Direct Democracy: Avoiding issue management pain at the 2014 ballot box

By Sarah E. Hunt, Esq., Manager, State Issues

Will your issue soon be the subject of an expensive general election ballot measure campaign? Taking the direct democracy temperature now in the states is one important way to avoid unpleasant surprises late next summer. The 2014 ballot measure landscape is rapidly taking shape (find out more about measures in each state). Chief election officers in nine states have certified at least seventeen questions to 2014 statewide election ballots as of late summer 2013. Understanding the initiative, referendum, and referral process and knowing what has already made it onto the ballot in the states will give your state government affairs program a huge advantage.

Referral, initiative and referendum are the three legal mechanisms that allow citizens to directly vote on legislation. An issue-oriented fight at the ballot box could be headed your way in almost any state. Legislative bodies can exercise the referral power in all fifty states. Referral allows legislatures to put controversial matters to a vote of the people. Twenty four states also allow the initiative or referendum processes. These two processes are citizen-initiated and either establish new laws or alter or repeal legislatively-approved law, respectively.

While business interests are frequently on the defensive side of direct democracy, it is too often an overlooked proactive tool. Advocates turn to citizen-initiated ballot measures when legislative efforts fail to produce favorable results in spite of popular support. Tort reform, for example, is one area where the medical and business communities have gone to the voters successfully to achieve policy outcomes such as caps on punitive damages or limits on medical malpractice awards.

Direct democracy efforts can take place after or alongside a state’s legislative session, the latter being a tactic that leverages electoral and grassroots threats to sway legislative or gubernatorial action. An interest group can put pressure on stakeholders to negotiate a legislative compromise by filing a ballot measure that has the potential to enact a policy change if the legislature does not resolve an issue.

It is unsurprising, this far from Election Day 2014, that the majority of the seventeen measures certified to 2014 ballots are legislative referrals. More than fifty measures, however, are working their way toward ballot certification in at least twelve states. Initiative and referendum backers in most jurisdictions still have many months to collect the tens of thousands of signatures necessary to achieve a coveted slot on the 2014 general election ballot.

Thus far, the 2014 ballot measures in play feature issues we have come to recognize: abortion, same-sex marriage and tax reform to name a few. Judicial selection ballot measures are on the uptick this cycle. Advocates for marijuana and gambling legalization, eminent domain reform, and the right to purchase private health insurance have filed relatively few measures compared to previous cycles.

Trending 2014 ballot measure subjects of note include:

Fiscal and Tax, including rainy day fund changes, surtaxes for education, prohibitions of income and payroll tax – ballot measures certified in Tennessee, Nevada, California, and Michigan; potential ballot measures in Alaska, Arizona, Arkansas, California, Missouri, Oregon, and Nevada.

Election law reforms, including term limits, voter registration, voter ID, direct democracy reform – ballot measures certified in Montana, Arkansas, and California; potential ballot measures in Arizona, Arkansas, Kansas, North Dakota, Oregon, Rhode Island, and Wisconsin.

Judicial reform, particularly judicial selection – ballot measure certified to ballot in Tennessee; potential ballot measures in Indiana, Iowa, Nevada, and Pennsylvania.

Healthcare, Eminent Domain, GMOs, and Renewable Energy are all subjects of potential measures in at least one state, including an effort to repeal Medicaid Expansion legislation in Arizona.

New ballot measures remain a possibility up until relevant filing deadlines. Ballot qualifying deadlines vary from state to state, but most are in the spring or summer of 2014. Well-funded ballot measure campaigns can work their way onto a ballot even when they start the process late. An interest group with enough cash to hire an army of circulators can rapidly collect the needed signatures to make the ballot. Oregon casino investors got Measure 75 (2010) on the ballot by pouring $1 million dollars into a last-minute signature gathering campaign that yielded over 300,000 signatures in the spring and early summer of 2010. It is therefore advisable to monitor initiative and referendum filings until a cycle is complete.

Vigilant issue managers will identify possible ballot measures of interest now to avoid unpleasant surprises in July and August of 2014, the timeframe when most states finalize their general election ballot measures.

Find out exactly what measures have been filed, and keep tabs on upcoming ballot measure filings, by viewing our most recent FactPad Insert: State Ballot Measures 2014. This FactPad Insert, which is usable both online and in the FactPad itself (find a complete list of FactPad Inserts and learn more about FactPads) provides links to official websites on which ballot measures are published in every state and in many cases, the process by which a measures can land on the ballot. For additional information about ballot measures in the states, contact: seh@stateside.com.

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Sarah E. Hunt is Manager, State Issues at Stateside Associates. Prior to joining Stateside, she was part of boutique political law practice that advised clients in all aspects of direct democracy, from compliance to campaign management. The veteran of dozens of ballot measure campaigns, she is co-author of several state and local ballot measures, including Oregon’s Ballot Measure 73. She is a member of the Oregon and the District of Columbia bars.

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