Prop*50

Marijuana at the Ballot Box: Legalization and Medical Use

Colorado and Washington made drug-law history Tuesday when voters in both states approved measures to legalize and control recreational marijuana use.

Voters in Oregon rejected a similar measure.

Concerns were raised in both Washington and Colorado that the new laws would set up a confrontation with federal authorities. Federal law prohibits the use of marijuana, even for medicinal purposes.

Voters in Massachusetts approved the legalization of medical marijuana but the Arkansas electorate turned down a similar bill.

Montana voters were considering overturning strict restrictions on the use of medical marijuana.

Read more about the provisions of each measure at NCSL’s Ballot Measures Database.

StateVote is up and running!

The polls are closed in parts of Indiana and Kentucky, and are set to close in Florida, Georgia, South Carolina, Vermont, Virginia, and parts of New Hamphire in the next few minutes. We are hard at work, and we'll begin entering election results in our Ballot Measures Database as soon as they are available.  Stay tuned!

New polls on key measures

By Jennie Drage Bowser

Election day is right around the corner, with the first polling places opening in just over 24 hours. Let's take one last look at the polling data before the election results start trickling in.

Marriage

Thirty-two states have voted on same-sex marriage over the past decade and a half, and all 32 have voted against it. Two weeks ago, all signs were pointing toward a big change in this pattern this year. While some margins have tightened, it still looks likely that voters in at least one state will approve same-sex marriage on Tuesday. Passage appears near-certain in Washington, with smaller majorities favoring legalizing in Maine and Maryland. The Minnesota question remains in a statistical tie.

State	October Poll	September Poll
Maine	52% favor legalizing 45% oppose legalizing 3% undecided November 2 poll	57% favor legalizing 36% oppose legalizing 7% undecided September 30 poll
Maryland	55% favor legalizing 39% oppose legalizing 6% undecided October 29 poll	51% favor legalizing 43% oppose legalizing 6% undecided September 26 poll
Minnesota	47% oppose banning SS marriage 48% favor banning SS marriage 5% undecided October 28 poll	47% oppose banning SS marriage 49% favor banning SS marriage 4% undecided September 24 poll
Washington	58% favor legalizing 37% oppose legalizing 5% undecided November 1 poll	52% favor legalizing 40% oppose legalizing 8% undecided Mid-September poll

Drug Policy

Three states will vote on the sale, possession, and use of limited amounts of marijuana for anyone over the age of 21. Among the three, Washington voters are the most likely to approve legalization.

• Colorado:  50% yes / 44% no, according to a November 4 poll by the  Denver Post
• Oregon: 49% yes / 42% no, according to an October 29 poll by The Oregonian
• Washington: 55.4% yes / 37.6% no, according to a November 1 poll by the Seattle Post-Intelligencer
  

Spike in the use of the popular referendum

By Jennie Drage Bowser

First things first:  let's get the terminology straight. The popular referendum is a rather unique type of ballot measure. It arrives on the ballot through a petition process, like initiatives do. Like initiatives, this process is available in a limited number of states--24 states have the initiative; 23 have the popular referendum. Most states that have one process also have the other, but the list doesn't match up exactly. Let's look at the two processes separately in order to sort out the differences:

•   An initiative is a proposal for a new law or constitutional amendment. It's drafted by citizens, circulated for signatures, and eventually lands on the ballot if enough people sign the petition. If voters approve it, it becomes law or is added to the constitution. The legislature's approval is not necessary, and the governor does not have the ability to veto an initiative.
• A popular referendum is an opportunity for voters to veto something recently passed by the legislature. After the legislature passes something that somebody opposes, that person has an opportunity to mount a veto effort. Sometimes this effort is blocked by the use of an "emergency clause" in the legislation that causes it to take immediate effect. More often, there is a lag between the date the governor signs the bill and the date the new law actually takes effect. During this lag, opponents in 23 states can gather petition signatures to demand a popular vote on the bill. If enough petition signatures are gathered to land the bill on the ballot and voters approve it, the legislature's new law takes effect after the election. If voters reject it, it is vetoed and it does not take effect.

Unlike the initiative, the popular referendum is not an often-used device. Voters in some states seem to have forgotten its very existence, judging by how often they implement it. Here's a run-down of how many popular referenda we've seen on even-year general election ballots in recent elections:

Year	PR on the Ballot
1998	7
2000	2
2002	4
2004	2
2006	4
2008	2
2010	1
2012	12
AVERAGE	4.25

And if you leave out 2012 and consider just the numbers for 1998 - 2010, the aveage number of popular referenda on the ballot in a single election drops to 3.1.

