On Wednesday, Michigan Attorney General Dana Nessel (D) released an opinion stating that a distribution requirement and some other provisions restricting the state’s initiative process passed in 2018 were unconstitutional.
Nessel’s opinion is binding for state officials unless a court ruling overturns it. The opinion was requested by Michigan Secretary of State Jocelyn Benson (D), who would have been involved in the enforcement of the new initiative petition rules.
In 2018’s lame-duck legislative session the Michigan State Legislature approved and Gov. Rick Snyder (R) signed Michigan House Bill 6595 (now Public Act 608). HB 6595 (PA 608) created a distribution requirement for initiative signature petitions in Michigan limiting the number of signatures collected in any one congressional district to 15% of the total required. This effectively requires valid signatures from a minimum of seven different congressional districts for a successful initiative petition. The bill also required the disclosure on petitions of whether a petitioner is paid or volunteer; mandated a petitioner affidavit; and made other changes regarding petitioners, valid signatures, and the timeline for certification. In the Senate, 26 Republicans voted in favor of the bill, and all 11 Democrats along with one Republican voted against the bill. In the House, Republicans approved the bill 56-5, and Democrats rejected the bill 42-1.
Nessel’s opinion also declared unconstitutional the requirement that petitioners disclose on petition sheets their paid or volunteer status.
In her opinion, Nessel argued that the distribution requirement provisions of HB 6595 imposed an additional obligation for qualifying an initiative for the ballot beyond what was required or authorized by the Michigan Constitution. Nessel said, “The Legislature cannot impose an additional obligation that does not appear in article 2, § 9 and that curtails or unduly burdens the people’s right of initiative and referendum. Here, the 15% distribution requirement goes beyond a process requirement to impose a substantive limitation on the number of voters within a congressional district whose signatures may be counted under article 2, § 9.”
Nessel also cited Citizens Protecting Michigan’s Constitution v Sec’y of State—a 2018 Michigan Supreme Court ruling—that the initiative and referendum rights “can be interfered with neither by the legislature, the courts, nor the officers charged with any duty in the premises.”
In response to Nessel’s opinion, Rep. Jim Lower (R), who sponsored HB 6595, said, “I don’t think anybody’s surprised. I disagree with the conclusions she has come to, and I think it will be litigated.” Lower argued spreading signature gathering efforts out across more of the state shows broader support for any proposed initiatives and is a common-sense requirement.
Michigan Secretary of State Jocelyn Benson (D) said, “Both the Michigan Constitution and the First Amendment to the U.S. Constitution protect Michigan citizens’ right to amend our laws or state constitution through direct citizen petitions. I am grateful to Attorney General Nessel for clarifying the constitutional infirmities of Public Act 608.”
Sixteen other states have a distribution requirement for citizen-initiated measures.
Michigan has divided government with Republicans controlling the state legislature and a Democrat controlling the governor’s office. Michigan has a Democratic Triplex. In the 2018 elections, Democrats took control of the offices of governor, attorney general, and secretary of state—offices held by Republicans going into 2018. The 2018 elections broke an existing Republican trifecta and triplex in Michigan.
In the 2018 election cycle, Michigan voters approved three citizen initiatives:
a marijuana legalization initiative;
a redistricting commission initiative; and
an initiative adding eight voting policies to the Michigan Constitution, including straight-ticket voting, automatic voter registration, same-day voter registration, and no-excuse absentee voting.
Three other initiatives qualified for the 2018 ballot: a minimum wage initiative, a paid sick leave initiative, and an initiative repealing the state’s prevailing wage law. But, using Michigan’s indirect initiative process, the legislature passed the initiatives themselves, thereby precluding an election on them. Then, in December 2018, the legislature amended the minimum wage and paid sick leave initiatives.
On May 21, 2019, voters in Philadelphia, Pennsylvania, voted in the city’s primary election for mayor, city council, and other city offices. Voters also approved four amendments to the city’s charter according to election night results with 94% of precincts reporting. The four amendments were all referred to the ballot by the city council.
Question 1 changed gender-specific references, such as councilman, to gender-neutral references, such as councilmember, in the city’s charter. It was approved by 68% of voters.
