The Thicket at State Legislatures

Recalling a Little History

By Karen Shanton

Last night's episode of The Rachel Maddow Show included a segment on the history – and possible political future – of state legislative recall elections (segment starts at 2:00).

The segment was interesting but there are a couple of points in it that call out for clarification. Early on in the piece, Maddow suggests that recalls used to be deployed primarily against officials who were convicted of crimes and refused to leave office. But that's not really the case. As I mentioned in a previous post, the vast majority of legislative recalls are politically motivated. And that's been true almost since the beginning. Following California Senator Marshall Black's recall for embezzlement in 1913, there wasn't another misconduct recall until the mid-1980s. The intervening recalls were all political.

Maddow also suggests that recall elections tend to favor Republicans. Whether or not that's borne out in the future, it hasn't been the case historically. Republicans have faced significantly more recall elections than Democrats and survived a smaller percentage of the recalls they've faced. Of the 38 total legislative recall elections, 14 were against Democrats while 24 were against Republicans. Democrats survived eight of their recalls to the Republicans' nine, for respective win-loss records of 57-43 percent and 38-63 percent.

And the proportion of Republican recalls has actually increased in the past couple of years. Before the wave of recall elections in 2011, 12 recalls were aimed at Republicans while nine targeted Democrats. Since then, Republicans have fielded 12 recalls to the Democrats' five. That puts the pre-2011 D-R split at 43-57 percent and the 2011-2013 split at 29-71 percent.

History-Making Ballot Measures Pass Throughout Country

By Jon Kuhl

Voters made history in dramatic fashion, passing groundbreaking measures to legalize marijuana use and approve same-sex marriage on a day when 174 ballot measures were considered by the electorates of 38 states. That was the most since 2006 when 204 measures were on ballots.

In many states, ballots were quite long on Election Day, with voters in Alabama, California and Florida deciding on 11 statewide measures ranging  from implementation of the Affordable Care Act to same-sex marriage.

Of the 42 citizen initiatives on the ballot, voters approved 17. They rejected 23, and two remain too close to call at press time. In the 2000–2010 decade, voters approved 44.9% of all initiatives on the ballot. Of the 40 that are decided so far, 42.5% have been approved. That’s slightly below average and is subject to change as the results on these last two measures firm up.

"With a few notable exceptions, voters had a more negative view of ballot measures than usual this year,” said Jennie Drage Bowser, elections policy analyst for the National Conference of State Legislatures (NCSL).  “Two big exceptions were the issues of same-sex marriage, where voters in three states broke new ground by voting to legalize it, and drug policy, with Colorado and Washington voters agreeing to legalize marijuana.”

There were 12 popular referenda on the ballot this year, the highest number since 1920 when there were also 12. The popular referendum, available in 23 states, allows citizens to put a new law on hold and let voters decide its ultimate fate. Six of the 12 popular referenda were approved. Nearly all of the legislative moves vetoed by voters centered on labor – in Idaho, Michigan and South Dakota, attempts by the legislature to reduce the influence of teachers’ unions were rejected by voters. This includes a rejection of Michigan’s Emergency Manager Law, a provision that would have allowed state-appointed emergency managers to terminate public employee contracts and collective bargaining agreements.

Of the 115 measures referred by state legislatures, voters approved 87 and rejected 25. Three remain undecided. Between 2000 and 2010, voters approved 85.7% of legislative referenda on the ballot. Setting aside the three undecided measures, voters have approved 77.7% of the 112 legislative referenda we have results for at this time.

Voters rejected all three proposed constitutional conventions that were on ballots this Election Day.

How Key Issues Fared:

Same-Sex Marriage
Same-sex marriage initiatives were on the ballots in four states this election. While close, all three ballot measures in Maryland, Washington and Maine passed and a constitutional amendment in Minnesota defining marriage as a union between one man and one woman was defeated. Since 1998, all but one of the 35 statewide votes held on same-sex marriage were to restrict marriage between one man and one woman. The exception was Arizona, where voters rejected a ban on same-sex marriage in 2006, but later approved one in 2008. With 32 states having restricted marriage to opposite sex couples, this is a big change in direction.

Marijuana
There were six marijuana-related initiatives on ballots this year. 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. Voters in Massachusetts approved the legalization of medical marijuana but the Arkansas electorate turned down a similar bill. Arkansas would have been the first southern state to adopt medical marijuana. Montana voters rubber-stamped the legislature’s move to impose additional regulations on an existing medical marijuana program.

