On January 8, 2019, Pennsylvania Gov. Tom Wolf (D) cited the state’s Environmental Rights Amendment (ERA), passed in 1971, in an executive order establishing the GreenGov Council, which was designed to work with state agencies to reduce greenhouse gas emissions. The governor’s order wasn’t the first time that he cited the ERA when explaining a decision. In June 2017, he vetoed a bill to preempt the local regulation of plastic bags, saying the bill was inconsistent with the ERA.
Voters approved the ERA as a ballot measure on May 18, 1971. The ERA provided for state constitutional rights to clean air; clean water; and the preservation of the natural, scenic, historic, and aesthetic values of the environment. The constitutional amendment also declared the state’s natural resources as “common property of all the people, including generations yet to come” and declared the state government as the trustee of the state’s natural resources.
Courts interpreted the ERA through a three-part balancing test until 2017. The test asked whether the benefits of an action outweighed any harm to the environment. In 2017, the Pennsylvania Supreme Court rejected this test, with the court’s opinion saying the test stripped the ERA of its meaning. Justice Christine Donohue (D), who wrote the opinion, said the ERA established a public trust, with natural resources as the trust corpus, the state as the trustee, and the people as the beneficiaries. Justices Max Baer (D) and Thomas Saylor (R) dissented, saying the court interpreted the ERA’s description of the state as a public trust through the lens of private trust law.
The Washington secretary of state’s office confirmed to Ballotpedia that sponsors of Initiative 1000 submitted signatures on January 4, 2019. I-1000 is an Initiative to the Legislature, a type of indirect initiated state statute, and maybe appear on the ballot for the election on November 5, 2019. Januar 4, 2019, was the deadline to submit signatures for 2019 Initiatives to the Legislature in Washington.
The measure would allow legislation and policies that use affirmative action without the use of quotas or preferential treatment. It would define affirmative action to mean the use of race, sex, ethnicity, national origin, age, disabilities, and military or veteran status as factors in determining education and employment opportunities. It would continue the state’s prohibition against preferential treatment based on certain characteristics and would define preferential treatment to mean “using race, sex, color, ethnicity, national origin, age, sexual orientation, the presence of any sensory, mental, or physical disability, and honorably discharged veteran or military status as the sole qualifying factor to select a lesser qualified candidate over a more qualified candidate.”
The measure would also create the Governor’s commission on diversity, equity, and inclusion, which would be responsible for ensuring compliance with the measure, and would be required to issue an annual report on the progress of state agencies in achieving the goals under the measure.
Washington voters approved I-200 on November 3, 1998. I-200, also an Initiative to the Legislature, banned preferential treatment and discrimination in public education, employment, and contracting based on “race, sex, color, ethnicity, or national origin.” I-1000 would also add the following characteristics to that list: “age, sexual orientation, the presence of any sensory, mental, or physical disability, or honorably discharged veteran or military status.”
Two initiatives, I-976 and I-1000, submitted signatures by the deadline on January 4, 2019. To qualify for the 2019 ballot, 269,622 valid signatures are required.
Of 47 total Initiatives to the Legislature filed with the Washington secretary of state’s office, Ballotpedia identified three other measures with active or potentially-active efforts. All other measures were either withdrawn or abandoned by sponsors. Signatures for those three measures, detailed below, were not submitted by the deadline.
Initiative 978, which proposed to raise the minimum age to purchase firearms or ammunition to 21, with exceptions
Initiative 1002, which proposed to prohibit marijuana cultivation, processing, and sales in residential zones; and
Initiative 1003, which proposed changing special education funding requirements.
Initiative to the Legislature is the name of indirect initiated state statutes in the state of Washington. Upon signature verification, these initiatives go before the Washington Legislature at its next regular legislative session in January. The legislature must take one of three actions:
The legislature can adopt the initiative as proposed, in which case it becomes law without a vote of the people.
The legislature can reject or refuse to act on the proposed initiative, in which case the initiative must be placed on the ballot at the next state general election.
The legislature can approve an alternative to the proposed initiative, in which case both the original proposal and the legislature’s alternative must be placed on the ballot at the next state general election
On January 3, 2019, Maine Gov. Janet Mills (D) signed an order to expand Medicaid, known as MaineCare in Maine, citing the approval of Question 2, a ballot initiative, in 2017.
Question 2 was the first citizen-initiated measure to expand Medicaid via Obamacare, expanding the program’s coverage to persons under the age of 65 and with incomes at or below 138 percent of the federal poverty line. In 2018, this amounted to an annual income of $16,753 for an individual or $34,638 for a household of four. Under Obamacare, the federal government was to provide 93 percent of funding for expanded coverage in 2019 and 90 percent in 2020 and thereafter.