Question 2 added the Office of Immigrant Affairs to the city’s charter, making the office permanent rather than dependent on executive orders. In 2013, Mayor Michael Nutter created the office through an executive order, and his successor, Mayor James Kenney, also authorized the office. Question 2 was approved by 74% of voters.
Question 3 calls on the Pennsylvania State Legislature to increase the minimum wage to $15.00 by 2025 and requests the legislature to allow Philadelphia to increase the city’s minimum wage. It did not have a direct, legally binding effect on the city’s minimum wage. Since 2006, Pennsylvania has preempted local governments, such as cities, from setting their own minimum wage standards. Therefore, Philadelphia cannot increase its minimum wage for private employers unless the legislature repeals the preemption clause. Question 3 was approved by 81% of voters.
Question 4 created a new class of law enforcement officers, called public safety enforcement officers (PSEO), to assist the police department in regulating traffic and enforcing code provisions. PSEOs will not have the authority to carry firearms or to detain or arrest any person. The amendment was approved by 69% of voters.
Alabama voters will decide the fate of a constitutional amendment about the state judiciary during the March 2020 presidential primary.
On May 14, 2019, the state House gave final approval to a constitutional amendment to revise the article concerning the state judiciary. The vote referred the amendment—Senate Bill 216—to the March 2020 ballot. The amendment would make changes throughout sections of the state constitution related to the judiciary. Notable changes include:
Removing the authority to appoint an administrative director of courts from the Chief Justice of the Alabama Supreme Court and give it to the Alabama Supreme Court as a whole;
increasing the membership of the Judicial Inquiry Commission; and
repealing provisions which provide for the impeachment of Supreme Court Justices and appellate judges and the removal of various state and local judges.
The state Senate unanimously approved the amendment on April 30. The state House considered a change to increase the mandatory retirement age after which a judge cannot run for another term from 70 to 75. The proposed retirement age amendment to Senate Bill 216 was rejected. The state House approved the amendment 92-6 on May 14, 2019.
This amendment was the 25th statewide measure to be certified for 2020 across the country. It was the first to be certified for the 2020 ballot in Alabama. From 1997 to 2018, the number of measures on statewide ballots in Alabama during even-numbered years ranged from four to 15. The average was eight.
On April 7, 2020, voters in Wisconsin will vote on Marsy’s Law—a type of constitutional amendment addressing the rights of crime victims. The Wisconsin State Legislature referred the constitutional amendment to the ballot on May 15, 2019. Voters in 12 other states have approved Marsy’s Law measures. Marsy’s Law has never been defeated at the ballot. Montana’s 2018 Marsy’s Law measure, however, was overturned by a court ruling, and Kentucky’s 2018 measure is pending a court ruling.
Henry Nicholas, the co-founder of Broadcom Corp., began campaigning for Marsy’s Law in 2008. His sister, Marsy Nicholas, was murdered in 1983. The first Marsy’s Law on the ballot was in California in 2008. The other states that have voted on, and approved, Marsy’s Law are Illinois (2014), Montana (2016), North Dakota (2016), South Dakota (2016), Ohio (2017), Florida (2018), Georgia (2018), Kentucky (2018), Nevada (2018), North Carolina (2018), and Oklahoma (2018). The Kentucky Marsy’s Law has not been enacted pending a court ruling. About $102.26 million was raised for the 12 Marsy’s Law constitutional amendments.
As passed by the Wisconsin State Legislature, the Marsy’s Law amendment would grant crime victims with certain rights, including a right to be treated with dignity, respect, courtesy, sensitivity, and fairness; a right to privacy; a right to be present at all criminal proceedings and hearings; a right to confer with the government prosecutor; and a right to restitution and compensation. Currently, the state constitution grants crime victims with some of these rights, such as a right to restitution.
In Wisconsin, the state legislature is required to approve an amendment by majority vote in two successive sessions for the amendment to appear on the ballot. The amendment was first approved during the 2017 legislative session. In 2019, the state Senate voted 27-5 to pass the amendment, and the state House voted 82-15 to pass the amendment. Most Republicans (94 percent) voted to refer Marsy’s Law to the ballot, while 64 percent of Democrats voted for the amendment. As Marsy’s Law was the only constitutional amendment voted on during the 2017-2018 legislative session, it is the only constitutional amendment that can appear on the Wisconsin ballot in 2020.