Affordable Care Act
Four out of five states voted approved legislative measures blocking implementation of the Affordable Care Act. These states included Alabama, Missouri, Montana and Wyoming. Going in the opposite direction, Florida voters voted against exempting their state from the Affordable Care Act. Voters in Arizona, Missouri, Ohio and Oklahoma have approved similar measures during the past two years; Colorado voters rejected one in 2010.

Education
The so-called DREAM Act passed in Maryland. The measure provides in-state tuition rates for unauthorized immigrants who graduate from a high school within the state. Idaho and South Dakota voters have rejected the legislatures’ attempts to reduce the influence of teachers’ unions. These questions came in the form of four popular referenda – voter attempts to veto actions by the legislature. Voters approved California Governor Brown’s Proposition 30, temporarily raising both state sales and income taxes for high-income earners. The revenue will help fund K-12 education and community colleges and balance the state budget. California rejected a competing measure, Proposition 38.

Physician Assisted Suicide
In Massachusetts, voters were asked whether a doctor can be legally allowed to prescribe medication, at a terminally ill patient's request, to end that patient's life. With 93% of precincts reporting, it’s still too close to call.

Legislatures and Lawmakers
The Nebraska Legislature voted down two measures, one allowing members to serve one extra term beyond the current limit of two consecutive four-year terms, and another increasing legislator compensation. Voters in Alabama on the other hand voted in favor of a measure establishing a basic compensation plan for the Legislature tied to the median household income in the state. The measure restricts the Alabama Legislature from voting to raise their own compensation.

Taxes
Voters rejected most proposed tax cuts, including a new state revenue limitation in Florida and a 2/3 legislative vote for tax increases in Michigan. Most of those that were approved were symbolic, such as a prohibitionon taxing real estate transfers in Oregon (where they do not currently tax real estate transfers).

Arizona voters rejected a measure making a temporary sales tax increase permanent. It funded various education programs. South Dakota voters rejected a sales tax increase that would have been split 50/50 between K-12 education and Medicaid. Missouri voters appear to be rejecting a tobacco increase that would have sent revenue to education, while Oregon voters approved the idea of redirecting corporate “kicker,” a refund for corporate income tax revenue that is collected in excess of a state-imposed cap, to education. Instead of sending that money back to corporate taxpayers, any future refunds will go toward education.

Voter ID
Minnesota defeated a constitutional amendment requiring voters to show photo identification when they go to the polls. This is a change in direction for this issue, with voters having approved voter ID measures in Mississippi  in 2011 and Oklahoma in 2010.

Gambling
Legislators in Maryland and Rhode Island decided to let citizens decide on whether to expand casinos, and in both instances the measures passed.  A measure was also on the ballot to amend the Oregon Constitution to allow the operation of privately-owned, non-tribal casinos within the state. The measure in Oregon failed.

Citizens United/Campaign Finance
Voters in Colorado and Montana approved symbolic measures encouraging their congressional delegations to support legislation overturning the Supreme Court’s campaign finance Citizens United v. Federal Elections Commission ruling.

Miscellaneous
California rejected the repeal of the death penalty and Proposition 37, which would have mandated labeling on genetically modified food.

Reporters: NCSL is your go-to Election Night Source for News and Analysis

By Mark Wolf

NCSL is your definitive source for results and what-does-this-mean analysis of state legislative and ballot measures. We'll be on duty throughout election night with experts available to answer media phone calls as 6,034 state legislative seats and 172 ballot issues will be decided.

For a concise roundup of NCSL's media resources on election night and beyond, click here.

We'll be anticipating your call and we'll keep a light on for you.

Last-minute Polls on Key Ballot Measures

By Jennie Drage Bowser

Polling data that have arrived late in the game indicates that voters are poised to make big statements on two social issues this year:  at least one state--Maine--looks likely to vote to legalize same-sex marriage on Tuesday, and Washington voters look likely to approve recreational marijuana use. Read more at NCSL's Prop 50 blog.

Spike in the Use of the Popular Referendum

By Jennie Drage Bowser

There are 12 popular referenda on the ballot in the November 6 election, three times the total of four we saw in 2010, and nearly three times the 2000-2010 average of 4.5. So what exactly is the popular referendum, and why are there so many of them this year? Learn the answers to these questions and more on Prop 50.