Given this historical context, it's easy to see how this year's number stands out. The 12 popular referenda on the ballot this year is more than double the average over eight even-year elections. To see a list of all 12, visit NCSL's Ballot Measures Database.

So why are there so many popular referenda this year? Simply put, it's the stark political polarization that currently divides American government and its electorate, playing out on the ballot. The new laws that are contested via the popular referendum often lean heavily toward one end of the political spectrum or the other. This year, there are examples from both ends of the spectrum:

• In Maryland and Washington, opponents of same-sex marriage are trying to block new laws legalizing that practice.
• In Montana, medical marijuana supporters want to reverse a legislative move that weakens that state's medical marijuana law.
• In Michigan, the controversial Emergency Manager Law, which allows the state to appoint a manager to take over struggling local governments, is on the ballot.
• In Idaho and South Dakota, teacher unions are pushing back against changes to teacher labor laws.

So a popular referendum, then, represents a tug back in the game of political tug-of-war. Conservatives tug by passing a law reducing the influence of teacher unions; teachers tug back by trying to overturn the law. Liberal lawmakers tug by legalizing same-sex marriage; conservatives tug back by trying to stop the law in its tracks.

Will this unusually high use of the popular referendum continue? That's a good question and one worth monitoring over the next few election cycles. If the partisan divide remains as deep as it is, then it is likely that we'll continue to see elevated use of the process. It is also possible that successful use of the popular referendum this year -- that is, if many of these campaigns succeed in their goal of vetoing a new law -- may serve as an example that will lead others to consider the process as a useful tool in their political toolbox in the future.

Whatever the future holds for this often-neglected process, its heavy use this year certainly provides an engaging case study of direct democracy in action.

A watershed year for same-sex marriage?

By Jennie Drage Bowser

It looks likely that voters may say "yes" to same-sex marriage for almost the first time in U.S. history. I say "almost" because Arizona voters rejected a same-sex marriage ban back in 2006. That vote was widely regarded as an anomaly due to that particular campaign's attention on how the ban might affect elderly opposite-sex couples who chose not to marry. Arizona voters went on to approve a same-sex marriage ban in 2008.

This year's crop of same-sex marriage measures is different from the 33 measures that have appeared on the ballot since 1998 in two key ways:  the kinds of questions posed to voters are different, and the outcome may be dramatically different.

A different kind of question

Nearly all of the previous statewide popular votes on same-sex marriage have sought to ban the practice. They have generally been posed as amendments to state constitutions that would insert a definintion of marriage as "between one man and one woman," effectively prohibiting same-sex marriage. This year, voters in Maine will be asked to legalize same-sex marriage. That question has never been posed to a state's voters before.

The questions on the ballot in Maryland and Washington this November are popular referenda -- the are attempts by same-sex marriage opponents to veto bills recently passed by legislatures in those states that legalized the practice. This type of question has been on the ballot just once before -- in 2009, voters in Maine vetoed a new law legalizing same-sex marriage in that state. When the vote goes that way and voters veto a new bill, it never takes effect.

A different outcome

All signs point to a big change in voter attitudes toward same-sex marriage this year.

• In Maine, a late September poll showed voters favoring the legalization of same-sex marriage by a margin of 57 - 36. Seven percent remain undecided.
• In Maryland, a late September poll again shows voters in support of same-sex marriage, this time by 51 - 43 with six percent undecided. In this case, those undecided voters are great enough in number to potentially tip the election result to the "no" side.
• The attitudes of Minnesota are much less clear: a September 23 poll there found the chances of their proposal to ban same-sex marriage in a statistical tie at 49 percent in favor of the ban and 47 percent opposed. Past polls have revealed a similarly divided electorate.
• An early September poll in Washington indicates that support is at 52 - 40, with eight percent still undecided. Some voters there remain confused about exactly what a "yes" vote or a "no" vote means, a common problem with popular referenda. For the record, in the case of Referendum 74 in Washington (and also Queston 6 in Maryland), a "yes" vote is FOR same-sex marriage, and a "no" vote is AGAINST same-sex marriage.

If the predictions in any of these polls pan out on November 6, history will be made. Note that NCSL data on voter behavior supports the idea that Americans' attitudes toward same-sex marriage are changing, with a steady decline in support for same-sex marriage bans evident in election results nationwide since 2005.

