2002 Initiatives and Referenda By M. Dane Waters

Transcription

1 2002 Initiatives and Referenda By M. Dane Waters INITIATIVES AND REFERENDA When it comes to voters reactions to initiatives and referenda on the ballot in 2002, cautious was the word of the day. Amidst concerns about war, terrorism and the economy, the voters once again defied party labeling and voted their conscience when it came to ballot measures. In a time of great uncertainty, voters picked through the list of statewide ballot measures and systematically made their feelings known, while at the same time not revealing whether their underlying principles lean more liberal or conservative. The great race to categorize the voters political beliefs will once again have to wait for another election day. On Election Day 2002, voters cast their ballots on 202 statewide ballot measures in 40 states and approved approximately 62 percent of them. Fifty-three were placed on the ballot by the people and 149 were placed on the ballot by state legislatures. 1 Of the measures placed on the ballot by citizens, 47 percent were approved. This number is a little higher than the 100-year average of 41 percent. Voters continued the trend of passing measures placed on the ballot by state legislatures at a higher percentage than citizen measures, adopting almost 66 percent of them. Arizona and New Mexico hold the top honor of having the most prolific ballot on Election Day both with 14 ballot measures. Oregon had the most issues from the people (commonly referred to as initiatives), with seven though this was a 60 percent decrease from Three of the top five most prolific ballots New Mexico, Louisiana and Georgia were comprised of issues from lawmakers and not the people. There was an average of 2.04 initiatives per state and an average of 2.94 legislative referenda per state on the ballot this election. 2 This election was noteworthy for many reasons, but one that stands out is the fact that there were 30 percent fewer initiatives on the ballot than in 2000 and the lowest number since The decrease in the number of initiatives making the ballot can be attributed to five distinct factors. First, increased regulation of the initiative process has made it more difficult to use. Second, increased judicial action striking down initiatives on technical grounds has caused concern among potential users of the initiative process and has made them reluctant to use it. Third, many potential users of the process were waiting to see what the new makeup of the state legislatures and Congress would be after redistricting and the midterm elections, hoping the new legislators would be more receptive to their reforms and they would not have to turn to the initiative process. Fourth, some potential initiative supporters chose not to place initiatives on the ballot after the September 11 terrorist attacks, feeling that this was not the time to challenge the government. Finally, due to the weak economy, potential initiative proponents did not have the funds necessary to use the initiative process. However, even though the citizens placed fewer issues on the ballot, state legislators placed 10 percent more issues on the ballot than they did in The reason for this is hard to say, but one could argue that the increase was due to state lawmakers desire to increase state revenues through new bonds or the expansion of lottery and gaming. Top Initiatives in 2002: How Did They Fare? Drug Policy Reform Coming into this election cycle, drug policy reformers had enjoyed a tremendous winning record, but this year they suffered a clean sweep of defeats on their statewide initiatives (although they did win local measures in Washington, D.C. and San Francisco). Ohio voters rejected Issue One, which would have allowed for treatment instead of incarceration for nonviolent drug offenders, while Nevadans voted down Question 9, which would have legalized marijuana for recreational purposes. In one of the more surprising outcomes, Arizona voters rejected Proposition 203, which would have legalized medical marijuana. In South Dakota, two other closely watched drugrelated initiatives were defeated: Amendment A, which would have allowed a criminal defendant to argue the merits of the law and be found innocent because the jury found the law itself to be bad public policy, and Measure 1, which would have legalized industrial hemp. Many people have argued that the reason this election cycle proved more difficult for the drug policy reform movement than previous elections was due to the extraordinary step by John Walter, President Bush s drug policy advisor, and Asa Hutchison, then- The Council of State Governments 281

