2009 Ballot Propositions
Voters decided 32 ballot propositions in seven states in 2009, approving 22 of them. The highest profile measures concerned same-sex marriage and taxes. The number of measures and the approval rate was down modestly from recent odd-year elections. For the decade as a whole, initiative activity remained high in the 2000s, at about the same level as the historical peak of the 1990s.
Voters decided 32 state-level ballot propositions in 2009, 26 propositions Nov. 3 and six propositions from a May 19 special election in California (see Table A, Table B). Ballot proposition activity was down significantly from November 2008, when 153 measures went before the voters, but a dip is typical for odd-year elections. There were 34 measures in November 2007, 39 in November 2005 and 22 in November 2003
The propositions reached the ballot in several ways. Five were initiatives, new laws proposed by citizen groups and qualified for the ballot by petition.1 Three were referendums, proposals to repeal existing laws, also qualified by petition. Initiatives and referendums come to the ballot when citizen groups become dissatisfied with a state’s laws and seek to change them by a direct appeal to voters. The other 24 propositions were legislative measures placed on the ballot by a state’s legislature. As usual, most of the measures that went before the voters originated in the legislature. Most legislative measures are constitutional amendments—every state but Delaware requires voter approval to amend the constitution.
Initiatives are the most visible ballot propositions and have had the biggest impact on state policy historically. The initiative process allows ordinary citizens to propose new laws directly to their fellow citizens, without needing the approval of the legislature. South Dakota in 1898 was the first state to adopt the process, followed by Utah in 1900 and Oregon in 1902. By 1918, a total of 19 states had adopted the process and adoption has continued at the rate of about one state every 20 years since then. Mississippi was the latest adopter in 1992, bringing the total number of states that allow initiatives to 24.2
Initiative use has waxed and waned over time. With the closure of the decade of the 2000s, we can assess how initiative use in this decade compared to historical levels, and speculate about future trends. Figure A shows the number of initiatives by decade, beginning with the first initiatives in Oregon in 1904. Initiatives were used extensively in the second, third and fourth decades of the 20th century. Much of that activity arose from tensions between the new urban majorities in many states and the rural interests that controlled the legislature.3 The initiative process fell out of use in the middle decades of the century, with only 98 measures in the 1960s. Beginning in the 1970s, initiative use picked up again, triggered by California’s property tax-cutting Proposition 13 in 1978 that set off a national tax revolt. At first it was not clear if the burst of initiatives would be a passing fad, but with initiative use growing in each subsequent decade, it seems that something more fundamental is transpiring.
The total number of initiatives for the first decade of the 21st century was 374. This is slightly below the record number of 377 for the decade of the 1990s and represents the first decline in initiative use since the 1960s. Given the continued popularity of direct democracy worldwide, it seems unlikely that the process will significantly dwindle, but it may stabilize. Ballot initiatives are not going to replace representative government, but especially in the main initiative states (Arizona, California, Colorado, Oregon and Washington), citizen lawmaking is likely to remain a central part of the policy process.
Key Issue: Gay Rights
Gay rights remained the most visible issue on ballot propositions in 2009, with measures in Maine and Washington. The year’s highest-profile issue was Maine’s Question 1 that asked voters to repeal a May 2009 law legalizing same-sex marriage.
Traditional marriage supporters were victorious, by a 53-47 margin. Following California’s Proposition 8 in 2008, this marks the second successive repeal of a same-sex marriage law by the voters. Campaign spending on Question 1 exceeded an estimated $6.5 million, a large sum for the Pine Tree State.
Gay marriage first emerged as a controversial issue in the states in 1993 when the Hawaii Supreme Court ruled in Baehr v. Lewin that a refusal to grant same-sex marriage licenses was sex discrimination under the state constitution. The state’s legislators responded by placing a constitutional amendment on the ballot in 1998, authorizing the legislature to define marriage as solely between one man and one woman, and the voters approved the measure with 68 percent in favor. At about the same time, fearing similar judicial developments in their states, conservative activists placed “defense of marriage” measures on the ballot in Alaska (1998), California (2000), Nebraska (2000) and Nevada (2000), all of which were approved.
