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State Ballot Measure Monthly: May 2021
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By Ballot Measures Project staff
This edition of the State Ballot Measure Monthly covers certifications and a selection of notable ballot measure news from April 22 through May 17.
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Number of certifications in past years
Odd-numbered years:
- An average of six measures were certified for odd-year ballots by this point from 2011 through 2019.
- An average of 31 statewide measures were eventually certified for odd-year ballots from 2011 to 2019.
Even-numbered years:
- An average of 27 measures were certified for even-year ballots by this point from 2009 through 2019.
- An average of 172 statewide measures were eventually certified for even-year ballots from 2010 to 2020.
2021 certifications
From April 22 through May 17, four statewide measures were certified.
May 11:
- The New York Assembly approved two amendments for the ballot to authorize no-excuse absentee voting and same-day voter registration. The Senate approved the amendments for the ballot in January, and both chambers approved them for the ballot in 2019. To refer constitutional amendments to the ballot, the legislature must approve them by a simple majority vote in each chamber during two successive sessions with a legislative election in between. Currently, the state constitution requires voters to be absent from their county of residence, ill, or physically disabled to vote with an absentee ballot. The constitution also requires that people must register to vote at least ten days before an election, thus prohibiting same-day voter registration.
- Texas Proposition 3, Prohibition on Limiting Religious Services or Organizations Amendment (2021) - This amendment would prohibit the state or any political subdivision from limiting religious services or organizations. On March 25, the Senate voted 28-2 to put the measure on the ballot. The House approved the measure for the ballot on May 11 in a vote on 108-33. In the Senate, 18 Republicans and 10 Democrats voted in favor of the amendment, and two Democrats voted against it. In the House, 81 Republicans and 27 Democrats voted in favor of the amendment, and 33 Democrats voted against it. Both chambers of the Texas Legislature must approve amendments by a two-thirds (66.67%) vote to refer them to the ballot.
- This measure was the first the legislature sent to the 2021 ballot. From 1995 through 2019, the legislature referred an average of 13 constitutional amendments to odd-year ballots. The number of constitutional amendments on odd-year ballots ranged from seven to 22.
- As of May 15, Ballotpedia has identified nine statewide measures certified for 2021 and 2022 ballots that were proposed in response to the coronavirus pandemic and coronavirus-related regulations. The measures concern executive emergency declarations, election procedures, special legislative sessions, and religious services and organizations. Ballotpedia is also tracking eight potential statewide measures.
May 14:
- Texas Proposition 7, Homestead Tax Limit for Surviving Spouses of Disabled Individuals Amendment (2021) - This amendment would allow the legislature to provide a homestead property tax exemption for the surviving spouse of a disabled individual if the spouse is 55 years of age or older and remains at the homestead. The amendment would also apply the exemption retroactively for the 2020 and 2021 tax years. Both chambers of the legislature unanimously approved the amendment.
2022 certifications
From April 22 through May 17, 14 statewide measures were certified.
April 22:
- Montana LR-131, Medical Care Requirements for Born-Alive Infants Measure (2022) - This measure would require healthcare providers to provide medical care to infants born alive after an attempted abortion. It would set penalties for healthcare providers who violate the measure at a maximum of a $50,000 fine and/or 20 years in prison. The legislature referred the statute to the ballot largely along party lines. All but two Republicans voted in favor of the amendment, all Democrats voted against it. The legislature can refer statutes to the ballot through a simple majority vote in both chambers. The governor's signature is not required.
April 23:
- Montana C-48, Search Warrant for Electronic Data Amendment (2022) - This amendment would require a search warrant to access electronic data or electronic communications. On Feb. 23, the Senate unanimously approved it for the ballot. On April 23, the House approved it for the ballot in a vote of 76-23. In the House, 66 Republicans and 10 Democrats voted in favor of the amendment, and 22 Democrats and one Republican voted against it. The legislature can refer a constitutional amendment to the ballot through a two-thirds (66.67%) vote in both chambers. The governor's signature is not required.
