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Election 2012: Ballot initiatives reflect nation's mood

The 174 propositions on state ballots point to evolving opinions on marijuana, same-sex marriage, health care, and more. Do the initiatives show the power of direct democracy or lack of legislative leadership?

By , Staff writer

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    Demonstrators gathered outside City Hall in Portland, Maine, last month in support of a ballot initiative to legalize same-sex marriage. US voters have never endorsed gay marriage.
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Proponents call it "direct democracy," opponents call it "vigilante democracy" – and political scientists call it a vibrant part of American democracy.

On Nov. 6, voters in 37 states will decide 174 ballot propositions – the most since 2006, but well below the highs of the late 1990s and early 2000s, when voters were routinely considering more than 200 initiatives on Election Day.

The slate of 2012 initiatives points to several trends across American politics.

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For one, the number of initiatives put on the ballot by citizens (as opposed to legislatures) has dropped, suggesting that the weak economy is hampering grass-roots efforts.

Meanwhile, in "a symptom of the polarization in American politics," 12 popular referendums qualified for the November ballot, noted Jennie Drage Bowser of the National Conference of State Legislatures to Governing magazine. Popular referendums allow citizens to approve or reject a law passed by the legislature. In a typical election year, only two or three qualify for the ballot, suggesting a "tug back in the political tug-of-war" this year, Ms. Bowser said.

As always, these referendums and initiatives serve as a Rorschach test for what is on voters' minds, and this year they offer a glimpse into evolving American opinions on marijuana, same-sex marriage, and President Obama's health-care law, in particular.

"Because they sidestep the usual legislative process, citizens' initiatives can help press, pundits, and legislators connect the dots on what is really pushing voters' buttons across America," says John Matsusaka, president of the Initiative and Referendum Institute at the University of Southern California in Los Angeles.

Marijuana. Three states – Massachusetts, Montana, and Arkansas – are considering medical-marijuana initiatives. The Massachusetts and Arkansas initiatives seek to legalize medical marijuana; Montana's would amend an already existing law.

Meanwhile, another three states – Colorado, Oregon, and Washington – have initiatives that seek to make them the first in the nation to legalize marijuana for recreational use. A similar initiative in California in 2010 failed, 53 percent to 47 percent. But polls show that the Colorado and Washington measures have majority support.

"If several states are able to pass marijuana initiatives, a policy of legalization could gain ground and possibly be sufficient to reverse the federal prohibition if enough states decide to do so," says Rosalie Pacula, codirector of the RAND Drug Policy Research Center in Santa Monica, Calif.

She says that federal prohibition came about not because of the federal government imposing it on states, but because most of the states had adopted policies of prohibitions themselves. With the 1937 Marijuana Tax Act, the federal government simply changed its law to reflect the growing sentiment of the states, she adds.

But there could also be a backlash, she and others say. What happens next, she says, would be determined by how rigorously the federal government fights the trend, and whether the state experiments are deemed a success in terms of a positive outcome with minimal harm.

"Both of these two things are entirely unknown," Ms. Pacula says.

Same-sex marriage. Voters have never endorsed same-sex marriage. Thirty of 31 ballot initiatives to ban same-sex marriage have succeeded, and all attempts to legalize it via the ballot box have failed. But experts will be watching this November to see if Mr. Obama's open declaration of support for same-sex marriage earlier this year has helped shift the calculus.

Maine is attempting to become the first state to legalize same-sex marriage by ballot initiative. It used a popular referendum in 2009 to block a same-sex marriage law passed by the Legislature and signed by the governor. But this year, the initiative is leading 57 percent to 36 percent, according to a September poll by Critical Insights of Portland, Maine.

Washington and Maryland are holding popular referendums on laws legalizing same-sex marriage, which were passed by their legislatures and signed by their governors. A majority of voters in both states support the laws, according to polls.

Meanwhile, Minnesota voters will consider a constitutional amendment defining marriage as between a man and a woman, though it would leave open the possibility of civil unions. Polls show a majority supports the amendment.

"This will be the first test of support for same-sex marriage since President Obama's highly publicized endorsement, which seems to have helped move public opinion sharply in favor," says John McGlennon, a political scientist at the College of William & Mary in Williamsburg, Va. "But the results in the states which have voted in the past have been uniformly negative."

Health care. In 2010, Arizona and Oklahoma voters amended their constitutions, declaring that no individual or business would be compelled to participate in Obama's Affordable Care Act. Voters in four more states – Alabama, Montana, Florida, and Wyoming – will consider similar measures this November.