The organization Marsy’s Law for All advocates for Marsy’s Law constitutional amendment, stating that Marsy’s Law makes crime victims’ rights co-equal with criminal defendants’ rights in state constitutions. The ACLU of Wisconsin opposes the Marsy’s Law constitutional amendment, saying victims’ rights and defendants rights are not legally equivalent. Whereas defendants rights are rights against the state, according to the ACLU, victims’ rights are rights against an individual.
Denver elections officials certified final official results for the May 7 election on Thursday. Initiative 301 passed 50.6 percent to 49.4 percent—a margin of 2,291 votes out of the 177,903 votes cast.
The citizen initiative, which became effective on May 16th when results were certified, makes the adult possession and use of psilocybin mushrooms the lowest law enforcement priority in Denver. It prohibits the city from spending resources on enforcing penalties related to psilocybin mushrooms.
It is the first measure of its kind in the U.S. Psilocybin is classified as a Schedule I drug by the U.S. Drug Enforcement Administration (DEA). At the state level, the use and possession of psilocybin are illegal and penalized, except in certain cases allowed under the state’s right-to-try law. Right-to-try laws aim to allow terminally ill patients to gain access to experimental drugs without the permission of the FDA. Colorado was the first state to adopt a right-to-try law in 2014.
On April 9, 2019, Judge Charles Kornmann overturned South Dakota Initiated Measure 24, which banned contributions to ballot measure campaigns from outside of the state. Initiated Measure 24 was approved by South Dakota voters in 2018 55.5 percent to 44.5 percent.
Kornmann’s ruling blocks the state from enforcing the initiative, which was set to become effective on July 1, 2019. His decision applies to two lawsuits filed against the measure: he declared that Measure 24 violated the First Amendment and the Commerce Clause of the U.S. Constitution by impeding political free speech rights and interfering with the transfer of money from one state to another.
Kornmann, a federal judge with the United States District Court for the District of South Dakota, said the evidence in the case “demonstrates how important out-of-state contributions are for the ballot question committees to pursue political speech. The State cannot enact restrictions that so completely prevent those pursuing unpopular laws from amassing the resources necessary for effective advocacy.”
Concerning an appeal of the decision, Timothy Bormann, chief of staff for Attorney General Jason Ravnsborg (R), said that the attorney general’s office was considering the ruling and “examining the avenues available to our office that best coincide with protecting the best interests of the people and the State of South Dakota.”
In 2016, two years before Initiated Measure 24 was on the ballot, $12.5 million was contributed to the campaigns in support of or opposition to measures in South Dakota (out of about $1 billion nationwide). Out-of-state donors accounted for 75 percent ($9.4 million) of ballot measure campaign contributions in the state.
The South Dakota State Legislature considered legislation proposing a ban on out-of-state ballot measure campaign contributions in 2018. In 2017, bills to prohibit or restrict out-of-state spending on ballot measure campaigns were introduced but not approved in Arizona, North Dakota, and South Dakota. Rep. Mark Mickelson (R-13), the speaker of the South Dakota House of Representatives, sponsored 2017 and 2018 legislation to restrict out-of-state spending on ballot measure campaigns. Mickelson also sponsored the initiative petition drive and the support campaign for Measure 24.
Denver appears to have become the first city to decriminalize psilocybin mushrooms.
Although early reporting showed Denver Initiative 301 behind by several points, the final unofficial report on Wednesday revealed the measure has a lead of 50.6 percent to 49.4 percent, which is a margin of 1,979 votes out of a total of 176,661. Results could still change ahead of the deadline of May 16 for official results to be certified.
The citizen initiative would make the adult possession and use of psilocybin mushrooms the lowest law enforcement priority in Denver and prohibit the city from spending resources on enforcing penalties related to psilocybin mushrooms. Psilocybin was classified as a Schedule I drug by the U.S. Drug Enforcement Administration (DEA). At the state level, the use and possession of psilocybin were illegal and penalized, except in certain cases allowed under the state’s right-to-try law. Right-to-try laws aim to allow terminally ill patients to gain access to experimental drugs without the permission of the FDA. Colorado was the first state to adopt a right-to-try law in 2014.
