How to Pop the Question: Initiatives and Referendums for the State Election Ballot

At last week’s Boston Pride Week kickoff, Mayor Marty Walsh was asked about a question slated for the November 2018 ballot that would repeal the new transgender public accommodations law in Massachusetts. If you’ve been following State AG Insights, you know that we have been closely following the 2018 ballot question process. Most questions for the 2018 ballot are still in the process of being drafted, so how do we know that the potential repeal of the transgender public accommodations law is already scheduled to go before the voters?

There are three distinct paths to get a binding proposal on the state election ballot: Initiative Petitions for a Law, Initiative Petitions for Constitutional Amendments, and Referendum Petitions. Each of these three paths are appropriate for different types of questions and have different procedural requirements.

  • Initiative Petition for a Law. Initiative Petitions for a Law are the most common way that questions appear on the statewide election ballot. Petitions that relate to religion, judges and courts, particular localities, specific appropriations, and certain other constitutional rights are excluded from an Initiative Petition. Outside of these excluded topics, Initiative Petitions can propose any new law so long as it only includes subjects that are related or mutually dependent and the topic did not appear on the ballot in either of the two preceding state election cycles. We explained the process for proposing an Initiative Petition in our previous post.
  • Initiative Petition for a Constitutional Amendment. The substantive requirements and process for proposing an Initiative Petition for a Constitutional Amendment are mostly the same as those for an Initiative Petition for a Law, but proposed constitutional amendments face an additional procedural hurdle before they may appear on the ballot. The proposed amendment must obtain at least 25 percent of the vote (50 votes) in the joint sessions of two consecutively elected sessions of the State Legislature. In May 2016, a proposed amendment to add a 4 percent surtax on the incomes over $1 million easily cleared the necessary number of votes to move forward. A joint session of the 2017-2018 Legislature is expected to vote on the same proposal shortly.
  • Referendum Petition. Referendum Petitions repeal a recently enacted law of the State Legislature. These petitions work on a different timeline than Initiative Petitions. Proponents of a referendum petition must submit the petition within 30 days of the Governor signing the bill into law, and they must collect the necessary signatures within 90 of the Governor’s signing. Petitioners for a referendum petition only need to submit 32,375 certified signatures in the current election cycle, which is less than half of the total signatures required for an Initiative Petition.

Governor Baker signed the transgender rights public accommodations law in July 2016. The proponents of the repeal timely submitted more than the 32,375 certified signatures needed to appear on the 2018 state election ballot.

Over the next two months we will get a clearer picture of the potential questions for the 2018 state election ballot. Initiative Petitions for a Law or for a Constitutional Amendment must be submitted to the Attorney General’s Office by August 2, 2017. We encourage you to check back for additional updates as we approach Election Day 2018.