McAnneny October Monthly Musings – Ballot Initiatives

Election season is upon us.  In a few short weeks, voters will go to the polls and vote for our next president and a slate of local officials.  They will also decide on five ballot initiatives.  It got me thinking about the whole ballot initiative process, why it is necessary, how you get a question on the ballot and what kind of impact ballot initiatives have on the legal and regulatory landscape in the Commonwealth. Below is a summary of the five questions that will appear on the ballot on November 5th.  But first, I wanted to provide you with an overview of the ballot initiative process, significant laws that have been passed using this process and why it has become a favored method for getting laws enacted.

The Ballot Initiative Process

Shout out to John Adams and his cronies for being very thoughtful and smart when setting up Massachusetts’s constitution, the oldest currently in effect in the world and the model for the United States Constitution.  Not only did they come up with checks and balances and the three branches of government, but they also contemplated how to ensure that the people had a voice if the legislature did not address their needs in a timely manner.  The Massachusetts Constitution’s preamble holds that whenever these great rights {life, liberty and the pursuit of happiness} are withheld, the people can take measures necessary to ensure their safety, prosperity, and happiness.

Article XVIII, Section II of the Constitution is one such measure.  It sets forth the requirements for getting a petition or question on the ballot. Initially, 10 qualified individuals must sign a ballot initiative petition and submit it to the Attorney General. The Attorney General then determines if the petition is in good order, not substantially the same as a ballot initiative voted on by the people in the past three years, not constitutionally prohibited, and only contains provisions that are mutually dependent or related. Upon approval, the Attorney General submits the question to the Secretary of the Commonwealth who provides the proper forms for obtaining more voter signatures. If sufficient signatures were obtained by the petitioners, the Secretary of the Commonwealth submits it to the legislature for consideration. 

The petition is assigned to the appropriate legislative committee, a public hearing is held, the committee deliberates and reports out the petition with its recommendation to support or oppose and the reasons why, in writing. Majority and minority reports signed by legislators are then issued. The legislature can opt to submit a substitute for the petition, and it will appear alongside the original proposal on the ballot. The legislature has to vote on the petition by the first Wednesday in June of an election year. If the legislature does not enact the petition, petitioners must obtain an additional 5,000 signatures of qualified voters.  If petitioners meet the signature requirement, the petition appears on the ballot in November.  If it is approved by at least 30 percent of the total voters voting in that election and a majority of the voters voting on that question, then it becomes law the later of 30 days from the date of the election or the date specified in the petition.

Proliferation of Petition Initiatives

In summary, trying to get a law passed by ballot initiative is not for the faint of heart, and that is by design. This arduous process culls the number of ballot initiatives put before voters by eliminating ones that are without serious support, are improperly drafted or otherwise defective.  

Despite these hurdles, ballot initiatives are standard fare.  While there is no one reason for making use of the petition process, I have a few ideas why it is so popular.  One reason is that the legislature has been far less active in passing legislation than it once was.  Frustration with the lack of legislative action on bills prompts supporters of legislative proposals to go directly to the voters.  In theory, the legislature is more deliberative and considers the broader public interests when determining whether a proposal makes sense.  In contrast, the ballot initiative process allows petitioners to make their case directly to the voting public, who are generally not as well-versed in the details and tend to vote in their self-interest.  Thus, a good ad campaign, savvy use of social media or a populist message can carry the day.  Another reason may be the number of registered voters participating in non-presidential elections has been declining for years.  Thus, a well-organized, well-funded minority can use the ballot to enact laws that would not pass the legislature.  Perhaps the most obvious reason is that the chances of winning are favorable.  There have been 183 petitions/referendums or non-binding questions posed to voters since 1924 and 104 have been approved.  That’s a 57 percent chance of success.

Significant Laws Passed by Ballot Initiative

The ballot initiative process has been used to effect change on tax and social policy, commerce, healthcare, the ballot initiative process itself, and to urge Congress to take action. Below is a sample of policy matters posed to voters through the initiative and referendum processes.

• Repeal of prohibition of alcohol (1930)
• Revisions to the procedure and signature requirements for initiatives and referendums (1950)
• Ratification of the Equal Rights Amendment to the U.S. Constitution (1972)
• Repeal of the Blue Laws, i.e. Allowing retail stores to open on Sundays (1976)
• Proposition 2 ½ limitation on property taxes (1980)
• Urging Congress to adopt a national healthcare program (1986)
• Establishing the same tax rate for interest and dividend income as for wages and salaries (1998)
• Establish a plan to lower the income tax on wages and salaries to 5 percent by tax year 2003 (2000)
• Decriminalizing Cannabis (2016)  
• Income Surtax or Fair Share Amendment (2022)

Petitions/Questions on the November 5th Ballot. These descriptions are largely based on the Secretary of the Commonwealth’s Voter Guidebook summaries, although they have been shortened in some instances for brevity.