The support campaign, Decriminalize Denver, collected 5,559 valid signatures for the initiative and submitted them in January 2019. They needed 4,726 signatures, which was 5 percent of the votes cast for mayoral candidates in the preceding mayoral election.
Also at Tuesday’s election, Denver voters defeated Initiative 300, which would have overturned Denver’s ban on camping in public areas and established rights to resting, sheltering oneself, eating or exchanging food, and occupying a legally parked vehicle in public outdoor areas.
According to preliminary vote counts, voters in Denver were rejecting a citizen initiative to allow resting, sheltering oneself, eating or exchanging food, and occupying one’s own car in outdoor public places without limits or penalties enforced by the city or county, law enforcement, or any other entity. The initiative was failing by 84 percent to 16 percent.
As of May 5, 2019, Initiated Ordinance 300 had drawn over $2.4 million in campaign contributions, with $2.35 million in donations reported by the No on 300 campaign.
Key endorsements of Initiative 300 included Carrie Roberts, former officer and sheriff’s deputy; the Colorado Department of Corrections; the ACLU of Colorado; the Democratic Party of Denver; and the National Coalition for the Homeless.
Key opponents of Initiative 300 included Larry Trujillo, former Denver fire chief; Wellington Webb, former mayor of Denver; the Denver Metro Chamber of Commerce; and the Denver Rescue Mission.
Denver voters also decided Initiative 301, a first-of-its-kind psilocybin mushroom decriminalization initiative. According to preliminary results, it was being defeated 54.4 percent to 45.6 percent.
On Tuesday, Columbus voters approved a total of five bond issues ranging from $50 million for neighborhood development projects to $425 million for public service, including roads, trash, equipment, real estate, and landscaping. In total, voters approved $1.03 billion in new bond debt. The bond issues will require an estimated 5.04 mills ($5.04 per $1,000 in assessed property value) in property tax to repay them.
As of April 25, 2019, Ballotpedia tracked 209 legislative proposals concerning ballot initiatives, veto referendums, referrals, local ballot measures, and recall in 31 states. Sixteen proposals had been approved in Arkansas, Montana, North Dakota, Ohio, Oklahoma, and Utah. Four of them were constitutional amendments requiring voter ratification in 2020. Two bills were approved by the Idaho State Legislature, but the governor vetoed them. Five citizen-initiated measures directly related to initiative and referendum laws were also filed in Florida, Missouri, and South Dakota.
The following list contains some highlights from our reporting.
The Idaho State Legislature passed, but the governor vetoed, a pair of bills that were designed to increase the state’s initiative signature requirement and its distribution requirement, reduce the allowed circulation period, enact a single-subject rule, and require a fiscal impact statement.
Arkansas legislators passed a bill to change the timeline for approval of the ballot title and popular name of citizen initiatives to after signatures are submitted and make other changes to the state’s initiative processes.
Arkansas legislators also sent an amendment to the 2020 ballot increasing the state’s distribution requirement, adding a supermajority vote requirement for the legislature to put amendments on the ballot, and making other changes to laws governing ballot measures.
Utah legislators approved five bills changing the initiative process. Changes included:
changing signature requirements,
requiring county clerks to post the names of those who sign an initiative petition on county websites,
requiring funding sources to be specified, and
establishing rolling signature submission deadlines.
Proposed laws concerning distribution requirements for signature gathering were introduced in Arizona, Arkansas, Idaho, Maine, Missouri, and Montana.
Laws concerning total signature requirements for initiatives and veto referendums or recalls were introduced in six states; in Idaho, Missouri, and Utah, the bills were designed to increase the total number of signatures required for citizen initiatives.
In Florida, Maine, and Massachusetts pay-per-signature bans were introduced.
In Maine and Oregon, bills to restrict legislative alteration of future citizen initiatives was introduced.
Legislation to increase the supermajority requirement or impose additional vote requirements was introduced in Florida, New Mexico, North Dakota, and Washington.
In Missouri, a citizen initiative was filed to prevent state residency requirements, pay-per-signature restrictions, and initiative filing fees. It would also require voter approval for any changes to the initiative and referendum process and establish a system for electronic signatures. Two bills designed to enact initiative filing fees, among other provisions, were introduced in Missouri’s 2019 legislative session.
In South Dakota, an initiative to roll back some changes made in 2018 was filed.