Voters decided 186 ballot propositions in 39 states in 2012, approving 63 percent of them. The electorate swung to the left on some issues, with potential breakthrough victories for advocates of marijuana legalization in Colorado and Washington, and same-sex marriage in Maine, Maryland and Washington. Other high-profile issues included taxes, the death penalty and illegal immigration.
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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 executive director 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).
Voters decided 186 ballot propositions in 39 states in 2012, with 174 propositions on ballots in November. The number of propositions was slightly more than the 183 in 2010 and 174 in 2008, but down from the 225 in 2006. Voters approved 63 percent of the measures they faced during the entire year, and 63 percent in November. See Table A for a summary, and Table B for a list of all propositions.
The busiest state was Alabama, with 12 proposed constitutional amendments for the year, all but one of which passed muster with voters. Florida had 11 propositions, California had 10, and Arizona, Louisiana and Oregon had nine propositions each. As is typical, most of the propositions—122—were placed on the ballot by legislatures. Sixty-one propositions were placed on the ballot by citizen petition, consisting of 48 initiatives and 13 referendums.1 Three measures were placed on the ballot by constitutional requirement. As usual, voters were much more skeptical toward initiatives than legislative propositions, approving only 42 percent of the year’s initiatives, compared to 73 percent of legislative measures.
Initiatives are the most visible type of ballot proposition and have the greatest impact. They are also the most contentious and attract the lion’s share of campaign contributions. Advocates see the initiative process as offering citizens an opportunity to wrest control of government from the special interests they believe dominate the legislature; while opponents see the process as a tool that increases the influence of wealthy and organized interest groups. South Dakota was the first state to adopt the process, in 1898, followed by Utah in 1900 and Oregon in 1902. By 1918, 19 states had adopted the process, and adoption has continued at the rate of about one state every 20 years. Mississippi was the last state to adopt the initiative process, in 1992, bringing the total number of states that allow initiatives to 24.2
The 48 initiatives in 2012 is an increase from 46 in 2010, but below the 68 in 2008 and 78 in 2006. The highest number of initiatives in a single year is 93 in 1996. Figure A shows the number of initiatives by decade, beginning in 1904 when the first initiatives appeared on the ballot in Oregon. Initiatives were common in the first four decades of the 20th century. Many of the initiatives were fueled by tensions between the new urban majorities in many states and the rural interests that controlled state legislatures. Initiative activity tailed off in the middle decades of the century, with only 89 measures from 1961 to 1970. Beginning in the late 1970s, initiative use picked up again, following California’s Proposition 13 in 1978 that set off a national tax revolt. Each successive decade set a new record for the number of initiatives, peaking with 389 from 1991 to 2000. Fifty-eight initiatives have reached the ballot so far in the current decade, hinting at a decline in initiative activity from recent levels, but still historically high.
In terms of individual states, Oregon remains the overall leader, having voted on 363 initiatives since adopting the process in 1902. California is a close second with 352 initiatives since adopting the process in 1911. Rounding out the top five are Colorado with 218, North Dakota with 183 and Arizona with 174. Initiative activity remains particularly high in the Western half of the country. East of the Mississippi River, Arkansas has voted on the most initiatives at 121.
Marijuana legalization may have been the biggest ballot proposition story of 2012. For the first time ever, two states approved propositions that legalized recreational use of marijuana. Colorado’s Amendment 64 was approved 55-45 and Washington’s I-502 was approved 56-44. A third legalization initiative, Oregon’s Measure 80, was rejected 47-53. The approval of these initiatives represents a breakthrough in a decades-long campaign by legalization advocates, and hints that the public may be rethinking how to approach the issue of drugs. In 2008, Massachusetts voters approved Question 2 that decriminalized small amounts of marijuana, making possession of less than one ounce subject only to a $100 fine. In 2010, California voters narrowly rejected (47-53) Proposition 19 that would have legalized personal use. Legalization initiatives in the more distant past had failed by large margins. Reformers hope that over time, the experience of Colorado and Washington will demonstrate that decriminalization does not increase crime and addiction, and that will encourage other states to follow suit. A wild card is what position federal authorities will take because federal law prohibits possession of marijuana.