2 director of the Drug Enforcement Administration, in actively campaigning against these measures a move that many believe will lead to litigation against the federal government s involvement in political campaigns. According to Bill Zimmerman, executive director of the Campaign for New Drug Policies, Of the four drug reform initiatives we were directly involved with in the last election, one won and three lost. While this represents a lower level of success than we realized in the three previous election cycles, we see it as a bump in the road, not a change of direction. Over the past six years, our initiatives have moved drug policy reform from the political netherworld to the political mainstream. Drug policy reforms are being debated by elected officials and legislatures across the country. We entered this cycle with a 17-2 record on drug policy reform initiatives. We come out of it with an 18-5 record. There is little doubt that the drug policy reform movement will continue to use the initiative process in its quest to raise awareness of the reforms its members are seeking. Animal Rights Animal rights advocates fared well on Election Day. The animal protection movement emerged in the 1990s as a dominant issue at the ballot box, and this election cycle was no exception. Voters in Oklahoma approved an initiative outlawing cockfighting, while voters in Florida voted to ban the use of gestation crates for pregnant pigs. On the losing side was an Arkansas initiative that would have made cruelty to animals a Class D felony instead of the current Class A misdemeanor. The Florida win will help energize the movement to ban gestation crates across the country, potentially leading to more ballot measures on this issue in the near future. Voters again have demonstrated that they care about the protection of animals, whether the abuse involves intensive confinement on factory farms or staged animal fights, said Wayne Pacelle, senior vice president of the Humane Society of the United States. Education Another favorite at the ballot box has been education reform, and this election cycle continued the trend. According to Kristina Wilfore of the progressive Ballot Initiative Strategy Center, Ballot measure results from this election clearly demonstrated voters strong support for public education. Five initiatives are especially noteworthy. In California, Arnold Swartzenegger s Proposition 49 won handily. The initiative will increase state grant funds available for before- and after-school programs. This impressive victory will no doubt give the Terminator the political prestige he wanted to launch his rumored gubernatorial campaign. In Colorado and Massachusetts, voters decided on initiatives that would require children to be taught by using English in the classroom. These two initiatives followed wins on this issue in California and Arizona. The surprising thing about these two initiatives is where they won and lost. This issue, which is usually characterized as a conservative issue, won handily in the liberal state of Massachusetts (Question 2) but lost in conservative Colorado (Amendment 31). This just goes to show that voters can t be expected to vote straight party ideology when voting on ballot measures. Floridians dealt with two high-profile education initiatives. Measure 8, which will require that every four-year-old child in Florida be offered a highquality pre-kindergarten learning opportunity won by a narrow margin, as did Measure 9. That measure, which will provide funding for sufficient classrooms so that there be a maximum number of students in public school classes, had become a big issue in the governor s race, with challenger Bill McBride throwing his strong support behind it and incumbent Jeb Bush opposed. Election Reform One of the biggest losers on Election Day was election reform. In California and Colorado, voters rejected initiatives that would have established what is commonly referred to as same-day voter registration. Three other Colorado initiatives are also worth noting. Amendment 29, which would have changed the way candidates are placed on the primary ballot by requiring nominating petitions instead of relying on nominating conventions, was defeated. So was Amendment 28, which would have allowed for mail ballot elections. Amendment 27, designed to reduce the amount of money that individuals and political committees can contribute, passed. According to Pete Maysmith, executive director of Colorado Common Cause, Voters in Colorado for the second time in six years overwhelmingly supported a strong, comprehensive campaign finance reform measure championed by the League of Women Voters and Colorado Common Cause. Although many politicians are reluctant to admit it, there can be no doubt Coloradoans believe their campaign finance system is corrupted by big money and they want to see it fixed. One of the more telling signs of the political feelings of the electorate was exemplified in Idaho, with voters giving a controversial endorsement to a measure that would abolish term limits. However, this victory for state lawmakers is being overshadowed 282 The Book of the States 2003

