Measure 22—was repealed by the legislature in 2017. Topics included elections and campaign finance, crime, and pay-day loans. North Dakota voters decided three initiatives in November 2016, two of which passed. Multiple initiative-related bills were introduced in the legislative sessions of South Dakota and North Dakota. South Dakota's lawmakers considered bills that would have established a distribution requirement and enacted a 60 percent supermajority for constitutional amendments—including initiated constitutional amendments—and the legislators of both states considered bills to restrict out-of-state campaign contributions. Ultimately, instead of making significant changes to the initiative process, both states authorized the formation of commissions to study the initiative processes of the states and recommend changes. North Dakota also passed bills that affect campaign finance reporting requirements and prohibit foreign contributions for political purposes. South Dakota added a mandatory fiscal impact report to its initiative process and extended the effective date of initiatives.
Implementing legislation approved for Colorado Amendment 71; lawsuit ongoing:
The Colorado State Legislature approved implementing legislation for Amendment 71—the initiative approved in 2016 that enacted a distribution requirement and a supermajority requirement for initiated constitutional amendments. A lawsuit seeking to invalidate Amendment 71 is currently ongoing. Plaintiffs, including sponsors of the failed 2016 ColoradoCare initiative, argued that the initiative violates the First Amendment (freedom of speech) and Fourteenth Amendment (due process) of the U.S. Constitution.
Bills that were considered but failed:
Bills enacting a distribution requirement or strengthening an existing distribution requirement were considered but not passed in the following states:
Bills designed to ban or restrict out-of-state contributions to ballot measure campaigns were considered but not approved in the following states:
2016 initiatives that were repealed, amended, or otherwise affected
There are 11 states with no restrictions on how soon or with what majority the legislature can amend or repeal initiated state statutes. Moreover, in every state featuring an initiative or veto referendum process, post-election lawsuits challenging the validity of citizen initiatives—either in part or in whole—are common. There are also cases in which the legislature passes implementing legislation prescribing the details of enactment for initiated constitutional amendments that is opposed or criticized by initiative proponents. Initiated constitutional amendments cannot, themselves, be amended or repealed without voter approval since constitutional amendments require voter approval in every state but Delaware. Exceptions to this can be explicitly written into the language of constitutional amendments in order to allow the legislature to change them without voter approval. In some cases, the legislature uses its ability to amend initiatives to change them in accordance with the intention of initiative proponents.
Below are instances of 2016 initiatives that were approved by voters but were considered for amendment or repeal by state legislatures, were overturned in court, or otherwise featured setbacks with enforcement or enactment:
Arkansas
- See also: Arkansas 2016 ballot measures
- The Arkansas General Assembly made several changes to Issue 6—the medical marijuana legalization initiative. These amendments were explicitly allowed by the language of the initiative, and, thus, did not require voter approval.
Florida
- See also: Florida 2016 ballot measures
The Florida legislature passed a bill—Senate Bill 8A—as implementing legislation for Amendment 2, which legalized medical marijuana. Senate Bill 8A banned smoking medical marijuana, determined qualifying conditions, required doctors to take a two-hour $500 course before prescribing marijuana, and banned doctors with a financial interest in marijuana growing or testing facilities from prescribing marijuana. On July 5, 2017, John Morgan, the chairman of People United for Medical Marijuana (PUMM), filed litigation in the Florida 2nd Circuit Court. He said that Senate Bill 8A's ban on smoking medical marijuana violated Amendment 2. The lawsuit argued that the amendment was designed to leave the administration of marijuana to the judgment of a licensed physician and was intended to allow for medical marijuana to be smoked.[1][2]
Maine
- See also: Maine 2016 ballot measures
As of 2017, Maine was one of the 11 states with no restrictions on how soon or with what majority the legislature could repeal or amend initiated state statutes. Maine voters approved four initiatives in 2016, and legislation designed to amend or repeal each of them was introduced in the 2017 session. Ultimately, one was repealed in its entirety, one was repealed in part, and one was amended to delay implementation:
- The Maine State Legislature approved a bill to reinstate a tip wage credit, which was repealed by minimum wage initiative Question 4. The tip wage credit allows employers to apply tips as a credit to up to 50 percent of the minimum wage. In other words, it allows the minimum wage of tipped workers to be reduced by up to half of the prescribed wage, while Question 4 was designed to incrementally increase the minimum wage for tipped workers to be equal to the minimum wage for non-tipped workers—$12 per hour—by 2024.
- Maine lawmakers—as part of a final budget agreement—repealed 2016 Question 2. Question 2 was designed to add a 3 percent income tax on income above $200,000 in order to fund education.
- On February 2, 2017, the Maine Supreme Judicial Court—as requested by the Maine State Senate—gave an advisory ruling on the constitutionality of Question 5, the initiative designed to establish a ranked-choice voting (RCV) system. The court said that ranked-choice voting was unconstitutional for the offices of governor and for state legislative elections because RCV requires a majority for approval, while the state constitution explicitly states that a plurality—more votes than other candidates but not necessarily a majority—dictates a winner. The legislature considered bills to both amend the constitution to make it compatible with RCV and to repeal Question 5 entirely. Neither bill was approved.
