Guest editorial: Initiative and referendum process in Massachusetts

Editor’s Note: This is the third in a series of guest editorials running between now and July 4, our nation’s Independence Day. These essays were solicited by the Franklin County League of Women Voters for The Recorder from several especially knowledgeable and experienced members of our community, about issues as important to America today as when our country was born with our forefather’s Declaration of Independence.

A previous LWVFC column mentions the ballot questions from last year’s election. Have you ever wondered how those questions got on the ballot? The League of Women Voters of Massachusetts (LWVMA) did, and this winter we conducted a study, focusing on the three types of statewide citizen-initiated ballot questions: initiative petition for a law, initiative petition for a Constitutional amendment, and referendum petition on an existing law.

Essentially, the ballot question process is a way for citizens to initiate new laws, amend the constitution, or modify existing laws, made possible by an amendment to the Massachusetts Constitution (Article XLVIII) in 1918.

In the United States today, 26 states, including Massachusetts, have an initiative and/or referendum process. The process is common west of the Mississippi (18 of 24 states), and much less common east of the Mississippi (8 of 26), with Maine being the only other state in New England with the process. No federal law governs the initiative and referendum process. It is governed by state law, and every state is different.

Signature collection rules, certification, and accounting are the same for all citizen-initiated statewide ballot questions: proponents must collect signatures equaling at least 3% of voters in the previous gubernatorial election (64,750 valid signatures were required for 2018 ballot questions), with no more than 25% coming from any single county, by early December prior to the November state election.

Assuming the petition meets all these requirements, what happens next? Massachusetts has what is referred to as an “indirect” initiative process, meaning the Legislature has an opportunity to take action in the process. The Legislature has until May to act. The Legislature can’t change the petition, but it can approve it, or pass a new law that deals with the same subject as the petition but is not identical. In this case, the proponents of the ballot have to decide whether to continue on or withdraw their petition.

For example, in late June 2018, the Legislature passed and the Governor signed the so-called “Grand Bargain” to address issues in three initiative petitions. The bill proponents decided to withdraw their petitions and accept the legislative compromise, which gave some but not all they had proposed (permanent sales tax holiday, but not a reduction in the sales tax that was in the initiative; increases to the minimum wage; and paid family and medical leave).

If they do not withdraw their petition, or the Legislature does nothing with the petition, the petitioners then must collect a second round of signatures by July to get their initiative on the ballot in November. These signatures must equal an additional one-half of 1% of voters (10,792 for 2018 ballot), with no more than 25% coming from any single county. These must be additional signers, meaning that voters who signed the initiative petition in the fall are not eligible to sign again.

Legalization of marijuana passed in 2016 by way of an initiative petition. The patient-to-nurse limits ballot question that failed in 2018 was also an initiative petition.

Unlike the other citizen-initiated types of petition, the referendum petition signature collection is time-dependent on the passage of the law. Referendum petitions to repeal a law are filed within 30 days after the law is enacted. The transgender anti-discrimination law repeal that failed in 2018 was a referendum.

The process for a citizen-initiated constitutional amendment starts out the same as that of an initiative petition for a law, but is then accomplished through what is called the Constitutional Convention. If at least 25% of senators and representatives (50 of the 200 legislators: 40 senators and 160 representatives), in two successive conventions, vote to allow the amendment to appear on the ballot, it is placed on the next general election ballot.

For example, in September 2001, an initiative petition for a constitutional amendment limiting marriage to heterosexuals went to a Constitutional Convention. The Senate President moved for adjournment without considering the amendment. This motion passed 137 to 53, and the initiative never reached the ballot. Since 1919, only three citizen-initiated constitutional amendments have made it to the ballot (2 passed).

As you can see, the progression from petition to ballot is extensive, and this doesn’t even touch on the influence of ballot question campaign money, or the role of the Attorney General in the process. For more information and to read the LWVMA position on the initiative and referendum process in Massachusetts, visit the LWVMA website at: https://lwvma.org/the-lwvma-study-on-the-massachusetts-ballot-question-process/.

The League of Women Voters of Franklin County and the League of Women Voters of MA are the authors of this piece.