Gov. Mills’ predecessor, Paul LePage (R), said his administration would not file an application with the federal government to expand Medicaid unless the legislature could fund expansion without tax increases or one-time funding mechanisms. In April 2018, several organizations that supported Question 2 sued the governor’s administration in a case that ended up going before the Maine Supreme Judicial Court. The state Supreme Judicial Court ordered Gov. LePage to submit an expansion plan to the federal government in June 2018. In August, Gov. LePage wrote a letter to U.S. Health and Human Services asking officials to reject the plan that Maine filed to expand Medicaid. In November 2018, the issue was back in court, with a superior court judge ruling that the governor’s actions went against the initiative’s objectives. The judge extended the deadline for implementation to February 1, 2018.
In 2018, voters in Idaho, Nebraska, and Utah also approved ballot initiatives to expand Medicaid. Voters in Montana rejected an initiative to re-approve Medicaid expansion with funding from a tobacco tax increase in 2018. As of January 2019, there are several states with the ballot initiative process that have not expanded Medicaid, including Missouri, Oklahoma, South Dakota, and Wyoming. Florida and Mississippi—two additional states that have not expanded Medicaid—allow initiated constitutional amendments but not initiated statutes.
Legislatures can refer measures, including constitutional amendments, state statutes, and bond issues, to the ballot for voter consideration. Amendments do not require a governor’s signature, but referred statutes and bond issues do, with exceptions in some states. Changes in the membership of state legislatures and governor’s offices, as a result of elections on November 6, 2018, could have an effect on how many and what measures are referred to the ballot by state legislatures in 2019. There are three states, in particular, that often feature legislative referrals on their odd-numbered year ballots and had partisan shifts in 2018 that could have an effect on the referral process.
Colorado: Democrats won the governor’s office and both legislative chambers in Colorado, making the state one of six to flip from a divided government to trifecta control in 2018. The change in partisan control wasn’t large enough to give Democrats the power to refer constitutional amendments without the support of some Republicans since constitutional amendments require a two-thirds vote of each legislative chamber. The change in partisan control could, however, affect proposals for revenue increases as set forth in Colorado’s Taxpayer Bill of Rights (TABOR). TABOR, passed as a ballot initiative in 1992, requires a simple majority vote in the state legislature and voter approval of tax increases that generate revenue in excess of a formula based on inflation and population growth. With Democrats in control of both chambers in 2019, measures to override the cap on revenue will be easier to refer to the ballot without the support of Republicans.
Maine: In 2019, Democrats control both chambers of the state legislature, as well as the governor’s office, making Maine a Democratic trifecta. Prior to 2019, Maine was a divided government. As Democrats have trifecta control in 2019, no legislative Republicans are needed to put statutes or bond issues before voters. Amendments to the Maine Constitution, however, still require support from some Republicans as Democrats do not control two-thirds of the seats in either legislative chamber.
Texas: Republicans kept trifecta control of Texas. However, Republicans lost seats in both chambers of the Texas State Legislature. Changes in the state Senate could have an effect on the prospects of constitutional amendments making the ballot since referral of a constitutional amendment requires a two-thirds vote in each chamber of the legislature. Republicans held 21 seats in the state Senate in 2018, which was enough to pass an amendment without support from Democrats. In 2019, Republicans hold 19 seats, meaning at least two Democrats are needed to pass a constitutional amendment in the state Senate.
The Michigan State Legislature approved and Gov. Rick Snyder (R) signed Michigan House Bill 6595 on December 28, 2018. HB 6595 created a distribution requirement for initiative signature petitions in Michigan limiting the number of signatures collected in any one congressional district to 15 percent of the total required. Michigan has 14 congressional districts. The requirement applies to both initiated constitutional amendments, initiated state statutes, and veto referendums. 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.
The bill was passed in the state House on December 12, 2018. It was amended and approved by the state Senate on December 21, 2018, in a vote of 26-to-12. In the Senate, 26 Republicans voted in favor of the bill, and all 11 Democrats along with one Republican, Tory Rocca, voted against the bill. The House concurred with the state Senate’s amended version on December 21, 2018, in a vote of 57-to-47. Among Republicans in the House, the bill was approved 56-to-5. Among Democrats, the bill was rejected 42-to-1.
Of the 26 states with some form of ballot initiative or veto referendum petition process at the statewide level, 16 other states besides Michigan have a distribution requirement. Of those 16 states, seven states base the distribution requirement on the state’s counties (Arkansas, Massachusetts, Maryland, Nebraska, New Mexico, Ohio, and Wyoming). In five states, it is calculated based on state legislative districts (Alaska, Colorado, Idaho, Montana, and Utah). In the other four states with a distribution requirement, it is based on U.S. congressional districts (Florida, Mississippi, Missouri, and Nevada). Washington, D.C., also has a distribution requirement based on city wards.
Most recently, Colorado voters approved a distribution requirement specifically for initiated constitutional amendments in 2016. It was put on their ballot through a successful initiative petition.
Legislators in Maine, Oklahoma, and South Dakota considered distribution requirements for citizen initiatives in 2018, but none of the proposals were enacted.