Medical marijuana advocates scored victories in Massachusetts (Question 3) and Montana (IR-124), where voters approved laws enabling medical use of marijuana. Before Election Day, 17 states permitted medical marijuana. Arkansas voters narrowly rejected—49-51—Issue 5, which would have made Arkansas the first Southern state to permit medical marijuana.
Another big story from the election is same-sex marriage, as gay marriage advocates achieved their first victory at the polls after a long run of defeats across the country. Surveys suggest public opinion has shifted dramatically in support of gay marriage over the past decade, yet before Nov. 6, all state-level victories for same-sex marriage have come from courts or legislatures. Before 2012, citizens had voted to ban gay marriage in 30 of 31 proposition elections. See Table C for a complete list of same-sex marriage propositions.
On Nov. 6, Maine voters approved Question 1, an initiative legalizing gay marriage, by a 53-47 margin. Maryland and Washington voters affirmed same-sex marriage laws approved by their state legislatures, turning back referendums that would have repealed the laws—52-48 in Maryland and 54-46 in Washington. A third victory for gay rights occurred in Minnesota, where voters rejected Amendment 1, which would have banned same-sex marriage. Gay marriage proponents hope these are the breakthrough victories that trigger a wave of legalization across the country.
Spotlight on California
California, given its size and culture of citizen law-making, has given birth to some of the most famous and controversial ballot propositions and is always watched nationally for emerging trends. The state’s November 2012 ballot was filled with a wide variety of high-profile issues that attracted more than $390 million in campaign spending. Table D provides a summary of campaign contributions for the state’s 11 propositions.
Most attention focused on Propositions 30 and 38, both of which proposed temporary tax increases in order to relieve an imbalance between spending and revenue, and channel more money to education. Proposition 30, sponsored by Gov. Jerry Brown, proposed to increase the income tax on annual income higher than $250,000 for seven years and increase the sales tax by 0.25 percent for four years. The proposition was supported by public employee unions, who provided most of the funding and was opposed by taxpayer groups. Proposition 38, sponsored by lawyer and education activist Molly Munger, proposed to raise income taxes across the board for 12 years, dedicating 60 percent of the new revenue to education. Proposition 38 was opposed by Brown’s coalition, partly out of fear that it might confuse voters and lead to the defeat of both tax measures. Spending on the two propositions approached record levels, with more than $100 million raised for and against Prop 30, and $48 million (almost all from Munger) raised for and against Prop 38. Voters gave the governor a clear win, approving Prop 30 by a 55-45 margin and rejecting Prop 38 by a 29-71 margin.
Another fiercely contested measure was Proposition 32, which would have prohibited union dues from being used for political purposes without express approval of members, and prohibited individuals and organizations that do business with the state from contributing to campaigns. Public employee unions treated Prop 32 as a mortal threat, channeling about $70 million into the campaign against the measure; total spending on Prop 32 exceeded $100 million. Voters rejected the initiative by a 43-57 margin, a wider gap than for similar measures in 1998 and 2005—both of which were rejected by a 47-53 margin.
Another high-profile initiative was Proposition 34, which proposed to abolish capital punishment in the state. The initiative statute would have been retroactive, converting all existing death row sentences to life imprisonment without the possibility of parole. Proponents argued that taxpayers would save up to $100 million per year by converting death row inmates to lifetime terms. Voters rejected the proposition by a 48-52 margin. California is one of 33 states that currently permit capital punishment.