"Election returns on these propositions will provide some insight into how the health-care reform plan is being viewed and what the political landscape looks like for further health-care reform," Mr. Matsusaka says.

In addition to the obvious political overtones, the measures also reflect economic uncertainty. "States are scared to death they can't afford it, on top of their burgeoning social security and Medicare entitlement cost loads already on their insolvent books," says Oliver McGee, a professor at Howard University in Washington.

The Supreme Court's ruling on the health-care law earlier this year established that states could opt out of the plan's expansion of Medicaid, but it affirmed the constitutionality of the law – leaving the states' measures in legal limbo.

Some suggest they have no legal standing. "The state propositions appear to suggest that both individuals and businesses can simply choose to ignore the Affordable Care Act," says Barbara Atwell, a professor at Pace Law School in White Plains, N.Y. "But since it is a legitimate act of Congress … state laws that conflict with it will be struck down under the supremacy clause."

Others suggest the state measures could lead to lengthy legal proceedings. "It looks like there will be another round of cases to determine both points: Is what the states are doing constitutional, and if so, what is the recourse for the federal government?" says Robert Langran, a constitutional scholar at Villanova University in Philadelphia.

A handful of other initiatives nationwide are also being closely watched. As is typical, California – which has more initiatives on the ballot than any other state (13) – looms large.

Taxes. California Gov. Jerry Brown's Proposition 30 asks voters temporarily to increase income tax rates on the wealthy and raise sales taxes by 25 cents to help balance the state budget. If the measure does not pass, billions of dollars in cuts will kick in, seriously threatening the state's higher education and welfare systems.

"If Jerry's tax initiative doesn't pass, all hell will break loose and governing California will be a nightmare," says Barbara O'Connor, director emeritus of the Institute for Study of Politics and Media at California State University, Sacramento.

Affirmative action. Oklahoma's State Question 759, placed on the ballot by the Legislature, would prohibit discrimination or preferable treatment based on race, sex, ethnicity, and national origin. It would undercut some affirmative-action programs in the state. Passage would signal a further acceptance of the idea of a "color blind" approach to race after similar measures have passed in Arizona, California, Michigan, Nebraska, and Washington.

Physician-assisted suicide. Massachusetts' Question 2 would allow a person diagnosed as terminally ill by physicians to be given a lethal injection. A poll in late August showed voters in favor by 2 to 1. Since 1991, five states have voted on physician-assisted suicide, with Washington rejecting it that year but approving a similar measure 17 years later. Other proposals were voted down in Michigan and California in the 1990s but passed in Oregon in 1994.

Union dues. California's Proposition 32 will try to prohibit union dues from being used for political purposes without explicit authorization of members. Intended to lessen the power of public employee unions in the state, the measure would prohibit union and corporate contributions to campaigns and bar government contractors from campaign contributions. Similar measures were narrowly defeated in 1998 and 2005.

Death penalty. California's Proposition 34 would abolish capital punishment in the state, converting all existing death-row sentences to life imprisonment without possibility of parole. Since California adopted the death penalty in 1978, it has executed 13 people; 57 people on death row have died of natural causes. "California spent over $4 billion trying to enforce capital punishment – $4 billion for 13 people. It makes no sense economically," said Sacramento attorney Donald Heller, who wrote the state's 1978 law but now supports Prop. 34, to CBS News.

What can be gleaned from the votes?

Some say they signal the power of direct democracy. "Ballot measure spending is still far and away one of the most expensive political exercises in the free world, next to the big one of the US presidential race," says David McCuan, a political scientist at Sonoma State University in Rohnert Park, Calif. "That's quite a statement of the power of the ballot box and really the power of voters to say, 'No, we don't want that,' or, 'We prefer the status quo.' "

Others say the ballot measures show a lack of leadership and the growth of infighting in legislatures.

"In short, these direct democracy mechanisms signal a breakdown of the moderating influences of representative government articulated by the Founding Fathers in the US Constitution," says Eric Patterson, dean of the Robertson School of Government at Regent University in Virginia Beach, Va. Those include checks and balances, federalism, separation of powers, and "other long-forgotten instruments, such as the selection of senators by state legislatures and moderate jurisprudence rather than social engineering from the bench."

The question for this November, he says, "is whether states can harness the positive energy of activated citizens toward a common good rather than disintegrate in petty bickering. We'll need statesmen and stateswomen from both parties for that to happen."

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