3 by persistent stories of voter confusion over which way to vote on the ballot measure. According to Stacie Rumenap, executive director of U.S. Term Limits, The narrow defeat in Idaho showed that the popularity of state legislative term limits is not always enough to sustain support for term limits on hundreds of state and local offices, from sheriff to school board members, as was the case in the Idaho term limits law. Additionally, there was a great deal of confusion over how to vote to keep term limits in place. However, it s clear that when voters are asked only about legislative limits, support remains strong. After being outspent by political elites 11 to one earlier this year, voters in California soundly defeated a measure intended to extend legislative limits. Across the county, the numbers are clear: The majority of voters continue to back legislative term limits every chance they get. Gaming Several ballot measures dealing with expanding gaming or creating a lottery were put before the voters. As usual, the results were a mixed bag. Measures from the state legislatures will be discussed below, but as far as initiatives were concerned, Arizona was the hotbed, with three initiatives that dealt with gaming. Propositions 200 and 202, which dealt with expanding Indian gaming and dictating where and how the proceeds should be divided, had mixed results: Proposition 200 was soundly defeated, while Proposition 202 passed. Proposition 201, which would have allowed for non-tribal gaming in the state, was defeated overwhelmingly. In Idaho, voters decided to allow video gaming on Indian land and North Dakota voters decided to direct the legislative assembly to authorize the state to join a multistate lottery. Taxes Since California s Proposition 13 cut property taxes in 1978, tax reformers have used the initiative process religiously. This election cycle was no different. However, it wasn t exactly a banner year for tax-cut advocates at the statewide level. Massachusetts voters defeated Question 1, which would have abolished their state income tax, while voters in Arkansas defeated an initiative that would have abolished certain taxes on food and medicine. But tax cutters weren t without a few victories at the local level. According to John Berthoud, president of the National Taxpayers Union, Taxpayers were heartened by a number of strong victories at the local level in One of the most important was a resounding defeat of a proposed half-cent sales tax hike in Northern Virginia and Hampton Roads, Virginia for more transportation spending. Proponents of higher taxes pulled out all the stops. Developers poured in money and outspent taxpayer groups by at least 10 to one. Politicians of both parties (wellfunded by the same developers) lobbied hard for the measure. Still, taxpayers told them all that enough is enough. Regardless of these outcomes at the statewide level, tax cutters will be back in future elections to carry on the legacy of Howard Jarvis and California s Proposition 13. Top 2002 Legislative Referenda: How Did They Fare? Revenue Enhancers Over the last couple of election cycles, and especially since the fiscal impact of September 11, state legislators have been looking at ways to increase state revenues. At least 40 states faced budget deficits for fiscal year 2003, and in this election cycle lawmakers were hoping the voters would ease their pain and give them more money to spend. In short, the verdict is mixed. In Tennessee, where lawmakers were hoping to establish a lottery (to escape having to implement an income tax), voters helped lawmakers by passing Amendment A-1. In Montana, South Carolina and Louisiana, where voters were asked to give lawmakers greater latitude in investing in the stock market, the voters for the most part said no. With the exception of one measure in South Carolina, the voters told lawmakers that it was too risky to invest public funds in the stock market. As for bonds, California voters adopted the largest bond measure in the state s history. Proposition 47 will raise $13 billion for an across-the-board overhaul of the state s public school facilities. Other bond measures across the country also seemed to fare well. According to the National Conference of State Legislatures, 21 of the 24 statewide bond issues passed, providing $22 billion dollars in funding for everything from mortgage assistance for veterans, to transportation, education and environmental projects. Initiative and Referendum Reform As the Initiative & Referendum Institute has highlighted over the last few years, state legislators have become more and more hostile to the initiative process. This election only emphasized the point, with votes on amendments to make the process more difficult in Oklahoma and Montana. In Oklahoma, voters defeated a measure placed on the ballot by lawmakers that would have increased by almost 100 percent the number of signatures needed to propose a constitutional initiative pertaining to hunting, fishing or trapping. In Montana, voters adopted ballot The Council of State Governments 283