- The Maine State Legislature passed a bill that made changes to Question 1—the marijuana legalization initiative—to delay the full implementation of the measure. The bill specifically delayed the licensing of retail marijuana facilities until February 2018.
Massachusetts
- See also: Massachusetts 2016 ballot measures
As of 2017, Massachusetts was one of the 11 states with no restrictions on how soon or with what majority the legislature could repeal or amend initiated state statutes.
- On December 28, 2016, the Massachusetts legislature voted to amend Question 4—the marijuana legalization initiative—to delay sales of recreational marijuana for six months. Originally, licensing for cannabis shops was set to begin on January 1, 2018, under the measure, but the delay approved by legislators moved the date to July 1, 2018. Personal use, possession, and cultivation of marijuana all became legal on December 15, 2016. On July 19, 2017, the state legislature approved a bill that increased the tax rate allowed for marijuana sales, authorized municipalities in which a majority of voters rejected Question 4 to ban marijuana stores without a referendum, and made other changes. To read details, click here.[3][4]
Missouri
- See also: Missouri 2016 ballot measures
- The United States District Court for the Western District of Missouri ruled certain provisions of Missouri Amendment 2 unconstitutional. Amendment 2 established limits on campaign contributions to candidates for state or judicial office.
Montana
- See also: Montana 2016 ballot measures
As of 2017, Montana was one of the 11 states with no restrictions on how soon or with what majority the legislature could repeal or amend initiated state statutes.
- The Montana State Legislature amended I-182—the medical marijuana initiative—to fix a clerical error and repeal the state’s three-patient limit immediately rather than on June 30, 2017. Unlike many other instances of legislatures amending or repealing 2016 initiatives, this action by the legislature was in line with the stated intention of initiative proponents.
Nevada
- See also: Nevada 2016 ballot measures
- Nevada Attorney General Adam Paul Laxalt (R) said that Question 1—the initiative requiring background checks for all gun purchases—could not be enforced due to the refusal of the FBI to participate in the expanded background checks and the fact that the initiative was designed specifically to require the use of the FBI's National Instant Criminal Background Check System.
Oklahoma
- See also: Oklahoma 2016 ballot measures
As of 2017, Oklahoma was one of the 11 states with no restrictions on how soon or with what majority the legislature could repeal or amend initiated state statutes.
- A bill to repeal sections of State Question 781—the initiative that reclassified certain property offenses and drug possession violations as misdemeanor crimes—was introduced in the Oklahoma State Legislature, but it was not approved in the 2017 session.[5]
South Dakota
- See also: South Dakota 2016 ballot measures
As of 2017, South Dakota was one of the 11 states with no restrictions on how soon or with what majority the legislature could repeal or amend initiated state statutes.
- The South Dakota State Legislature repealed Measure 22—a citizen initiative designed to enact campaign finance and lobbying restrictions and create a publicly funded campaign finance system. This repeal motivated an initiative effort by Measure 22 proponents to restrict the legislature's ability to repeal or amend initiated state statutes.
Initiatives and referendums about the initiative process
Eight initiatives and veto referendums regarding the initiative process and ballot measures have been filed in Colorado, South Dakota, and Missouri. Three of these initiatives were designed to restrict the ability of the state legislature to amend or repeal citizen initiatives after they are approved; two of these initiatives would require voter approval for any such bills. Eleven states have no restrictions on how soon or with what majority the state legislature can repeal or amend initiated state statutes. California is the only state that currently requires the legislature to submit changes to citizen initiatives to the voters. Arizona law doesn't allow the repeal of citizen initiatives. It does, however, allow the legislature to make changes with a three-fourths majority vote as long as those changes are in line with the purpose of the initiative. The other seven states featuring a process for initiated state statutes (a) require a certain supermajority requirement to amend or repeal initiatives or (b) prevent initiatives from being altered for a certain amount of time—ranging from two to seven years. Some states have both restrictions or a combination of them.
Colorado:
- An initiative was filed to repeal Colorado Amendment 71—which established a distribution requirement for initiated constitutional amendments and a supermajority requirement for both initiated and referred constitutional amendments. The initiative would go on the ballot in 2018 if proponents are successful. The initiative would also allow electronic signatures on initiative petitions.
South Dakota: Two initiatives designed to add restrictions to the legislature's authority over initiatives and the initiative process were filed in South Dakota. Currently, South Dakota is one of the 11 states that have no restrictions on how soon or with what majority the state legislature can repeal or amend initiated state statutes.
- One initiative amendment was filed by the proponents of 2016's campaign finance-related Initiated Measure 22, which was repealed by the state legislature. The initiative would go on the November 2018 ballot and would require voter approval of changes to the initiative process and the amendment or repeal of initiated state statutes. It would also enact campaign finance regulations.
- The other initiative would do the following: (a) require the state legislature to refer to the ballot for voter approval or rejection all bills that change the state's initiative signature requirement, the length of the circulation period for initiatives, or the percentage of voters required to approve initiatives at the ballot, (b) restrict the legislature's ability to amend or repeal initiatives by requiring a two-thirds (66.67%) vote to do so for the first seven years after an initiative goes into effect, and (c) make other changes to the initiative process.