April 26:
- Montana LR-132, Electing Supreme Court Justices by Districts and Chief Justice Selection Measure (2022) - This measure would require that the seven state Supreme Court justices be elected by district. It would also provide for the selection of the chief justice by a majority vote of the justices beginning with the general election of 2024. On April 23, the Senate approved the measure for the ballot in a vote of 29-21. Twenty-nine Republicans voted in favor of the measure, and 19 Democrats and two Republicans voted against it. On April 26, the House approved the measure for the ballot in a vote of 65-34. Sixty-five Republicans voted in favor of the measure, and 32 Democrats and two Republicans voted against it.
- Florida Amendment 1, Disregard Flood Resistance Improvements in Property Value Assessments Measure (2022) - This amendment would authorize the legislature to pass laws prohibiting flood resistance improvements to a home from being considered when determining a property's assessed value for property tax purposes. The legislature unanimously passed it.
April 27:
- Florida Amendment 2, Abolish the Constitution Revision Commission Measure (2022) - This amendment would abolish the Florida Constitution Revision Commission (CRC). The CRC is a 37-member commission unique to Florida that meets every 20 years to propose changes to the state's constitution and refer them to the statewide ballot. The first CRC met in 1977. On March 25, the Senate approved the amendment for the ballot in a vote of 27-12. Twenty-four Republicans and three Democrats voted in favor of the amendment, and 12 Democrats voted against it. On April 27, the House approved the amendment for the ballot in a vote of 86-28. Seventy-five Republicans and 11 Democrats voted in favor of the amendment, and 28 Democrats voted against it. The legislature must pass an amendment by a three-fifths (60%) vote in both chambers to refer it to the ballot.
- The Florida Constitution Revision Commission of 2017-2018 referred eight measures to the Nov. 2018 ballot. Voters approved all of the amendments except for Amendment 8, which a court ruling blocked from appearing on the ballot. Six of the eight CRC measures were different proposals combined into one amendment.
- Arkansas Issue 3, Government Burden of Free Exercise of Religion Amendment (2022) - This amendment would provide that "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability." On April 22, the Senate approved the amendment for the ballot in a vote of 27-4. Twenty-five Republicans, one Democrat, and one Independent voted in favor of the amendment, four Democrats voted against it. On April 27, the House approved the amendment for the ballot in a vote of 75-19. Seventy-five Republicans voted in favor of the amendment, and 18 Democrats and one Republicans voted against it.
April 29:
- Tennessee Right-to-Work Amendment (2022) - This right-to-work amendment would add a new section to the state constitution to state that it is illegal for workplaces to require labor union membership for employees as a condition for employment. Tennessee has a right-to-work statute, which was enacted in 1947. The Tennessee Legislature can refer a constitutional amendment to the ballot through a majority vote in each chamber in the first of two successive legislative sessions and a two-thirds (66.67%) vote in each chamber during the second session. The legislature approved the amendment in 2020. On March 8, the Senate approved the amendment for the ballot by a vote of 24-7. Twenty-four Republicans voted in favor of the measure, and six Democrats and one Republican voted against it. On April 29, the House approved the amendment for the ballot by a vote of 67-24. Sixty-seven Republicans voted in favor of the measure, and 23 Democrats and one Republican voted against it.
- Alabama Amendment 1, Authorize $85 Million in Bonds for Public Historical Sites and State Parks Measure (May 2022) - This amendment would issue up to $85 million in bonds for improvement, renovation, acquisition, construction, and maintenance of state parks managed by the Department of Conservation and Natural Resources and historical sites managed by the Alabama Historical Commission. Both chambers of the legislature unanimously approved the amendment for the ballot.
- Alabama Authorize Certain Cities to Use Special Property Tax Revenue to Pay for Capital Improvements Directly Amendment (2022) - This amendment would allow certain cities that were previously authorized to pass a special property tax to pay for bonds or other forms of debt to fund capital improvements to instead use the tax revenue to pay for capital improvements directly. Both chambers of the legislature unanimously approved the amendment for the ballot.
May 4:
- Missouri Amendment 1, State Treasurer Investment Authority Amendment (2022) - This amendment would allow the state treasurer to invest state funds in highly rated municipal securities. The House approved the amendment for the ballot by a vote of 156-1. The Senate unanimously approved it for the ballot on May 4.