4 measures that will increase the distribution requirement for both constitutional and statutory initiatives. Honorable Mentions Voters also showed their resolve to maintain the status quo with the defeat of two high-profile measures in Oregon Measure 23, which called for universal health care, and Measure 27, which called for the labeling of genetically modified foods. These defeats do not necessarily mean that voters don t support these reforms it s just that given the uncertainty of the times, they feel these items can be addressed in the future. Voters also spoke out on smoking. In Florida, voters adopted Amendment 6, which will ban smoking in all public places. In Missouri, voters chose not to increase cigarette taxes, while in Arizona the voters decided to make the cigarette tax $1.18 a pack more than double the current rate. As for social policy, not much was on the ballot this election cycle, except for banning same-sex marriage in Nevada. Nevadans voted once again to adopt the ban (amendments must be voted on twice before becoming law). What Do the Results Mean? Primarily, faced with uncertain economic times and the possibility of war, voters chose to be cautious and maintain the status quo though with one obvious exception: education reform. The reason for this, many argue, is that during these tough fiscal times voters feel that big-ticket road projects and other costly items not related to education can wait until economic times are better and they are more comfortable approving them. They also feel that items that would cause significant changes in their daily lives like drug reform, labeling genetically modified food and establishing universal health care can wait as well. However, they made it clear that what can t wait is the education of their kids. Ignoring the humdrum factual analysis of Election Day 2002, what did we really learn about the voter? Simply that the line between conservatives and liberals is blurring. There will always be the 10 percent hard-core conservatives and liberals at both ends of the political spectrum who not only vote the party line on candidates but also vote strict political conviction on ballot measures. But the other 80 percent of the electorate are clearly thumbing their noses at those who want to label them. These voters may feel some loyalty to a specific party, but when it comes to ballot measures, they know that their vote will have an almost instantaneous impact on their daily lives and so are far less likely to vote strictly on party conviction. Though the repercussions of their vote for a specific candidate may be unknown for a long period of time, they can see clearly the impact of their vote on ballot measures almost immediately. Maybe this is why voters love ballot measures so much: They know their vote will have an immediate impact good or bad. But what impact will these ballot measures have on government? Some, like those that gave governments more latitude in spending money, will help them deal with the tough fiscal crisis they face. Others that dedicated revenue for specific reforms, like education, will force governments to take a closer look at their budgets and make some tough choices in order to fund the citizens mandate. However, there is no doubt that some governments will choose to ignore the people s mandates for various reasons in most cases because they will argue that implementing the ballot measure will cause undue fiscal problems for the state. It will be interesting to see how the voters respond when this happens. Overall, as with every election cycle in which ballot measures are voted on, the impact on citizens and government will be substantial and long-lasting. How Does this Election Compare to Others? Since the first statewide initiative appeared on Oregon s ballot in 1904, citizens in the 24 states with the initiative process have placed approximately 2,051 statewide initiatives on the ballot and have only adopted 841 (41 percent). Even though 24 states have the statewide initiative process, over 60 percent of all initiative activity has taken place in just six states: Arizona, California, Colorado, North Dakota, Oregon and Washington. 3 Additionally, it is important to note that very few initiatives actually make it to the ballot. In California, according to political scientist Dave McCuan, only 26 percent of all initiatives filed have made it to the ballot and only 8 percent of those filed actually were adopted by the voters. During the 2000 election cycle, over 350 initiatives were filed in the 24 initiative states and 76 made the ballot about 22 percent. 4 The initiative process has been through periods of tremendous use, as well as periods in which it was rarely used. Initiative usage steadily declined from its peak of 293 from to its low of 87 in Many factors contributed to this, but the distraction of two World Wars, the Great Depression and the Korean War are largely responsible. However, in 1978, with the passage of California s Proposition 13, people began to realize the power of 284 The Book of the States 2003