Proposition 37 proposed to require labels on food made from genetically modified organisms—also known as GMO. Proponents argued that the law gives consumers the right to know how their food has been produced, but would not restrict choices by banning the sale of GMO food. Early surveys showed strong support for the measure, but support eroded dramatically in the final stages of the campaign in the face of a strong campaign against the measure that raised $46 million, largely from grocers and food manufacturers. Opponents, including the American Medical Association, argued that there was no basis for stigmatizing GMO food and that doing so could even be harmful by stunting the development of GMO food.
The measure was opposed by most of the major newspapers in the state. Voters narrowly rejected the proposition by a 49-51 margin on Election Day. Proposition 39 proposed eliminating a loophole that allowed multistate firms to avoid taxes through certain accounting choices, estimated to cost the state about $1 billion per year in lost tax revenue. The proposition also dedicated $550 million annually for five years for clean energy projects. The measure was largely funded by hedge fund manager Tom Steyer, who contributed $32.3 million to the campaign in favor of the measure; there was virtually no organized opposition. Voters approved the proposition 61-39.
One of the ongoing concerns with the initiative process is the ability of wealthy individuals to single-handedly place an issue on the ballot and possibly “buy” favorable laws. Steyer’s victory provides some support for these concerns, but at the same time, other individuals who made significant contributions in 2012—Molly Munger in favor of Prop 38, George Joseph in favor of Prop 33 and Charles Munger in favor of Prop 32—failed to gain approval for their proposals.
Fiscal issues have always featured prominently in ballot propositions. Taxes remained the most prevalent issue in 2012, with more than 30 tax- or spending-related measures going before the voters. Most of the measures proposed small changes to the tax code, such as providing a property tax exemption to spouses of veterans who died in combat.
Election returns showed voters willing to consider new taxes, but for the most part they remained hesitant to tax themselves more. The most pro-tax result, as discussed above, was in California, where voters approved Proposition 30, which increased both income and sales taxes on a temporary basis. However, the main taxes in that proposition—on income—were targeted at those earning more than $250,000, so impacted only a tiny fraction of the population. A more expansive measure, Proposition 38, which would have increased income taxes for everyone in the state, was crushed at the polls. Also on the pro-tax side, Arkansas voters approved by a 58-42 margin a 0.5 percent sales tax increase to fund a $1.3 billion bond issue for roads and transportation projects.
On the anti-tax side, Arizona voters soundly rejected Proposition 204—by a 36-64 margin—that would have made permanent a temporary sales tax increase from 5.5 percent to 6.5 percent that is due to expire in 2013, and would have mandated annual increases in state education spending. South Dakota voters rejected Initiated Measure 15 by a 43-57 margin; it would have increased the state sales tax from 4 percent to 5 percent with revenue dedicated to education and health care. Missouri voters rejected Proposition B by a 49-51 margin; that proposal would have increased tobacco taxes by $1 per pack, with revenue dedicated to health education. Similarly, in June 2012, California voters rejected Proposition 29, which would have increased tobacco taxes by $1 per pack, with revenue dedicated to cancer research.
While voters seemed hesitant to raise taxes, they were not necessarily supportive of tax cuts. Oregon voters rejected by a 46-54 margin Measure 84, which would have eliminated estate/inheritance taxes. In June, North Dakota voters soundly rejected Initiated Constitutional Measure 2, which would have eliminated all property taxes and replaced them with a mix of income, sales and other taxes. Oklahoma voters did approve State Question 758, which limits growth of property taxes to 3 percent annually, down from the current limit of 5 percent annually.
Many states require voter approval before state bonds can be issued. Since the onset of the financial crisis and recession, legislators have been cautious about proposing new bond issues. In 2010, voters approved only $2 billion in new bonds, compared to $13 billion in 2008 and $43 billion in 2006. In 2012, legislatures in seven states placed 16 bond proposals before the voters, with a total authorization to borrow of $3.2 billion. The largest proposal, $1.3 billion for roads and highways, came from the relatively small state of Arkansas. The measure included a 0.5 percent sales tax increase to fund debt repayment. Other large proposals were New Jersey’s measure to borrow $750 million for colleges and Alaska’s Bonding Proposition A to borrow $453 million for transportation projects. On Nov. 6, voters approved 15 of 16 bond proposals, with only Maine’s Question 2 that proposed $11.3 million for higher education going down to defeat. The almost clean sweep for bond proposals suggests that voters may be more open to taking on debt, and may encourage legislatures to propose more borrowing in coming years.