Opponents of same-sex marriage, however, like to point out that early polls on California's Proposition 8 in 2008 showed similar results, yet that measure went on to fail on Election Day. A Wikipedia collection of pre-election polls confirms this - as early as October 31, 50 percent of voters opposed the same-sex marriage ban. The 2008 polling numbers in California moved around a lot more than the numbers in Maine, Maryland and Washington have this year though.

The bottom line:  you'll have to stay tuned for the final result, but signs point to voters in two more more states voting to legalize same-sex marriage this year.

Legalizing pot: what the polls say

 By Jennie Drage Bowser

Initiative proposals to legalize the sale and use of marijuana for anyone aged 21 or older are on the ballot in Colorado, Oregon and Washington this November 6. California voters rejected a similar proposal in November 2010 - that measure got a 46.5% "yes" vote. Current polling data shows that the proposals in Colorado and Washington stand a decent chance of passage on Election Day.

SurveyUSA released a poll on October 15 showing support for Colorado's Amendment 64 at 48 percent, with 43 percent opposed and nine percent undecided. That poll has a margin of error of +/-4%. Support is down from 51 percent in a poll conducted a month ago. According to the Denver Post, the swing is largely attributed to a change in attitudes among women. In the September poll, Amendment 64 held a 49 - 39 lead among women. Yesterday's poll, however, shows a a nine-point drop in support among women -- they are now at 48 - 40 opposed.

Two September polls in Washington show that state's marijuana legalization measure with a comfortable lead. A SurveyUSA poll put support at 57 percent, while an Elway poll put support at 50 percent. The Elway poll also showed a larger group of undecided voters:  12 percent, compared to nine percent in the SurveyUSA poll. An earlier Elway poll conducted in July found support at 46 percent.

Oregon's legalization measure appears to be polling weaker than its counterparts in Colorado and Washington. In a mid-September SurveyUSA poll, it was supported by 37 percent and opposed by 41 percent, with a 4.3 percent margin of error.  The Oregonian points out that the chief proponent of the Oregon proposal has been controversial in that state, and his measure is also pulling in less campaign money than the measures in the other two states.

In California, support for Proposition 19 hovered around the 50 percent mark in mid-September 2010,  and declined into the mid-40s throughout October. Given that pattern and the eventual  "no" vote on that measure on Election Day, Washington's marijuana legalization probably stands the best chance among the three of passing this year.

California: no on cigarette tax hike, yes to amending term limits

Californians rejected a proposed five-cent hike on each pack of cigarettes sold. The revenue would have funded research on cancer and other tobacco-related diseases. The vote runs somewhat contrary to historical trends:  since 1992, voters had approved seven of the 11 proposed tobacco tax hikes on statewide ballots. This is a striking exception from voter behavior on most proposed tax increases. Over the 1992-2011 period, voters just 32% of the 73 tax increases that appeared on statewide ballots, but they approved 63.6% of the proposed tobacco tax increases. Perhaps Californians just don't like to pay more for their tobacco though -- they rejected another proposed tobacco tax hike back in 2006. That was Prop. 86, and like yesterday's Prop. 29, the revenue would have funded health care. As of Wednesday morning, the "yes" vote on Prop. 29 was 49.2% (that's still unofficial, since provisional and absentee ballots remain to be counted).

Proposition 28 fared much better, garnering a 61.4% "yes" vote in unofficial results. This measure amends the state's strict term limits law for legislators. Currently, a person may serve up to six years in the Assembly and eight years in the Senate; after that, you're out for good. These "lifetime" term limits are the nation's strictest. Prop. 28 reduces the total number of years a person can serve in the Legislature from 14 to 12, but removes the chamber-specific limits. This would allow someone to serve the full 12 years in one chamber, or divide it among the two. It also removes a provision that had allowed some members to serve as long as 17 years by discounting partial terms from the limit.

The aim of the measure is to allow lawmakers to avoid the political musical chairs forced by the shorter, chamber-specific limits, and instead allow more time in a single office. The advantage is that with more time in office, lawmakers can develop deeper expertise on issues, state government, and the rules and procedures of the Legislature.

Voters rejected an initiative that was very similar to Prop. 28 back in 2008. The key difference was that the 2008 measure, Prop. 93, would have allowed members currently in office at the time it passed to serve up to 12 years in that chamber, regardless of previous service in the other chamber. This year's Prop. 28 applies only to members elected after the passage of the initiative.

