It's Election Day. And among the choices facing eligible voters are three ballot initiatives — citizen initiated proposals — to change the law. They concern patient nurse limits, the creation of a commission to limit campaign spending and the state's transgender anti-discrimination law. WGBH's Morning Edition anchor Joe Mathieu discussed this year's ballot initiatives with WGBH legal analyst Daniel Medwed. The following transcript has been edited for clarity.
Joe Mathieu: We've entered a world in which ballot questions can do things the legislature often cannot do, think legal marijuana, is a pretty good example in recent history here- things that lawmakers would simply never be able to agree on if they even voted in public on this. But where do these ballot questions come from?
Daniel Medwed: Great question. There are three basic types and they revolve around a petition format. So first, there's something called an initiative petition, where citizens want to create a new law or change the constitution. Next, there's something called a referendum petition, where citizens want to repeal a law that's already been enacted by the state legislature. And finally, there's something called a public policy petition, which frankly I don't know that much about, it's when citizens submit questions of non-binding public policy to a state senator or to a representative in a particular district. Now of these petitions, the initiative petition is by far the most common, the one most familiar to voters.
Mathieu: So let's run with that for a minute. What's the actual process for getting it on the ballot?
Medwed: Well it depends to some extent whether you're trying to create a new law or to change the constitution. Let's say you're trying to create a new law. Simply put, it doesn't take much to get the ball rolling. All you have to do is draft the legislation, find 10 registered voters. Yes, just 10, to sign it, then you get to submit it to the attorney general's office for review. The AG's office is looking at whether it satisfies basic bare bones constitutional requirements and if it does, it will certify the question to the secretary of the state. Then it goes to the legislature for consideration. Let's assume that the legislature doesn't pass the bill. Assuming that the citizens satisfy certain timing and signature requirements, then it goes on the ballot for consideration by all of us.
Joe Mathieu: We're talking with WGBH legal analyst Daniel Medved about the ballot initiative process here in Massachusetts. You mentioned the attorney general's office signs off on the constitutionality here, what are the hurdles, the constitutional hurdles that must be overcome?
Medwed: Well I think there are two major ones in Massachusetts. For one thing, Article 48 of our state constitution provides that ballot questions must contain only related or mutually dependent questions. There's a concern about voter confusion- if you have too many disparate issues packaged in a single question, voters might not know what they're voting about. In fact, just this past summer our state Supreme Judicial Court, the highest court in the Commonwealth, struck down the so-called millionaire's tax ballot initiative on these grounds. The court found that it contained multiple independent questions first the question about whether there should be a 4 percent surtax on millionaires. And second, how to disperse that revenue between education and transportation. The other major hurdle relates to substance. There are certain topics that are simply out of bounds, off limits for a ballot question.
Mathieu: Well now I want to know what they are. What's out of bounds?
Medwed: Well it's a pretty lengthy list. Some of them are somewhat obvious. For instance, you can't raise a ballot question that would affect religious officials or religious institutions. You can't raise a question that would affect the appointment or removal of judges and you can't present a ballot question that would impair the rights conferred in the Massachusetts declaration of rights, including freedom of speech, the right to a jury trial and most notably, for our purposes Joe, a freedom of press.
Mathieu: Okay, understand. Well, you know I mentioned legal marijuana as an example, casino gambling is another one. These are big issues so here we are on election day. Bring it home for us. What do you need to do to pass a ballot question?
Medwed: It's a majority rules question. You mentioned marijuana just last year. Recently it passed by a relatively slim majority, I can't recall, maybe 52 or 53 percent. So it's not a super majority, it's a majority. There are three ballot questions today and if you care about these issues, which many of us do, get out there and vote.