Another initiative was filed in South Dakota for the 2018 ballot that would ban out-of-state contributions to ballot question committees.
Missouri: Missouri is also one of the 11 states that have no restrictions on how soon or with what majority the state legislature can repeal or amend initiated state statutes.
- An initiative designed to require voter approval before the legislature could repeal or amend citizen initiatives was filed for circulation in Missouri and could be on the ballot there in 2018.
Approved legislation
Arizona
Arizona House Bill 2404 was designed to prohibit paying circulators according to the number of signatures collected; make paying circulators on a per-signature basis a class 1 misdemeanor; and increase the number of days that legal challenges to the registration of circulators can commence from five days to 10 business days after signatures are filed.
- Two veto referendum signature petition drives targeting HB 2404 were started.
- The introduced version of the bill was written to also require paid circulators to register with the state, make certain disclosures, complete a training program provided by the state, and pay a registration fee; require initiative proponents to post bonds for paid signature gatherers ranging from $10,000 to $50,000; and create an Initiative and Referendum Integrity Fund. These provisions were removed through amendments, however. Provisions similar to them were included in separate legislative efforts.
Arizona House Bill 2244 was designed to require strict scrutiny of initiative petitions and strict compliance with all rules surrounding the process. It was written to allow petition signatures to be rejected based on technical deficiencies. The bill was approved by the Arizona State Senate on April 12, 2017, and it was approved by the Arizona House of Representatives and transmitted to the governor on April 13, 2017.
- A veto referendum signature petition drive targeting HB 2244 was started, and a lawsuit was filed against it.
Arkansas
Arkansas House Bill 1440 was designed to make require initiative and referendum sponsors to file a list of paid circulators, their addresses, and their signature cards to the secretary of state upon filing their petition.
Colorado
Colorado Senate Bill 17-152 was designed to implement changes to the state's rules governing constitutional amendments that were approved in 2016 by Amendment 71. Amendment 71 implemented a distribution requirement for initiated constitutional amendments and a 55 percent supermajority requirement for all constitutional amendments.
Maine
Maine Legislative Document 299 was designed to require the state treasurer's bond statement for bond issues to be printed on the ballot and as a separate document. Going into 2017, the state treasurer's bond statement was to be printed on the ballot or as a separate document.
Maryland
Maryland Senate Bill 130 was designed to prohibit any foreign government, political party, individual, partnership, association, corporation, organization or other foreign entity from contributing to a ballot issue campaign or to a person that contributes to support or oppose a ballot issue.
Nevada
Nevada Assembly Bill 45 was designed to do the following:
- make certain changes to the timeline and deadlines for recall, initiative, and referendum petitions;
- require the registration of petition circulators with the secretary of state;
- make rules and establish requirements for the withdrawal of an initiative petition.
North Dakota
North Dakota Senate Bill 2135 was designed to establish a commission to study the state's initiative and referendum process in 2017 and 2018 and propose amendments.
North Dakota Senate Bill 2343 was designed to establish certain campaign finance reporting requirements.
North Dakota House Bill 1234 was designed to prohibit political or election-related contributions from foreign governments, parties, corporations, or individuals.
Oregon
Oregon House Bill 2696 was designed to alter policy on the state's voter information pamphlet to include special district ballot measures and candidate elections under certain conditions.
Oregon Senate Bill 520 was designed to require "that recall of district officer of irrigation district follow standard procedures for recall of public officers."
South Dakota
South Dakota Senate Bill 77 was designed to require that a fiscal impact report and summary be provided for any initiated or referred measure.
South Dakota Senate Bill 59 was designed to make the effective date for approved ballot measures—initiatives and referred measures—the first day of July after the election results for the measure are certified instead of the day upon which the election results for the measures are certified.
South Dakota House Bill 1141 was designed to establish a task force to investigate the state's initiative and veto referendum process and suggest changes.
Utah
Utah Senate Bill 69 was designed to require that the following information be provided to voters in a municipality with a proposition on the ballot in certain prescribed ways—including by mail, electronically, and online:
- the ballot title of the proposition;
- instructions about how to filed arguments in support of or opposition to the proposition; and
- the deadlines for submitting such arguments.
Utah House Bill 255 was designed to require a disclosure statement concerning the percentage of the tax increase to be added to the following items:
- the notice of the public hearing on the initiative;
- the fiscal impact statement;
- the voter information pamphlet; and
- the ballot title.
See also
Footnotes
- ↑ Washington Times, "Attorney plans lawsuit to allow for smoking of medical pot," June 11, 2017
- ↑ Sunshine State News, "John Morgan: I'll Sue for Smokeable Marijuana, and I'll Win," June 21, 2017
- ↑ Bangor Daily News, "Massachusetts delays retail sales of marijuana six months," December 28, 2016
- ↑ Massachusetts Legislature, "H. 3818," accessed July 19, 2017
- ↑ Oklahoma Legislature, "Senate Bill 503," accessed July 16, 2017
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