Question 1: State Auditor’s Authority to Audit the Legislature. 

This proposed law would specify that the State Auditor has the authority to audit the legislature.

Proponents argue that this initiative will help the State Auditor’s office shine a bright light on how taxpayer dollars are spent to help increase transparency, accountability and accessibility for the people of Massachusetts.  

Opponents claim it would violate the separation of powers doctrine and make the State Auditor into a political actor, compromising her ability to conduct credible, independent, objective, and nonpartisan audits of state government departments and programs.

 A YES Vote gives the Auditor the authority to audit the legislature.

A NO Vote does not give the Auditor the authority to audit the legislature.

The legislature gave this ballot question an OUGHT NOT TO PASS, siding with the NOs.

Question 2: Elimination of MCAS as High School Graduation Requirement.  

This proposed law would eliminate the requirement that students pass Massachusetts Comprehensive Assessment System (MCAS) tests (or other statewide or district-wide assessments) in mathematics, science and technology, and English to earn a high school diploma. Instead, students would be required to complete coursework certified by the student’s district as demonstrating mastery of state academic standards in mathematics, science and technology, and English, as well as any additional areas determined by the Board of Elementary and Secondary Education.

Proponents argue that the MCAS is a one-size-fits-all exam that fails to consider other student achievement measures such as GPA, coursework, and teacher assessments in determining if students are allowed to graduate. They believe that replacing the MCAS graduation requirement with more comprehensive measures would allow teachers to stop teaching to a test and unburden students from a make-or-break standardized test. 

Opponents of Question 2 argue that it would remove our only statewide graduation standard, leaving Massachusetts with less rigorous high school graduation requirements than Mississippi and Alabama. They say eliminating MCAS is unfair to kids and will increase inequality because each school district could adopt its own standard, allowing students to graduate even if they haven’t learned the knowledge and skills they need to succeed. Granting diplomas to kids who aren’t ready to graduate is a disservice to them and diminishes the value of a high school diploma. IMCAS is a critical component of the 1993 Education Reform Act that catapulted Massachusetts K-12 education to among the best in the nation, and eliminating MCAS would undermine the state’s significant progress in providing a world-class education to all students.

A YES Vote eliminates passing the MCAS as a condition of graduation.

A NO Vote keeps the current requirement of passing MCAS as a condition of graduation

The legislature gave this ballot question an OUGHT NOT TO PASS, siding with the NOs.

Question 3: Unionization for Transportation Network Drivers

The proposed law would give transportation network drivers (“Drivers”) i.e. Uber and Lyft drivers, the right to form unions to negotiate wages, benefits and terms and conditions of work. To qualify to vote on unionization, a driver would have to complete a certain number of rides over the previous six months. Membership and collection of union dues would be voluntary. The proposed law defines the processes for forming a union and collective bargaining, unfair work practices for drivers and the process for dealing with violations. The Secretary of Labor would be given authority to review and approve agreements.

Proponents want to provide transportation network drivers the option to form unions to collectively bargain with transportation network companies regarding wages, benefits, and terms and conditions of work while providing the state with oversight authority of the union’s formation, and collective bargaining processes. This law is necessary because transportation network drivers are considered independent contractors, not employees, and do not work in a typical employer-employee relationship with set hours and schedules.

Opponents voice concern that this law creates a radical new labor category that is inconsistent with federal labor law and provides politicians with the right to set rules that will likely favor unions.  Question 3 is designed to help unions, not drivers, by allowing just 2 ½ percent of drivers to force unionization, leaving many drivers without a real voice.

Opponents also suggest it is unnecessary given that drivers in Massachusetts already receive generous compensation including (1) base pay of $32.50 per hour with yearly increases, (2) paid sick leave, (3) paid family medical leave, (4) domestic violence leave, (5) a healthcare stipend, (6) on-the-job injury insurance (7) anti-discrimination protections, and (8) anti-retaliation protections.

A YES Vote allows Uber and Lyft drivers to unionize.

A No Vote does not allow Uber and Lyft drivers to unionize.

The legislature gave this ballot question an OUGHT NOT TO PASS, siding with the NOs.

Question 4: Limited Legalization and Regulation of Certain Natural Psychedelic Substances

The proposed law would allow persons aged 21 and older to grow, possess, and use certain natural psychedelic substances in certain circumstances. Retail sale of natural psychedelic substances is prohibited but these substances could be purchased at an approved location for use under the supervision of a licensed facilitator.  

This law would allow persons aged 21 and older to grow and use these psychedelic substances at their home and give away excess to a person aged 21 or over within statutorily defined limits.

