United States: Ballot Question Fights Looming In 2020

Last Updated: July 12 2019
Article by Andrew M. London

As a quick glance at any news outlet makes clear, the 2020 Election cycle is in full swing. While the early press coverage is already focusing on the large field of aspiring presidential nominees barnstorming in Iowa, New Hampshire, and South Carolina, by August 2019 Massachusetts voters will also get an early look at which state ballot questions will be seeking a spot on the November 2020 Massachusetts ballot.

Ballot questions play a key role in determining which issues voters are talking about in November and which voters go to the polls. In Massachusetts, there are three distinct ways voters can place a binding proposal on the state election ballot. We have discussed the different types of ballot questions in Massachusetts in more detail in a prior post.

The most common path for placing a question on the Massachusetts state election ballot is an Initiative Petition for a Law. Outside of some select excluded topics, Initiative Petitions can propose any new law, so long as it only includes subjects that are related or mutually dependent, and so long as the topic did not appear on the ballot in either of the two preceding state election cycles.

Placing an Initiative Petition for a Law on the ballot is a straightforward process, but it is not easy. In any given election cycle, the majority of proposed ballot questions never make it to the November ballot. There are significant opportunities for public participation at each step of the process, so both proponents and opponents need to be prepared to take action early.

As individuals and organizations start thinking about Initiative Petitions for 2020, here are some key dates to keep in mind:

  • Before August 7, 2019: Proponents of an Initiative Petition can submit draft petitions on a non-binding basis to the Attorney General's Office (AGO) for review. Petition drafters should take advantage of this opportunity, and submit petitions as soon as possible.
  • August 7, 2019: The deadline for proponents to submit their proposed law with the signatures of at least ten registered voters and a completed Information Sheet. Proponents must submit their petition with a certificate of voter registration from the board of registrars or election commissioner in the city or town in which each signer is registered to vote.
  • Mid-August 2019: Proponents and opponents of proposed initiatives can submit memorandums of law to the AGO on why the AGO should or should not certify the measure. The AGO reviews all proposed Initiative Petitions, but review is limited to whether a petition meets the constitutional requirements set forth in Amendment Article 48 of the Massachusetts Constitution. The Attorney General's own policy preferences are not permitted to play a role in the certification decision.
  • Before September 4, 2019: The AGO will certify whether or not a proposed measure meets the constitutional requirements.
  • September 18, 2019 – November 20, 2019: After a petition has been certified, proponents have a relatively short window — until November 20, 2019 — to collect and file signatures of 80,239 registered voters with local registrars for certification. They then have until December 4, 2019 to file those certified signatures with the Secretary of the Commonwealth. No more than one-quarter of certified signatures may come from any one county.
  • February 1, 2020: The Attorney General's decision to certify or not certify a proposed initiative petition can be challenged directly before the Supreme Judicial Court (SJC). The AGO will generally facilitate the filing and agree to relevant facts, allowing the SJC to hear the case quickly and render a speedy decision. As we discussed in an earlier post, the SJC strongly encourages that all legal challenges to AGO certification decisions be filed by February 1, 2020.
  • May 5, 2020: Any petition with the necessary number of certified signatures is sent to the Legislature for consideration. The Legislature is given the opportunity to enact the petition in order to eliminate the need to place the issue on the ballot. The deadline for the Legislature to enact a proposed petition is May 5, 2020.
  • June 17, 2020: In addition to the signatures already collected, proponents must collect an additional 13,374 signatures in order to place the Initiative Petition on the ballot. These additional signatures must be filed with local registrars by June 17, 2020, and proponents must file the certified signatures with the Secretary of the Commonwealth by July 1, 2020. Once again, no more than one-quarter of certified signatures may come from any one county.
  • November 3, 2020: Election day.

Our team at Foley Hoag LLP has significant experience assisting both ballot question proponents and opponents in navigating this process – from drafting and reviewing petitions to successfully challenging certification decisions at the Supreme Judicial Court. We will be closely monitoring the ballot question process and will provide additional updates as we learn more about the potential questions on the November 2020 ballot.

To view Foley Hoag's State AG Insights blog click here

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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