2004 Initiative and Referendum

Pre-Election Overview

There's much more at stake than candidate races this November 2--voters in 34 states will have the last word on 163 complex and often controversial policy issues too.  Ranging from same-sex marriage bans to education funding, tort reform, and more, this year's crop of ballot measures includes high-profile issues in a number of the swing states.

The Numbers (definitions of the measure types) 

Citizen Initiatives Legislative Referenda Popular Referenda Other  Total Ballot Measures

59 100 2 1 162

The Numbers in Historical Context

The number of initiatives on the ballot this year is slightly higher than in 2002, but still nowhere near the high water mark of 1996.  It is typical for the number of initiatives on the ballot to increase slightly in presidential election years, and this year is no exception.  In 2002, there were 53 initiatives on the ballot, down from 72 in the 2000 presidential election year.  This year, it's back up to 59.

The number of legislative referenda, on the other hand, is lower than usual this year.  This year there are just 101 legislative referenda on statewide ballots, compared to 144 in 2002, 132 in 2000, and 165 in 1998.

Initiatives on the Ballot 1990 - 2004 (presidential election years are shaded) 1990 61 1992 61 1994 76 1996 90 1998 61 2000 72 2002 53 2004 59

This Year's Issue Trends

Conservative issues dominate the ballot in many states this year.  Same-sex marriage bans and tort reform are hot issues in a number of states, and both are also relatively new to the ballot issue arena.  Health care, education, gambling, taxes, and the election process itself are common themes in most election years, and this year is no exception.

Same-Sex Marriage Bans

A total of 11 states will vote on same-sex marriage bans on November 2, and two others-Louisiana and Missouri-already approved bans in their primary elections.  Among the states that will decide on same-sex marriage bans on November 2 are four of the key battleground states-Arkansas, Michigan, Ohio and Oregon.  History has shown that a particularly controversial ballot measure can increase voter turnout, and may particularly spur voters who support an issue on the ballot to get out and vote.  The presence of these measures on the ballot therefore could have the effect of increasing conservative voter turnout.  The effect may be most pronounced in Ohio, where this is the only statewide issue on the ballot.

Medical Malpractice and Tort Reform

Six states will vote on tort reform measures this fall, many of which address medical malpractice cases.  California, Colorado and Nevada will consider tort reform measures not related to medical malpractice-Colorado's initiative seeks to overturn a legislative restriction on property owners' ability to sue homebuilders, California's would limit rights to sue over unfair business practices, and Nevada's would punish lawyers who file frivolous lawsuits.  In Nevada, Oregon and Wyoming, voters will consider placing limits on noneconomic damages ("pain and suffering" awards) in medical malpractice cases.  Florida voters will decide whether contingency agreements between attorneys and clients should be limited in medical malpractice cases.  Florida voters will also vote on two other related measures-one addresses whether citizens should have access to records of doctors' "adverse medical incidents," and the other whether doctors who have committed three or more incidents of malpractice should be barred from holding a medical license.

Gambling

Gambling measures will appear on the ballot in six states, with competing or conflicting measures in a handful.  In California, there are two gambling measures-one requires that tribes pay 25% of their gaming revenue to the state and would authorize non-tribal casinos if they refuse, and the other would grant tribes exclusive gaming rights in the state and would exempt tribes from any payment to the state if non-tribal gaming is approved.  Nebraska also has dueling gambling measures-three initiatives would legalize gambling subject to local voter approval, while a legislative referendum would authorize gambling on a more limited basis.  Oklahoma voters will decide if the state should implement a lottery, with the majority of its revenues dedicated to education.  Washington voters will have the chance to expand video poker, with a portion of the proceeds dedicated to replacing the revenue lost in a reduction in property taxes.  Florida voters will decide whether Miami-Dade and Broward counties should have slot machines at race tracks, and Michigan voters will decide whether future gambling enterprises should have voter approval before they're allowed to go forward.

Election Reform

Elections themselves will be a subject on the ballot this year, as voters in a dozen states face ballot questions on reforming the process.  The most controversial by far is Colorado's Amendment 36, which would change the state's system for allocating presidential electoral votes from a winner-take-all system, currently used by 48 states, to a proportional system.  If it passes, the amendment would take immediate effect with this year's presidential election.  Another controversial election issue is on the ballot in Arizona-it would require people registering to vote to prove their U.S. citizenship.  Two states-California and Washington-will decide on new primary systems.  Both states are considering changing from their current closed primary to a Louisiana-style top-two primary.  Both states previously used a blanket primary system, in which all candidates appear on a single ballot, regardless of political party, until the U.S. Supreme Court declared such primary systems unconstitutional.  And voters in Alaska, Arizona, Florida and Nebraska will consider measures reforming the initiative process itself.

Health Care

Health care measures will appear on the ballot in eight states.  California alone has eight health-related measures on the ballot this year:  a bond measure funding children's hospitals, an income tax increase funding mental health services, a telephone surcharge increase funding emergency medical services, a $3 billion bond measure funding stem cell research, and a popular referendum on a legislative measure that required employers to provide health insurance to employees.  Measures in Colorado, Montana and Oklahoma would increase tobacco taxes to pay for health care.  Measures in Montana and Oregon deal with medical marijuana-Montana's initiative would create a new program, and Oregon's initiative would expand an existing program.