Citizens United and the States

by Karen Shanton and Wendy Underhill

As any swing state resident will tell you, 2012 has been a bumper year for campaign ads. Swing states across the country – from Colorado to Wisconsin – are seeing up to 10 times as many presidential ads this cycle as they did in 2008. This deluge of ads can be traced in part to Citizens United v. Federal Election Commission – the landmark 2010 U.S. Supreme Court decision that dramatically changed the rules about who can spend money on political races and how much they can spend. With its ruling in Citizens United, the high court struck down restrictions on independent political spending by corporations and unions.

Though the media tends to focus on Citizens United's role in presidential politics, the decision also set a new standard at the state level. Twenty-four states had statutory restrictions on independent spending by corporations and/or unions when the high court handed down its ruling. Since the ruling, many of these statutes have been found unconstitutional by the courts or repealed by state legislatures.

The University of Denver recently hosted a panel on the post-Citizens United campaign finance landscape, featuring former Federal Election Commission Chairman and Commissioner Trevor Potter, Americans for Campaign Finance Reform President and CEO Lawrence Noble and state campaign finance reform expert Mark Grueskin. After the panel, we caught up with Mark to pick his brain about the options available to states in the aftermath of Citizens United. If states still want to limit corporate and union spending, how can they do so?

He offered a number of suggestions. States can beef up disclosure and coordination rules. Following Iowa's lead, they can require groups to disclose more of their contributions more frequently. They can also tighten the regulations governing coordination between corporations or unions and political candidates.

Another option is to focus on enforcement of campaign finance laws. In almost every state, election administration is under the purview of party-affiliated officials – often the secretary of state. This has prompted concerns about uneven administration of election laws. Some advocate shifting to nonpartisan election administration to ensure that campaign finance laws are enforced fairly. For example, a group in Colorado tried to place a measure establishing a nonpartisan election administrator on the November ballot.

Coloradans will get to vote on a different approach instead. The state's ballot will include a measure directing its Congressional delegation to help overturn Citizens United. Similar resolutions have also been proposed in California, Hawaii, Idaho, Kentucky, New Jersey, Pennsylvania, Rhode Island, South Dakota and Washington.

For more information about the impact of the Citizens United ruling on the states, go to NCSL's Citizens United and the States webpage. There, you'll find detailed information about the laws affected by the ruling as well as the legislation that has been proposed in response to it.

Does Colorado Have a Republican Form of Government?

by Karen Shanton

Tucked into Article IV, §4 of the U.S. Constitution is the following promise: "The United States shall guarantee to every State in the Union a Republican Form of Government." This obscure and tricky-to-interpret promise – known as the Guarantee Clause – could upend a two-decade-old constitutional amendment in Colorado.

In 1992, Colorado voters added the Taxpayer's Bill of Rights (TABOR) to their state constitution via the initiative process. This amendment, which was sought by small government advocates as a check on government expansion, effectively shifted tax-levying powers from the state legislature to the electorate. Under TABOR, tax increases are limited to the rate of inflation plus population growth; heftier bumps must be okayed by voters.

TABOR's opponents argue that this shift has hamstrung Colorado's government. Without the ability to raise revenue, they argue, legislators can't fulfill their obligations to constituents – including a state constitutionally-mandated duty to provide a "thorough and uniform system of free public schools throughout the state."

This has prompted a bipartisan group of elected officials, educators and private citizens to bring suit against the measure. In their brief for Kerr v. Hickenlooper (2011), the plaintiffs contend that TABOR caused a "slow, inexorable slide into fiscal dysfunction" in the state. By preventing the legislature from functioning effectively, they argue, TABOR violates the Guarantee Clause and a closely-related clause in the Colorado Enabling Act of 1875. (The Colorado Enabling Act admitted Colorado to the Union on the condition that it form a constitution that was "republican in form.")

Photo credit: The Colorado Statesman, 5/27/2011

Historically, Guarantee Clause-based challenges have not fared well in the courts. In Luther v. Borden (1849), the U.S. Supreme Court dismissed a Guarantee Clause-based claim as a 'political question,' to be settled by Congress rather than the courts. With a few early exceptions [see, for example, Minor v. Happersett (1875)], this 'political question doctrine' has been the standard ever since. Justices routinely invoke the doctrine to rule Guarantee Clause cases 'nonjudiciable,' or not decidable by the courts.

Primary Results in California, Iowa, Montana, New Mexico and South Dakota

by Karl Kurtz

In addition to the closely watched and widely reported Wisconsin recall election, five other states had state legislative primary elections on Tuesday this week.