Other Issues of Interest
Voters sent mixed messages about illegal immigrants. In 2011, Maryland’s legislature passed Senate Bill 167, which allowed illegal immigrants to pay in-state tuition at state universities if they attended high school in the state and their parents paid taxes. On November 6, the state’s voters resoundingly approved, by a 59-41 tally, Question 4, the so-called Dream Act Referendum, which gave voters the option to approve or repeal Senate Bill 167. But by an even larger margin—80-20, Montana voters approved LR-121, which denies state services to illegal immigrants. The law requires individuals who apply for state services to provide proof of citizenship. Legal challenges are expected to test the constitutionality of LR-121.
Gambling is another perennially popular topic for ballot propositions. There were 14 gambling-related measures during the period 2008–2011, and five more in 2012. Maryland voters narrowly approved Question 7, which allows a new casino in Prince George’s County. Rhode Island approved two ballot measures that permit slot parlors to become full service casinos in the town of Lincoln and city of Newport. Gaming interests suffered a setback in Oregon, where voters rejected two initiatives that would have allowed privately owned casinos. Two initiatives in Arkansas that would have allowed specific companies to operate casinos were on the ballot, but their petitions were ruled insufficient and their votes were not counted.
Massachusetts’ “Death with Dignity” Question 2, an initiative statute that would have allowed a terminally ill person to be given a lethal injection, was rejected in a close election by a 51-49 margin. Five states have held votes on physician-assisted suicide, beginning with Washington in 1991. Washington voters rejected the idea the first time around but approved it 2008. Oregon voters also legalized this form of suicide in 1994. California and Michigan voters rejected similar proposals in the 1990s.
Unions and union-related issues continue to be fought through ballot propositions, with 2012 providing wins and losses for both sides. Unions won big in California, where voters decisively rejected Proposition 32, which would have prohibited union dues from being used for political purposes without explicit authorization of members, prohibited union and corporate contributions to campaigns and prohibited government contractors from contributing to campaigns. Unions suffered a setback in Michigan, where voters rejected Proposal 12-2, which would have placed a right to collective bargaining in the state constitution. Unions also lost in Alabama, where voters approved Amendment 7, which requires secret ballots in union elections.
President Obama’s health care law, the Affordable Care Act, remains a source of controversy in the states. In previous years, four states—Arizona, Missouri, Ohio and Oklahoma—approved propositions declaring that no individual or business shall be compelled to participate in a health care system, which appears to be a partly symbolic judgment on the merits of Obamacare; while Colorado voters rejected such a proposal. Alabama, Montana and Wyoming voters in 2012 all approved measures declaring a right not to participate in Obamacare, while Florida voters narrowly rejected such a measure.
Many initiatives have proposed laws relating to abortion over the years. The most common subjects have involved parental notification or permission for a minor to receive an abortion and public funding for abortions. In 2012, Florida voters rejected Amendment 6, which would have prohibited public funding of abortion, while Montana voters approved LR-120, which requires parental notification at least 48 hours in advance of performing an abortion on a minor.
Oklahoma voters approved, by a 59-41 margin, State Question 759, which prohibits discrimination or preferable treatment based on race, sex, ethnicity and national origin. The measure undercuts some affirmative action programs in the state. Similar measures seeking a colorblind approach to race have passed in Arizona, California, Michigan, Nebraska and Washington.
1. This chapter uses referendums instead of referenda as the plural, following the Oxford English Dictionary and common practice.
2. For detailed information on initiative adoption and provisions and a discussion of pros and cons about the process, see 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)