With Election Day 2022 just around the corner, attention has primarily been focused on control of Congress. Will the Democrats be able to keep the majority in both houses, or will the Republicans take over the House of Representatives, the Senate, or both? Voters will also be asked to make decisions regarding state elected officials, with many governors, attorneys general, and state legislators up for re-election. But even further down the ballot in some states, and often overlooked in election coverage, are ballot measures. These ballot measures—sometimes called initiatives, proposals, propositions, or amendments—give power to the voters to directly determine if a law will be enacted, if funds will be allocated, or if the state constitution will be amended. Depending on the state, ballot measures may originate with the state legislature and/or with voters, if they collect enough signatures.
This year, 36 states will feature at least one ballot measure for voters to decide on a variety of topics ranging from matters of public finance to eliminating involuntary servitude. After cataloguing and reviewing all of the current state ballot measures, some patterns begin to emerge regarding the issues to be considered, though there is less consensus on how states approach these policy areas. This blog will examine some of these trends in the issues addressed through ballot measures, how states are approaching them, and the choices voters will have to make.
Though the legalization of marijuana through the legislative process has become more common in recent years, ballot measures are still the predominant pathway to state legalization. Voters in five states—Arkansas, Maryland, Missouri, North Dakota, and South Dakota—will consider the issue of adult-use legalization on election day. All five states already have medical marijuana programs. The ballot measures originated through voter petitions in the majority of the states; only Maryland’s measure originated with the legislature as the state does not allow for voter initiative of legislation.
Voters in five states—Arkansas, Maryland, Missouri, North Dakota, and South Dakota—will consider the issue of adult-use legalization on election day.
This will be a second bite at the apple in South Dakota since, in 2021, a marijuana legalization ballot measure (Amendment A) was approved by voters (54 percent for and 46 percent against). The 2021 measure was, however, nullified by the South Dakota Supreme Court due to a violation of the requirement that proposed constitutional amendments address a single subject as the Amendment A language addressed recreational marijuana, medical marijuana, and hemp. The 2022 measure hopes to avoid a similar fate by not creating a commercial market for marijuana if legalized, instead leaving that up to the discretion of the legislature.
This will also be the second time that North Dakota voters will be asked to consider adult-use legalization; in 2018 a similar ballot measure was defeated by nearly 60 percent of voters. Arkansas’s initiative also had a bumpy road to appearing on the ballot, having to overcome legal challenges to the measure’s (proposed ballot title—the brief summary of the ballot measure that appears o) the ballot. If the ballot measures in the Dakotas and Missouri are successful, it would create additional inroads for adult-use marijuana in the Midwest where currently Illinois and Michigan are the only states with legal recreational cannabis.
One state not weighing in this November is Oklahoma. Though enough signatures were collected in the Sooner state to qualify for the November 8th election, delays in verifying the signatures resulted in missing the deadline for printing the ballots for this election. Instead, the ballot measure will appear during a special election in March 2023. Marijuana also continues to provide a blueprint for proponents of the legalization of magic mushrooms with Colorado voters deciding the fate of the Natural Medicine Health Act, which would legalize psilocybin and other natural psychedelic drugs.
Ballot initiatives regarding voting are something of a mixed bag in 2022, with some states expanding access and ease of voting while other states have proposed adding additional requirements to the process. Included in the former is Connecticut, which has a ballot measure that would amend the state constitution to permit the state legislature to implement early in-person voting. Connecticut is currently one of only five states that has no provisions for early in-person voting. Connecticut voters narrowly defeated a ballot measure in 2014 that would have both permitted early voting and expanded qualifications for absentee ballots; the 2022 measure excludes any changes to the absentee ballot process.
In a different tact, Proposal 2 in Michigan will, if approved, affect the voting process in several ways. These include: amending the state constitution to include a right to vote “without harassment, interference, or intimidation,” requiring that overseas or military ballots postmarked by election day are counted, implementing nine days of early in-person voting, and requiring state-funded absentee ballot drop boxes.
Arizona, Nebraska, and Ohio, on the other hand, all have ballot measures that theoretically will add hurdles to the exercise of the vote. Arizona’s Proposition 309 would require those voting by absentee ballot to add two new pieces of information, in addition to a signature, to validate their identity: their date of birth and their voter ID number. Voter ID numbers would be derived from a voter’s driver’s license, governmental ID, or social security number. Currently Arizona voters are permitted to provide two alternative non-photo forms of identification (ex: utility bill, voter registration card) when voting in lieu of a photo ID. If Proposition 309 passes, a photo ID would be the only approved form of identification to vote. Similarly, Nebraska’s Initiative 432 would amend the state constitution to require a valid photo ID in order to vote. Issue 2 in Ohio, meanwhile, would amend the state constitution to clarify that only US citizens are permitted to vote. The state constitution currently says that every citizen of the US is entitled to vote—wording that allowed at least one municipality in Ohio to attempt to extend the right to vote to noncitizens in local elections. Some critics of Issue 2 assert that the changes to the state constitution would also jeopardize the ability of 17-year-olds in Ohio to vote in primaries.