- Tennessee Remove Slavery as Punishment for Crime from Constitution Amendment (2022) - This amendment would remove language from the state constitution that allows the use of slavery and involuntary servitude as criminal punishments and replace it with "Slavery and involuntary servitude are forever prohibited." Both chambers of the legislature unanimously approved it for the ballot in 2019. On March 15, the Senate approved it for the ballot by a vote of 26-4. On May 4, the House approved it for the ballot by a vote of 81-2.
- Tennessee Acting Governor Amendment (2022) - This amendment would provide a process, along with a line of succession, for an acting governor when the governor is unable to perform the office's powers and duties. The House and Senate unanimously approved it for the ballot on May 3 and May 4, respectively.
May 10:
- Arizona In-State Tuition for Non-Citizen Residents Measure (2022) - This measure would allow non-citizen students to receive in-state college tuition when a student (a) attended school in Arizona for at least two years and (b) graduated from a public school, private school, or homeschool in Arizona. The ballot measure would repeal provisions of Proposition 300, which voters approved in 2006. Proposition 300 provided that non-citizens could not receive certain state-subsidized services, benefits, or financial aid or in-state tuition rates. In Arizona, voter approval is required for the legislature to amend or repeal a law previously approved by voters. On March 4, the Senate approved the measure for the ballot by a vote of 17-13. Fourteen Democrats and three Republicans voted in favor of the measure, and 13 Republicans voted against it. On May 10, the House approved it for the ballot by a vote of 33-27. Twenty-nine Democrats and four Republicans voted in favor of the measure, and 27 Republicans voted against it.
May 14:
- Nevada Minimum Wage Amendment (2022) - This measure would amend the state constitution to increase the minimum wage for all employees in Nevada to $12 per hour by July 1, 2024; remove the existing annual inflation adjustment provisions; and allow the state legislature to pass minimum wage laws setting the rate higher than the constitutionally mandated minimum. Currently, the minimum wage in Nevada is set to incrementally increase $11 for employees receiving health benefits and $12 for employees not receiving health benefits by 2024. The constitution also requires annual inflation adjustments. In Nevada, a majority vote is required in two successive sessions of the Nevada State Legislature to place an amendment on the ballot. The legislature passed the amendment along party lines in 2019. On April 12, the Assembly voted 26-16 to put the amendment on the ballot. On May 14, the Senate voted 13-8 to put the amendment on the ballot. In the 2021 votes, all Democrats voted in favor of the amendment, and all but one Republican voted against it.
Mississippi Supreme Court overturns 2020 medical marijuana initiative and rules the state's initiative process can't be used
On May 14, 2021, the Mississippi Supreme Court ruled 6-3 to overturn Ballot Measure 1 (Initiative 65), the medical marijuana initiative voters approved 74% - 26% in 2020.
The court ruled that the initiative should not have been placed on the ballot because the initiative petition did not comply with the signature distribution requirements in the Mississippi Constitution. The court held that any subsequent proceedings regarding the initiative are void. The ruling agreed with plaintiffs that the requirements in the constitution for an initiative petition were mathematically impossible to meet and have been since the state's congressional districts were reduced from five to four in 2001.[1]
Initiative 65 was designed to allow medical marijuana to be recommended for patients with at least one of the 22 specified qualifying conditions including cancer, epilepsy or seizures, Parkinson's disease, post-traumatic stress disorder (PTSD), Crohn’s disease, HIV, and more. Patients could have, under Initiative 65, possessed up to 2.5 ounces of medical marijuana at one time. Marijuana sales under Initiative 65 would have been taxed at the state's sales tax rate, which was 7% as of 2020.
On October 26, 2020, the City of Madison, Mississippi, filed the lawsuit in the Mississippi Supreme Court asking the court to invalidate Initiative 65. The city of Madison and Mayor Mary Hawkins Butler alleged that the Secretary of State unlawfully certified the measure in violation of Section 273 of Article 15 of the Mississippi Constitution. Section 273 states "The signatures of the qualified electors from any congressional district shall not exceed one-fifth ( 1/5 ) of the total number of signatures required to qualify an initiative petition for placement upon the ballot."