Over on our sister blog, Prop*50, Jennie Bowser reported on the apparent narrow defeat of the tobacco tax initiative in California and the surprisingly comfortable passage of Proposition 28, a modification of that state's legislative term limits. In state legislative races in the Golden State, no incumbents were defeated in the primary. The first trial of the state's top two (or "jungle") primary will result in either two Democrats or two Republicans on the ballot in nine of 53 congressional seats and 12 of 100 state legislative races in the November general election.

In Iowa, redistricting forced two Republican incumbents into running against each other in two races. Rep. Pat Grassley topped Rep. Annette Sweeney in one race and first-term Sen. Shawn Hammerlinck defeated veteran Sen. Jim Hahn in another. The only other incumbent who lost was two-term Rep. Erik Helland, who was defeated by challenger Jake Highfill. Republicans, who hope to gain unified control of state government by capturing the Senate this fall, had many more primary races than did the Democrats. Many of them involved ideological challenges between conservative and moderate Republicans. The Des Moines Register concluded:

Many of the Republican races revealed a divide within the party, where self-described conservatives took on candidates with establishment credentials whom the conservatives derided as RINOS: Republicans in Name Only.

The results: inconclusive. In seven House and Senate races featuring a more conservative candidate challenging an incumbent or establishment-backed opponent, four went to the moderates with support from Gov. Terry Branstad and others in the GOP hierarchy, while just three were won by socially conservative or tea party-aligned insurgents.

In Montana, one senator and three house members were defeated. The losers were Sen. Carmine Mowbray and Reps. Bob Wagner, Alan Hale and Tony Belcourt. Belcourt, however, lost by only three votes with a possible recount.

Recall Elections: Nuts and Bolts (Not Politics)

by Jennie Bowser and Wendy Underhill

Wisconsin’s recall election takes place tomorrow, deciding if Governor Scott Walker, Lieutenant Governor Rebecca Kleefisch and four Republican senators shall retain their offices or be replaced.  The politics of this debate are well covered by the national media. What we haven’t seen is coverage of how recall elections work.

NCSL‘s webpage, Recall of State Officials, does the job in detail. Here is a quick summary. 

In the 19 states that permit recall elections, if citizens can gather enough valid petition signatures in the time allotted, a recall election is scheduled.  The recall elections themselves fall into two general categories:

“Simultaneous” elections:  In six states, only one event--the recall election-- is needed to determine if the official should be recalled and if so, who will be the successor.  The ballots in two of these states, California and Colorado, include two questions: first, whether the official should be recalled, and second, which candidate should fill the slot.  The second question is moot if the answer to the first question is “no.”

In the other four states (Arkansas, Nevada, North Dakota and Wisconsin) the recall ballot offers simply a list of candidates for the office, which may or may not include the official who is the subject of the recall. In other words, a successful campaign to hold a recall in these states essentially triggers a special election for the office.

“Sequential” elections: In the remaining 13 states, the recall ballot contains only the question of whether the official should be recalled. If the majority votes "yes," the office is declared vacant and the office is filled as any other vacancy would be filled in that state. In Georgia, Illinois, Louisiana, Michigan, Minnesota, Montana, New Jersey, Oregon and Rhode Island, vacancies trigger a separate special election. In Alaska, Idaho, Kansas and Washington the office is filled by appointment.

For those who want more information, check out The Recall Elections Blog.

Elections About Elections

by Wendy Underhill

Talking about elections on elections is a little bit like having a national association of associations: it seems redundant but it makes sense when you think about it.

Voters in two states, Maine and Mississippi, approved ballot measures on Tuesday that dealt with elections regulations.

In Maine, voters vetoed this year’s bill that did away with the state's Election Day registration law. The veto means that Mainers can continue to register and vote on the same day, as they have done for 38 years.  Maine is one of eight states that offers same-day registration. 

In Mississippi, voters said “yes” to a Constitutional amendment to require government-issued photo ID at the polls. The amendment is broad and will require legislation to implement. Mississippi will become the 31^st state to require voter ID, and the 8^th with a “strict” requirement (one that has no alternative to showing the  required photo ID, such as signing an affidavit or using two non-photo IDs).

Mississippi will provide free IDs to those who do not have one and cannot afford one, and will exempt people living in nursing facilities.  The ID requirement will not apply to absentee ballots.

For more on ballot measures, such as Ohio’s vote on public employee bargaining rights (a newly enacted state law was overturned), Mississippi’s  proposed personhood amendment (defeated), and Washington’s vote to privatize liquor sales (approved)  and on recall elections and their results please see NCSL’s blog, Prop*50 or NCSL’s post-election ballot measures wrap-up.