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Election Law @ Moritz

Election Law @ Moritz


The 2010 Statewide Ballot Issues

The November election had 160 statewide ballot measures before voters. There were numerous local measures on ballots as well, of course. The results are not all in (nine are too close to call), but there is much to say about those results that are final.

First, the decline of the political party “wedge” measure and the upsurge of the legislative referrals. Of the 160 measures, state legislatures referred 113 (up from 2008) to the voters, and citizens initiated 42 (down from 2008). Excluding those too close to call, voters approved 73 percent of the referenda and only 43 percent of the initiatives.

Legislative referenda can be either voluntary( the legislature puts the measure to voters), or involuntary( the citizens force a vote on a legislative act without the legislature’s consent). Many were voluntary. Legislatures were asking citizens to approve structural changes in the election process or government offices. Few referenda gave citizens the final say on difficult social questions.

There were, in addition to the normal statewide bonding proposals, measures to rename the office of secretary of state, abolish the office of treasurer, change the due date for initiatives, change the signatures need for initiatives, structure redistricting procedures, set state legislature size, establish internal majority voting requirements and meeting times, create an ethics commission, and eliminate a state’s public campaign finance option. Maryland came within a hair’s breadth of approving a new constitutional convention.

In 2000 and 2004, commentators were nervous about political party involvement in ballot measures. Political parties were putting controversial citizen initiatives on the ballot to incentivize their core voters. Since initiative procedural hurdles are difficult for grass-roots groups but not problem for political parties (who are already organized on the ground in every county), commentators worried about the initiative process “being hijacked” by political parties. This year saw few true “wedge” issues on the ballot.

Second, the citizens successful in putting measures on the ballots were (with one major exception), more often than not, pushing views on causes not accepted by their legislatures. There were measures to roll back global warming legislation, to define a “person” to include a fetus, to prohibit state courts from relying on international or sharia law, to legalize marijuana, and to block the new federal health care legislation. The exception was measures in seven states aimed at improving the lot of military veterans. All passed.

Third, the difficult economic conditions manifested themselves in the results. States asked for less bonding authorization in an even-year election than they have in many years. Ninety percent of the requests passed, however. In multiple states (both red and blue), voters rejected every revenue increase on the ballot. In one state, Washington, the voters repealed the 2009 state tax increases passed by the legislature. A Massachusetts measure to cut the state sales tax rate by more than half failed, however. Voters in Colorado rejected initiatives that would have fixed an allocation of state funding to education.

Fourth, the national press focused on two propositions, California’s Proposition 19 to legalize marijuana and Oklahoma’s Measure 25 that prohibits state courts from relying on Sharia or international law in deciding cases. National press pundits lost on both, with Proposition 19 failing and Measure 25 winning. Proposition 19 was ahead in the polls until the very last week or so before the election.

Now the press is piling on Oklahoma. The national press consensus is that the Measure reflects both ignorance and bigotry. Oklahoma citizens do not think so. They have rejected the approach of Great Britain (and other western countries) that have established sharia courts to settle certain disputes among Muslims. And they also rejected the tendency of Supreme Court Justices Stevens and Ginsberg (and supported the opposition of Justice Scalia) to cite foreign law to shape their opinions in United States cases. For the citizens of Oklahoma to weigh in on such issues seems pretty well-informed to me.


Edward B. Foley

Gerrymandering as Viewpoint Discrimination: A "Functional Equivalence" Test

Edward B. Foley

A First Amendment test for identifying when a map is functionally equivalent to a facially discriminatory statute.

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In the News

Daniel P. Tokaji

This is why US election ballots routinely go missing

Professor Dan Tokaji was quoted in USA Today about the prevalence of missing election ballots.


"Most of the time, it just goes unreported because it doesn't affect the result," Tokaji said. 

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Info & Analysis

Supreme Court Finds Partisan Gerrymandering Claims to be Non-Justiciable Political Questions

In a 5-4 decision, the U.S. Supreme Court issued an opinion on Thursday determining that claims of partisan gerrymandering are political questions beyond the reach of the federal courts. The opinion resolved disputes originating in North Carolina and Maryland, in the cases of Rucho v. Common Cause and Lamone v. Benisek.

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