The recent US Supreme Court ruling in Dobbs v Jackson Women’s Health Organization returned the decision about legislating access to abortion to the states, so it is unsurprising that access to reproductive health appears on the ballot in several states. Proposition 1 in California, if passed, would amend the state constitution to enshrine a right to reproductive freedom, including a right to abortion and to choose or refuse contraception. Michigan’s Right to Reproductive Freedom Initiative would similarly grant a right to reproductive freedom in the state constitution, defined as the right to “make and carry out all decisions about pregnancy, such as prenatal care, childbirth, postpartum care, contraception, sterilization, abortion, miscarriage management, and infertility.” If passed, the Michigan initiative would overturn a 1931 state abortion ban. The Right to Personal Reproductive Autonomy Amendment in Vermont would likewise add language to the state constitution that “an individual’s right to personal reproductive autonomy is central to the liberty and dignity to determine one’s own life course and shall not be denied or infringed unless justified by a compelling State interest achieved by the least restrictive means.” The Vermont state legislature enacted legislation in 2019 to provide protection for abortion access at the same time that the ballot measure process was initiated. If the ballot measure is passed, it will codify the protection in the state constitution rather than only through legislation, making it harder to repeal.
Kentucky, however, will feature a ballot measure on Election Day that is on the other end of the spectrum. Amendment 2 would update the state constitution to make clear that the state doesn’t guarantee the right to abortion access and that the state has no obligation to provide any funding for abortions. While abortion is currently illegal in Kentucky except in cases where the pregnant person is at risk of death or serious permanent injury, passage of Amendment 2 would make legal challenges to the current near ban more difficult. And while state courts have ruled that abortion access is protected by the state constitution, Montana voters will decide the fate of Legislative Referendum 131 which states that “A born-alive infant, including an infant born in the course of an abortion, must be treated as a legal person under the laws of the state, with the same rights to medically appropriate and reasonable care and treatment.”
Ballot measures are one of the few instances where voters directly make the final decision, rather than delegating that authority to the people they elect, and can often provide a snapshot as to the various policy priorities of the states and how they differ.
Two states have ballot measures related to firearms that address the issue from different perspectives. Amendment 1 in Iowa would add a new section to the state constitution to expand gun rights protections: “the right of the people to keep and bear arms shall not be infringed. The sovereign state of Iowa affirms and recognizes this right to be a fundamental individual right. Any and all restrictions of this right shall be subject to strict scrutiny.” If enacted, this language would make future gun control laws in the state more difficult to pass, since under strict scrutiny—the highest level of scrutiny—the government would have to provide a compelling (or crucial) reason to restrict the right to bear arms and do so in the most narrowly tailored fashion. If Amendment 1 passes, only five states (California, Maryland, Minnesota, New Jersey, and New York) will have no state constitutional protections for the right to bear arms.
While Iowa voters may expand protections for gun owners, voters in Oregon have to decide if they want to implement additional gun control measures. Measure 114 would institute a “permit to purchase” system for firearms, requiring that those want to purchase guns must obtain a permit from the Department of the State Police after submitting photo ID, being fingerprinted, completing a safety course, passing a background check, and paying any necessary fees. Additionally, Measure 114 would restrict the sale, possession, manufacture, or transfer of magazines that hold more than ten rounds of ammunition. This isn’t the first time that Oregon has used ballot measures to implement gun control policies; in 2000, voters supported a measure (62 percent to 38 percent) providing for expanded background checks before firearms transfers at gun shows or by dealer.
Voters in three states will (somewhat ironically) be asked to consider ballot measures initiated by state legislatures that, if passed, will change the process for ballot measures. In some cases, these measures would make it harder for citizens to initiate ballot measures through petitioning or direct democracy. This keeps with recent trends of states challenging or restricting the initiative process.
Arizona has three measures addressing direct democracy that would amend the state constitution: Proposition 128 would permit the legislature to amend or repeal ballot initiatives that are approved by voters if any portion of said initiative is declared unconstitutional or illegal by the state or US Supreme Court. Proposition 129 in Arizona would “limit each initiative measure to a single subject and require that subject to be expressed in the title of the initiative measure.” Proponents of the single subject believe that this will make it easier for voters to understand what they are voting on, but opponents believe that what is consider a single subject can be subjective and used to disqualify or narrow initiatives (as discussed with respect to the 2021 South Dakota marijuana initiative above). And, Proposition 132 in Arizona would increase the threshold required to pass a ballot measure concerning the approval of taxes from a simple majority (50.01 percent) to a 60 percent supermajority—making it more challenging for such measures to pass. Issue 2 in Arkansas would also change the goalposts for electoral success, but would impact a broader array of initiatives. If passed, a supermajority would be required for the approval of constitutional amendments (initiated by the legislature or citizens) as well as for all citizen-initiated state statutes.
Elsewhere on 2022 ballots, Amendment GG in Colorado would require that initiatives that would change the state individual income tax rate to include a table that would illustrate how the proposed tax rate would impact those in different income groups. Additionally, Amendment 2 in Florida would abolish the state’s Constitutional Revision Commission, the body that meets every twenty years to propose ballot initiatives that would amend the state constitution. This would eliminate one pathway for initiatives to appear on the ballot, though others would be unaffected.
While the outcome of these ballot measures is still to be determined, examining what voters will decide on gives some clues to current and developing policy areas of interest. In the case of citizen-initiated ballot measures, voters may initiate them as a workaround for an unsupportive or unengaged state legislature. While the majority of the legislatively initiated ballot measures this year are going before the voters because they are required to do so, in at least one case—Colorado’s Amendment GG—the referral to the electorate was done to negate the need for the Governor’s signature of the legislation and make it veto-proof.
Increased activity in ballot measures on a certain topic may also be a result of federal action, whether that be a Supreme Court decision that strikes down federal policy and returns decision-making to the states or a delegation by Congress, or federal inaction, where states feel that they need to act. Ballot measures are one of the few instances where voters directly make the final decision, rather than delegating that authority to the people they elect, and can often provide a snapshot as to the various policy priorities of the states and how they differ.
ABOUT THE AUTHOR
Heather Trela is director of operations and fellow at the Rockefeller Institute of Government