5 Table A: Decades With the Lowest Number of Statewide Initiatives on the Ballot Decade Number proposed Number adopted Passage rate (percent) Table B: Decades With the Highest Number of Statewide Initiatives on the Ballot Decade Number proposed Number adopted Passage rate (percent) Table C: States With the Highest Number of Statewide Initiatives on the Ballot ( ) State Number proposed Number adopted Passage rate (percent) Oregon California Colorado North Dakota Arizona the initiative process once again and its use began to climb. Two of the three most prolific decades of initiative use have occurred since (271 initiatives) and (389 initiatives). 5 In 1996, considered by scholars to be the high water mark for the use of the initiative process, citizens placed 93 initiatives on statewide ballots and adopted 44 (47 percent). In contrast, that year, state legislators in those same 24 states adopted over 14,000 laws and resolutions. 6 Since 1996, the number of initiatives actually making the ballot has remained relatively constant, if not fallen. In 1998, only 61 statewide initiatives actually made the ballot the lowest number in a decade. In 2000 a total of 76 initiatives found their way to statewide ballots. Although more than in 1998, this is 17 less than appeared on the 1996 ballot and is consistent with the decade average of 73 initiatives per election cycle. These numbers do not support the accusation that there has been a drastic increase in initiative usage over the last decade. In 2001, there were only four initiatives on statewide ballots. This number is actually two fewer than the number of initiatives that appeared on the 1991 general election ballot. The reason for the low number in odd-numbered election years is that the constitutions of only five states allow initiatives in the INITIATIVES AND REFERENDA odd years: Colorado, Maine, Mississippi, Ohio and Washington. The 2002 election cycle continues to show that the use of the initiative process is declining perhaps showing the success that legislatures have had in restricting the public s use of the initiative process. On Election Day 2002, voters decided the outcome of 202 statewide ballot measures in 40 states. Of those, 49 were initiatives a 30 percent decrease from the 2000 general election and the lowest number since Whether or not this trend will continue is hard to predict. The history of the initiative process has shown that there are high-use periods as well as low-use periods. However, one thing is certain: If state lawmakers continue to put more restrictions on the people s ability to use the initiative process, there is no doubt that fewer initiatives will make the ballot. Notes 1 This analysis was prepared by M. Dane Waters, president of the nonprofit and nonpartisan Initiative & Referendum Institute. Nothing in this analysis should be construed as an endorsement of any of the ballot measures mentioned; it is intended for educational purposes only. 2 Only 24 states have the statewide initiative process and 50 states have the legislative referendum process. 3 Based on independent research conducted by the Initiative & Referendum Institute. A complete listing of all the initiatives that appeared on the ballot can be found in the Institute s historical database at 4 Ibid. 5 Ibid. 6 Numbers are approximate due to the fact that a comprehensive list of laws passed by state legislatures is unavailable. The numbers in this section were arrived at using information provided by the National Conference of State Legislatures. About the Author M. Dane Waters is the founder, president and co-chairman of the Initiative & Referendum Institute, a nonprofit educational and research organization dedicated to the study of the initiative and referendum process. He has lectured widely in the United States and abroad and has written and edited numerous articles and books on the history of the initiative and referendum process. The Council of State Governments 285

6 Table D: Statewide Ballot Measures 2002 The top five most prolific ballots in November 2002 by total number of ballot measures State... Initiatives Popular Referenda Legislative Referenda Total Number of Statewide Ballot Measures Arizona New Mexico Louisiana Oregon Georgia The rest of the country Florida Colorado Nevada Oklahoma California Montana Utah Alaska Missouri Rhode Island Washington Arkansas Michigan South Dakota Virginia Wyoming Alabama Hawaii Maine Maryland Massachusetts North Dakota Idaho Kentucky Nebraska New Hampshire South Carolina Tennessee West Virginia Mississippi North Carolina Ohio Pennsylvania Texas Vermont Connecticut Delaware Illinois Indiana Iowa Kansas Minnesota New Jersey New York Wisconsin The top five most prolific ballots November 2002 by total number of initiatives Oregon Colorado Florida Arizona California The top five most prolific ballots November 2002 by total number of legislative referendum New Mexico Louisiana Georgia Arizona Oklahoma Source: The Initiative and Referendum Institute. 286 The Book of the States 2003