The issue seemed to be fading away until May 2004, when the Massachusetts Supreme Judicial Court ruled in Goodridge v. Department of Public Health that the state constitution contained a right to gay marriage. This ruling set off a pitched battle across the nation as marriage traditionalists in 24 states rushed to make gay marriage unconstitutional to head off similar rulings in their states. A little more than half of these amendments were proposed and placed on the ballot by state legislatures; the rest were proposed and qualified by citizen groups using the initiative process. So far the battle has been a rout, with 33 of 34 propositions banning gay marriage passing (Table C), including California’s high-profile Proposition 8 in 2008. The only ban that failed, in Arizona in 2006, was approved in slightly modified form two years later. So far, the only victories for gay marriage supporters have come from courts and legislatures—same-sex marriage proponents have yet to achieve a breakthrough victory in a popular election.
The bad news for gay marriage supporters was partially offset by election results in the state of Washington. There, marriage traditionalists petitioned to repeal a state law granting same-sex domestic partners essentially the same rights as married spouses, but voters rejected the repeal (R-71), supporting the existing law by a 53-47 margin. Supporters of the new law spent about $2 million during the campaign, compared to about $500,000 by opponents.
An interesting side skirmish in the campaign developed over the issue of whether the names of people who signed petitions calling for a vote were confidential. Proponents of the referendum argued that those who signed might be exposed to harassment, giving as example the experience of some contributors who supported California’s Proposition 8. Opponents of the referendum argued that the names should be released as part of the state’s public records disclosure laws. This case and an ongoing case in California concerning Proposition 8 raise issues about the trade-off between confidentiality and the public’s right to know. Those issues are headed for the U.S. Supreme Court and could have important ramifications on the conduct of ballot propositions campaigns.
Key Issue: Tax limits
Tax limits have been a mainstay of ballot propositions throughout the century-long history of citizen law-making, with some prominent victories for limits as well as some prominent losses. In 2009, voters in Maine and Washington decisively rejected propositions that would have limited the growth of taxes and government spending by state and local governments, and would have required voter approval of future tax increases.
Maine’s Question 4, dubbed TABOR II, was rejected 40-60. The proposition was modeled after Colorado’s controversial Taxpayer Bill of Rights measure approved in 1992. Question 4 would have restricted the growth of government spending to the rate of inflation plus the growth rate of population (the state’s current spending limit is linked to income growth, which typically allows a faster growth of spending). Revenue collected in excess of the limit would have been channeled to a rainy day fund (20 percent) and returned to citizens in the form of tax relief (80 percent). Maine voters rejected a similar measure in 2006 with 54 percent against.
Washington’s I-1033, also a TABOR-type measure, was rejected by a lopsided margin, 42-58. It would have limited the growth of state and local government spending to the rate of inflation plus population growth, and required voter approval for tax increases. Revenue collected in excess of the limit was to have been returned in the form of property tax relief. Opposition to I-1033 was led by public employee groups, but also included Microsoft Corporation and the Seattle Chamber of Commerce. The initiative’s supporters were heavily outspent by opponents, with $3.5 million spent in the no campaign compared to $600,000 in the yes campaign.
Rejection of spending limits in Maine and Washington hint that voters are willing to pay more taxes and may not be extremely concerned with growth in government spending, despite a huge expansion in federal spending over the past year. Voters in Maine, New Jersey and Ohio also approved bond propositions, which were also popular in November 2008. The electorate continues to be willing to borrow despite the ongoing economic recession.
2. For detailed information on initiative adoption and provisions, see the appendixes of John G. Matsusaka, For the Many or the Few: The Initiative, Public Policy, and American Democracy (University of Chicago Press, 2004) and M. Dane Waters, Initiative and Referendum Almanac (Carolina Academic Press, 2003).
About the author
John G. Matsusaka is the Charles F. Sexton Chair in American Enterprise in the Marshall School of Business, Gould School of Law and Department of Political Science, and president of the Initiative & Referendum Institute, all at the University of Southern California. He is the author of For the Many or the Few: The Initiative, Public Policy, and American Democracy (University of Chicago Press, 2004).