The lawsuit argued, "Because Mississippi has four congressional districts, it is a mathematical certainty that the number of signatures submitted in support of Initiative Measure No. 65 from at least one of the four congressional districts exceeds 1/5 of the total number required. [...] The Mississippi Legislature is aware of this mathematical impossibility ... Despite the Legislature's failure to propose an amendment to the voters, the Secretary of State nonetheless has followed an 'amended' Section 273(3) and has inserted 'the last five-district congressional district plan' into the text of the Constitution."
The 1992 constitutional amendment that granted the power of citizen initiative in Mississippi required signatures to be collected evenly from all five congressional districts that existed at the time. During 2001 redistricting after the 2000 census, however, the number of congressional districts in the state was reduced to four. Based on a 2009 attorney general's opinion, the secretary of state has used the five districts that existed before 2001 to apply the constitution's distribution requirement.
The six justices wrote, "Because Initiative 65 was placed on the ballot without meeting the section 273(3) prerequisites for doing so, it was placed on the ballot in violation of the Mississippi Constitution. Whether with intent, by oversight, or for some other reason, the drafters of section 273(3) wrote a ballot-initiative process that cannot work in a world where Mississippi has fewer than five representatives in Congress. To work in today’s reality, it will need amending—something that lies beyond the power of the Supreme Court."
Justices Jim Kitchens, Jimmy Maxwell, and Robert Chamberlain dissented. The dissent argued that the state could use the five congressional district boundaries that remained in statute to apply the distribution requirement without violating the constitution. Chamberlain’s dissenting opinion said, "[I]t stretches the bounds of reason to conclude that the Legislature in 1992, when drafting (the ballot initiative process) would have placed a poison pill within the language of the provision that would allow the provision and the right of the people to amend the constitution through initiative to be eviscerated at the whim of a federal injunction (on congressional districts) of such limited scope."
Reactions to the ruling:
Ken Newburger, Executive Director for the Mississippi Medical Marijuana Association, said, "Patients will now continue the suffering that so many Mississippians voted to end. The Court ignored existing case law and prior decisions. Their reasoning ignores the intent of the constitution and takes away people’s constitutional right. It’s a sad day for Mississippi when the Supreme Court communicates to a vast majority of the voters that their vote doesn’t matter."
State Rep. Trey Lamar (R) said, "The language of Initiative 65 that would have gone into our constitution was not good for the people of Mississippi. I thank our Supreme Court for having the courage to rule according to the law and for protecting our citizens from the unintended consequences of Initiative 65. Now, we should craft a legitimate medical marijuana program that will truly help the people who would benefit from it without all of the unintended consequences that would have come with 65."
Initiatives passed since 2001 and potential 2022 initiatives:
Eleven initiatives have been filed targeting the 2022 ballot in Mississippi, including recreational marijuana legalization, Medicaid expansion, term limits, open primaries, and redistricting.
Two other initiatives (both in 2011) made it to the ballot and were approved since 2001 reapportionment. Initiative 27 was designed to require photo identification to vote. Initiative 31 prohibited the state of Mississippi and local governments from taking private property by eminent domain and then conveying it to other persons or businesses for a period of 10 years.
Mississippi's history with the initiative and referendum powers:
This ruling marks the second time in the state's history that the Mississippi Supreme Court has disabled the state's initiative process.
Mississippi voters first approved a constitutional amendment creating processes for citizen initiatives (both statutes and constitutional amendments) and veto referendums in 1914. After first being upheld by the Mississippi Supreme Court in 2017, the court overturned the initiative and referendum amendment in 1922. The court held that, according to the state's separate vote requirement, the process for initiated state statutes and the process for initiated constitutional amendments should have been sent to the ballot as separate constitutional amendments and invalidated the 1914 amendment granting the powers.[2]
The legislature did not refer a constitutional amendment to re-establish the initiative power until 1992. The legislature referred Senate Concurrent Resolution 616 to the Nov. 1992 ballot. Voters ratified the amendment, creating the state's current initiative process. The 1992 amendment made Mississippi the most recent state to enact an initiative process and one of three states with a process for initiated constitutional amendments but not initiated state statutes or veto referendums.