Legislatures in Arkansas, Michigan and Missouri have considered legislation similar to Prop. 28, but to date, none of these measures has made its way to the ballot for voter approval.

What does the NC marriage vote mean for the future of same-sex marriage?

Last week, 61.1 percent of those voting in North Carolina's primary election agreed to add a provision to the state constitution stating that a marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in the state. North Carolina is the 30th state to add a definition of marriage to its state constitution, and Minnesota voters will weigh in on a similar question in November. Also in November, Maine voters will consider a citizen initiative that would legalize same-sex marriage in the state. The issue of marriage could also appear on ballots in Maryland, Nebraska, Ohio and Washington; deadlines are still in the future for those states and we won't know the status of petitions for certain until later this summer. [NCSL tracks statewide votes on the issues of marriage and civil unions here.]

To date, the only state that has rejected a same-sex marriage ban is Arizona. In 2006, voters rejected an initiated constitutional amendment that would have defined marriage as between one man and one woman. However, they went on to approve a similar question placed on the 2008 ballot. To date, no state's voters have approved the legalization of same-sex marriage; Maine voters will be the first to consider such a question this November.

Polling conducted by the Pew Forum on Religion and Public Life shows that American attitudes toward same-sex marriage have changed over the past decade: in a 2001 poll, just 35 percent of Americans favored allowing gays and lesbians to marry legally, while 57 percent opposed the idea. In Pew's most recent poll, conducted in April 2012, the numbers were flipped (although the margin is narrower): 47 percent favor legalizing same-sex marriage, while 43 percent oppose it.

NCSL data on voting patterns surrounding same-sex marriage reflect a similar trend:  the strength of the "yes" vote for banning same-sex marriage peaked in 2005, with a multi-state average of 73.1 percent of voters saying "yes" to a same-sex marriage ban. The "yes" vote has consistently lost strength since 2005, falling to 63.9 percent in 2006, 56.8 percent in 2008, and 52.9 percent in 2009.

North Carolina's 61.1 percent "yes" vote last week might appear to represent a reversal in this trend, but in fact it does not. It is important to note that support for banning same-sex marriage has been consistently stronger in the South than in the rest of the country, and in actuality, 61.1 percent is the lowest favorable vote for a same-sex marriage ban to ever occur in a southern state. The next-lowest was also the last vote on same-sex marriage held in a southern state:  in 2008, 61.9 percent of Florida voters favored banning same-sex marriage.

Year	Avg. “Yes” Vote for All States	"Yes" Vote in Southern States	"Yes" Vote in Non-Southern States
1998	68.1%	n/a	68.1%
2000	65.8%	n/a	65.8%
2002	66.9%	n/a	66.9%
2004	70.6%	74.1%	64.8%
2005	73.1%	76.3%	69.9%
2006	63.9%	74.4%	55.6%
2008	56.8%	61.9%	54.3%
2009	52.9%	n/a	52.9%
2012	61.1%*	61.1%*	n/a*

*NC only; MN is TBD

Source: National Conference of State Legislatures Ballot Measures Database

A poll conducted in Minnesota in late November 2011 indicates that the state could follow the trend of a declining "yes" vote for banning same-sex marriage:  48 percent supported such a ban, while 43 percent opposed it. An even more recent poll by SurveyUSA, conducted after President Obama announced his support for legalizing same-sex marriage, found that 52 percent of Minnesotans agreed with the President, while 42 percent opposed same-sex marriage. It's awfully early in the electoral process to place too much importance on either of these polls, but it's worth noting than early data indicate that Minnesota may continue the trend of declining voter support for banning same-sex marriage.

The survey data coming out of Maine falls in line with the pattern too. Rather than banning same-sex marriage, the question on Maine's November ballot flips the issue on its head by asking voters to approve a law that would allow same-sex couples to marry.  A late April poll conducted by the Maine People's Resource Center found that 52.8 percent of Maine voters favor legalizing same-sex marriage, while 39.9 percent oppose it (see slide #13 for the same-sex marriage data). If this polling data plays out on Election Day, Maine voters will throw the trend out the window entirely and become the first state where voters cast a favorable vote for legalizing same-sex marriage.

The bottom line:  Obviously we'll have to wait until Election Day to see how all of this really pans out, but it NCSL data on voter behavior and recent polling data from a number of sources agree:  voter attitudes toward same-sex marriage appear to be changing.