Education Funding

Adequately funding education continues to be a struggle in many states, and in six this year, they've turned to the ballot for a solution.  A proposal in Arkansas would increase property taxes to fund education.  Two competing measures in Nevada would require that education be funded at a certain minimal level.    A North Carolina proposal would allow the legislature to dedicate revenues from civil penalties, fines and forfeitures to public schools.  Oklahoma is considering a lottery to fund education, and in Washington, the legislature is asking voters to approve a 1% sales tax increase for schools. 

Taxes

Taxes are always a big issue on the ballot, and this year is no exception.  Many of these measures have already been mentioned in their policy area they relate to, but here they are again in the context of tax changes:  Arkansas-increase property taxes to fund schools; California-increase personal income tax to fund mental health and increase telephone surcharges to fund emergency medical services; Colorado, Montana and Oklahoma-increase tobacco taxes to fund health care; Maine-limit property taxes to 1% of the property's assessed value; Missouri-dedicate all revenues from gasoline and highway taxes to transportation projects; South Dakota-exempt food from sales tax; Utah-increase state sales tax by 1/20 of a cent to fund environmental projects; Washington-increase state sales tax by 1% to fund education and use revenue from new video gambling to fund property tax reduction.  California also has a pair of competing measures that seek to protect local government's share of state revenues.

Environmental Protection

Environmentalists are no stranger to the ballot when it comes to promoting their issue, and this year six states will vote on environmental measures.  A legislative proposal in Arizona would permit the exchange of state trust lands for other state lands if it preserves open space.  A Colorado initiative would require energy companies to buy or produce a percentage of their energy from renewable resources.  A Montana measure would permit the use of cyanide in gold and silver mining, long a contentious issue in that state.  An Oregon measure would promote balance in timber production and forest protection.  A Utah measure would increase sales taxes to fund environmental protection and growth management projects.  A Washington measure would set new standards for handling radioactive wastes.

Criminal Justice

Voters in two states will face multiple ballot questions on the subject of criminal justice.  California voters will face two-one would require DNA samples from all felons, and the other would amend the state's "Three Strikes" law to require increased penalties only for violent crimes and sex crimes against children.  Hawaii voters will decide on four measures, dealing with sexual assault, a sex offender database, and protection of victims' rights.

Labor

Three states will consider labor measures-in Colorado there's a proposal to reform the state personnel system, and in Florida and Nevada there are proposed minimum wage increases.

Insurance

Three states will consider insurance measures-in California there is a popular referendum to overturn a law passed by the legislature that would require employers to provide health insurance for their employees; in Nevada there are two measures-one would reduce insurance rates and premiums, and the other would require employers that don't provide health insurance to pay a higher minimum wage; in Oregon, a proposed initiative would abolish the state agency that sells and administers worker's compensation insurance, transferring its duties to a private entity. 

Oldies but Goodies-Hunting, Drug Policy, Term Limits

These are the issues, along with tax caps and campaign finance reform, that helped generate the surge in the use of the initiative back in the 1990s.  They're back this year, if not in the kind of numbers we saw in the 1990s.  Alaska voters will be asked once again if they want to legalize marijuana, and as previously mentioned, medical marijuana is on the ballot in Montana and Oregon.  Measures restricting bear hunting will be on the ballot in Alaska and Maine, while measures protecting the right to hunt will appear in Louisiana and Montana.  The legislatures in Arkansas and Montana are asking voters to loosen their term limits laws, permitting lawmakers to serve up to twelve years in either chamber (the current limits are six years in the house and eight in the senate in Arkansas, and eight in either chamber in Montana).

And Those That Defy Categorization...

In Arizona, Prop. 200 would require state and local agencies administering benefits to verify applicants' immigration status and eligibility and report to federal immigration authorities any violation of federal immigration law by applicants.  A constitutional amendment in Florida would require parental notification before the termination of a minor's pregnancy.  An amendment in South Carolina would repeal a law requiring that bars and restaurants sell alcohol only in minibottles.

Ballot Measures Database

NCSL maintains a complete database of all statewide ballot measures.  It includes ballot number and title, measure type, and a summary of the measure.  The summary provided is generally the official summary prepared by a state official such as the attorney general or secretary of state, and in some cases includes an estimate of fiscal impact.  The database is searchable by year, election, measure type, state or subject area.  You may also construct your own search using customized search terms.  Presently, the database includes all initiative measures back to 1990, and all legislative referenda back to 1998.  Legislative referenda from earlier years is included for some states.

Measure Types

• A Citizen Initiative is a proposed law or constitutional amendment placed on the ballot by citizen petition.  Initiatives often address particularly controversial issues-those that the legislature is unwilling or unable to address.  In many states, the legislature's ability to amend or a repeal a law that is passed by initiative is severely restricted, meaning that once these laws and constitutional amendments are passed, they are very difficult to change or repeal.  To read more about the initiative process, check out NCSL's task force report Initiative and Referendum in the 21^st Century, or visit NCSL's main initiative and referendum page.
• A Legislative Referendum is an issue placed on the ballot by the legislature for voter approval.  Most legislative referenda are either bond measures or constitutional amendments, and end up on the ballot because the state's constitution requires public approval of such measures.  In rare cases, the legislature will choose to refer a proposed law to the people for a popular vote.
• A Popular Referendum is a popular vote approving or rejecting an act of the legislature.  A popular referendum is placed on the ballot by citizen petition.  Citizens use the popular referendum when they want to block a law passed by the legislature from taking effect.
• Other measures may be placed on the ballot by a constitution revision commission, governor, or commission on salaries for elected officers.