This proposed law would also provide for the regulation and taxation of these psychedelic substances, and the regulation and licensing of facilities.  A Natural Psychedelic Substances Commission would be created to administer the law governing the use and distribution of these substances. This proposed law would allow cities and towns to reasonably restrict the time, place, and manner of the operation of licensed facilities offering psychedelic substances, but not ban them.

Using psychedelic substances as permitted could not be a basis to deny a person medical care or public assistance, impose discipline by a professional licensing board, or enter adverse orders in child custody.

Property owners would be allowed to prohibit the use, display, growing, processing, or sale of these psychedelic substances on their premises and state and local governments could continue to restrict the possession and use of these psychedelic substances in public buildings or schools.

Proponents of Question 4 claim it would expand mental health options by providing safe, regulated access to promising natural psychedelic medicines for treatment-resistant PTSD, anxiety, and depression. Psychedelics would be available in approved therapeutic settings under the supervision of trained and licensed facilitators, not sold in stores to take home. For many people who are suffering, available daily medications and other standard treatments aren’t working. Over 6,000 veterans die by suicide annually, and countless more struggle with service-related trauma. Natural psychedelic medicine can also offer patients with a terminal diagnosis relief from end-of-life anxiety and help them find peace. 

Opponents of Question 4 are concerned about the numerous negative effects psychedelics decriminalization would have on society and the conflicting provisions in the proposed law. Question 4 would both create a system of state-licensed and taxed therapeutic facilities on the one hand and, on the other, decriminalize the cultivation, possession, and distribution of a variety of hallucinogenic and psychoactive substances. This proposed law allows for the home cultivation of psychedelics for personal consumption, which would likely result in a black market that undercuts the regulatory framework for licensed facilities. The widespread availability of psychedelics could have adverse results such as life-threatening cardiotoxicity, heart failure and the accidental consumption of edibles by children and pets.  Driving while under the influence could become more of a problem than it already is. Question 4 allows for-profit psychedelic centers that wouldn’t be required to be run by medical professionals, could not provide critical care during adverse reactions, and wouldn’t be prohibited from giving psychedelics to high-risk patients like those with schizophrenia, bipolar illness, and pregnant or breastfeeding women. 

A YES Vote legalizes psychedelics

A NO Vote does not legalize psychedelics

The legislature gave this ballot question an OUGHT NOT TO PASS, siding with the NOs.

Question 5: Minimum Wage for Tipped Workers. 

This proposed law would increase the minimum wage an employer must pay a tipped worker to $15 per hour, to be phased in over five years. Current law guarantees tipped workers minimum wage of $6.75 per hour, with tips making up the difference. If tips are insufficient, the employer must pay the tipped worker the difference between the tipped wage plus tips and the minimum wage. Under the proposed law, if an employer pays its workers an hourly wage that is at least the state minimum wage, the employer would be permitted to administer a “tip pool” that combines all the tips given by customers to tipped workers and distributes them among all the workers, including non-tipped workers.

Proponents state that Massachusetts tipped workers deserve the full minimum wage with tips on top, providing them with greater financial stability, predictability, and acknowledging workers’ skills and professionalism. Workers in seven other states earn a full wage plus tips. Proponents also suggest that this wage increase would reduce employee turnover and improve service quality. Many small businesses in Massachusetts already pay the full minimum wage plus tips.  Proponents argue further that big restaurant corporations are not paying their fair share and are forcing consumers to cover employees’ wages through tips. Tips should be a reward for good service, not a subsidy for low wages paid by large corporations.

Opponents indicate that this proposed law change is being pushed by a California group and not by Massachusetts tipped workers, who are not supportive of the change. Question 5 would reduce overall wages for servers, increase costs for restaurants and cause the cost of eating out to skyrocket, causing many neighborhood restaurants to close. Opponents do not think the change is necessary because state and federal law already guarantee them the $15 hourly minimum wage, with many tipped workers earning significantly more.  According to a recent survey of tipped workers, many make over $40/hr and 90 percent report making at least $20/hr, while 90 percent of survey respondents indicated that if tipped wages are eliminated, they will likely earn less. The survey also showed that 88 percent of tipped workers oppose ‘tip pools’, where tips are shared with non-service employees. Finally, Washington, DC implemented this change with catastrophic results – nearly 10 percent of tipped employees have lost or left their jobs, menu prices increased 20 percent ‘service fees’ were implemented, and a wave of restaurants closed. 

A YES Vote increased the minimum wage for tipped workers and allows tips to be pooled with non-tipped workers.

A NO Vote keeps the current law in place that allows for a tipped wage and requires pooling of tips among only tipped workers.

The legislature gave this ballot question an OUGHT NOT TO PASS, siding with the NOs.

You are now armed with information on the ballot questions and can cast an informed vote.  Not only will you be fulfilling your important civic duty, you will be exercising your rights and making your preference known on several key policy issues.