In no other states has the initiative process been enacted but then repealed, invalidated, or disabled.
Florida governor signs bill limiting contributions to ballot initiative petition drive campaigns to $3,000
On May 7, Florida Gov. Ron DeSantis (R) signed Senate Bill 1890, which puts a $3,000 limits on campaign contributions to committees in support of or opposition to ballot initiatives until the secretary of state certifies the measure for the ballot and assigns it a ballot position and number designation. The bill was designed to lift the contribution limits after a measure is put on the ballot.
On April 14, the Florida Senate passed the bill 23-17. Twenty-three Republicans were in favor, and 16 Democrats and one Republican were opposed. On April 26, the Florida House of Representatives passed the bill 75-40. All 75 voting Republicans were in favor, and all 40 voting Democrats were opposed. The bill was designed to take effect on July 1, 2021.
In Florida, initiative proponents must collect signatures equal to 8% of votes cast at the previous presidential election. The requirement to put an initiative on the 2022 ballot is 891,589 valid signatures. Florida also has a signature distribution requirement, which requires that signatures equaling at least 8% of the district-wide vote in the last presidential election be collected from at least half (14) of the state's 27 congressional districts. In 2020, four initiatives qualified for the ballot in Florida. The petition drives to put those measures on the ballot cost an average of $6.7 million each, ranging from $4 million to $8.8 million. From 2016 through 2020, the average cost of a successful initiative petition drive in Florida was about $5.1 million.
Nationwide, the average cost of a successful initiative petition drive was $2.1 million in 2020. It was $1.2 million in 2018.
In all states with the initiative process, including Florida, it is very common for one or a small number of top donors to fund a petition drive. Contributions of under $3,000 are more common after the measure is certified and the campaigns are focused on the election.
Each of Florida's four successful petition drives in 2020 had one donor or associated entities backing them.
On May 8, the ACLU of Florida filed a lawsuit in the U.S. District Court for the Northern District of Florida arguing that SB 1890 violates the First Amendment and that the state has “no significant state or public interest in curtailing debate and discussion of a ballot measure.” The lawsuit cited previous U.S. Supreme Court rulings that overturned contribution limits for ballot measure committees, including Citizens Against Rent Control v. City of Berkeley (1981), First National Bank of Boston v. Bellotti (1978), and Buckley v. Valeo (1976). The U.S. Supreme Court has ruled in previous cases that political contributions constitute freedom of speech and cannot be limited without a compelling state interest, such as to prevent corruption and bribery. The court has also ruled that “referenda are held on issues, not candidates for public office. The risk of corruption perceived in cases involving candidate elections simply is not present in a popular vote on a public issue.”
As of May 3, 2021, Ballotpedia had tracked 197 legislative proposals concerning ballot initiatives, veto referendums, referrals, local ballot measures, and recall in 39 states in 2021 legislative sessions. At least 22 had been approved, and 20 had been defeated or had died.
Legislators in Arkansas, Florida, Idaho, Montana, Oklahoma, South Dakota, and Utah have passed restrictions on the initiative processes in their states in 2021.
Notable topics among bills introduced in 2021 sessions include
- supermajority requirement increases,
- signature requirement and distribution requirement increases,
- single-subject rules,
- pay-per-signature bans,
- residency requirements and other circulator restrictions,
- fiscal impact statement and funding source requirements, and
- ballot measure campaign contribution restrictions.
See also
- 2021 ballot measures
- 2022 ballot measures
- List of ballot measures by state
- List of ballot measures by year
- Ballot initiatives filed for the 2021 ballot
- Ballot Measure Scorecard, 2021
- Ballot Measure Scorecard, 2022
- Ballotpedia's Tuesday Count for 2021
- Ballotpedia's Tuesday Count for 2022
Related articles
Footnotes
- ↑ Mississippi Courts, "Butler v. Watson," May 14, 2021
- ↑ Waters, M. Dane. The Initiative and Referendum Almanac. Durham, North Carolina, Carolina Academic Press, 2018
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