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Ballot Initiatives: Buyer Beware


While the presidential election has dominated the news, 124 statewide ballot initiatives will be considered by voters on Election Day.

While early voting lines might be much longer this year (multiple news outlets reported massive waits in Florida on Monday, for example, where it was the first day of early voting), voters’ actual ballots could be much shorter. According to the University of Southern California’s (USC) Initiative and Referenda Institute, only 124 statewide initiatives made it onto various ballots across the country this November, “the lowest number in an even-numbered year in the 21st century, well below the peak of 204 in 2006 and the 156 propositions in 2018.”

Why is the number of referenda down this year?

According to the USC researchers, the drop is likely due to the coronavirus pandemic.

As the National Conference of State Legislature’s Amanda Zoch explained in an August 2020 article, “Measures get on the ballot in one of two ways: through a citizen initiative—where citizens have an idea for a statutory or constitutional change and gather signatures to place it on the ballot—or through a referral to the ballot from the legislature.”

During the coronavirus pandemic, it was difficult, if not impossible, for citizens to gather the required signatures for ballot initiatives. These signature-gathering efforts typically involve going door-to-door or finding areas where lots of people congregate to convince voters to lend their John Hancock to an attempt to get an issue on the November ballot. In other words, precisely the types of things that social distancing discourages. And as for state legislatures? They can be forgiven for focusing throughout the year on the pandemic and its economic impact to both their constituents and to their state budgets.

According to USC, this year there will be just 39 initiatives that were proposed by citizens considered this Election Day, down from 61 two years ago. Seventy-six of the measures tracked by USC’s researchers that will appear at the polls next month are legislative ballot measures. That figure is down slightly from 84 in 2018.

And what are the top issues voters will consider this year?

Marijuana legalization is still a popular topic, and so are tax changes, particularly given large state budget deficits as a result of the health crisis. In Arizona, voters will consider a wealth tax in the form of a 3.5 percent surtax on incomes over $250,000, while Alaskans will be asked whether to raise levies on oil and gas production.

But the award for the most unique referenda is shared by Oregon and Arkansas. Arkansas is asking its citizens to approve or reject a law that has allowed optometrists in the state to perform laser surgery – a flare-up in the notorious “ophthalmologists against optometrists” political battle – while voters in Oregon will decide whether to legalize the distribution of hallucinogenic mushrooms at licensed facilities.

Changes to the ways citizens will vote in future elections also are a hot topic this year.

In California, for example, voters this year will consider one proposal that would allow 17-year-olds to vote in primary elections if they will be 18 years old by the general election. Another proposal in the Golden State would restore voting rights to felons once they have completed their incarceration. And in Colorado, according to Lexis Nexis, voters will determine the fate of the National Popular Vote Interstate Compact. The state legislature codified this compact last year, which pledges to award the state’s electoral votes to the presidential candidate who wins the national popular vote. Proposition 113, on the ballot this November, asks voters whether this law should be upheld or repealed.

As researchers at USC and Lexis Nexis both attest, it is California voters who will grapple with some of the biggest questions. In addition to the electoral changes mentioned above, Californians will decide whether or not to repeal a 1996 voter-approved ban on affirmative action in public employment, education, and government contracting and whether or not to repeal a 1978 voter-approved initiative that capped the state’s property taxes at one percent.

One of the biggest issues on California’s ballot—at least for technology companies—is Proposition 22, which would overturn a law, AB 5, passed earlier this year by the state legislature that kept rideshare companies like Uber and Lyft from employing drivers as independent contractors. Other sectors, including freelance journalists and the Hollywood entertainment industry, have lined up against AB 5 and also would like to see it overturned.

As a result, according to USC’s Initiative and Referenda Institute, “Contributions in support of [Prop 22] have reached $181 million so far, eclipsing by a large amount any previous measure.” Opponents have raised only $4.8 million.

While AB 5/Prop 22 have received a lot of attention from the media, another California initiative, Proposition 24, deserves significant attention as well.

If approved by voters, Prop 24 would alter the California Consumer Protection Act (CCPA), which was approved by the state legislature in 2018 and went into effect earlier this year. The CCPA also is often cited as the nation’s strongest state privacy law.

Some advocates think it could be stronger. As such, according to Ballotpedia, a “yes” vote on Prop 24 would require businesses to:

  • Refrain from sharing a consumer’s personal information if the consumer makes that request;

  • Provide consumers with an opt-out option for having their sensitive personal information, as defined in law, used or disclosed for advertising or marketing;

  • Obtain permission before collecting data from consumers who are younger than 16 and permission from a parent or guardian before collecting data from consumers who are younger than 13; and

  • Correct a consumer’s inaccurate personal information upon the consumer's request.

As Wired explained, “The point of Prop 24 is to patch the holes currently making the CCPA such a leaky privacy vessel.” Wired noted that Prop 24 also would:

  • Change the CCPA’s “Do not sell” provision to “Do not sell or share” in order to “eliminate any wiggle room for unremunerated data transfers” (currently, the CCPA only prohibits businesses from selling data and business have argued if no money is exchanged, then data may be shared);

  • Clarify that targeted advertising does not count as a “business purpose” that exempts companies from complying with user opt-outs;

  • Increase enforcement by requiring the legislature to appropriate $10 million in annual spending for a new privacy protection agency; and

  • Allow the state legislature to make changes to the CCPA “with a simple majority vote—but only if those changes enhance, rather than weaken, the purposes of the law.”

Those changes are significant—and burdensome for businesses—and some privacy advocates think Prop 24 actually could weaken consumers’ position in the marketplace, particularly the most vulnerable Californians.

One common complaint, as Wired explained, “is that Prop 24 allows what is pejoratively known as ‘pay for privacy’: businesses can charge users more if they opt-out of sharing their information.” Jacob Snow, a technology and civil liberties attorney at the ACLU of Northern California, told the magazine, “If you look at the people who need privacy the most, I think those are often people who are economically struggling … But if people have to pay for their privacy rights, then privacy becomes a luxury that rich people have but poor or economically struggling folks don’t have access to.”

The Electronic Frontier Foundation (EFF), which works to enact strong privacy legislation across the country, has been agnostic on Prop 24, neither endorsing nor actively opposing it. In a blog post in July, EFF raised the “pay for privacy” concerns and also argued Prop 24 would be a major step backward in other respects. For example, the initiative would expand the power of a business to refuse a consumer’s request to delete their data and would “diminish a business’ duty to transmit a consumer’s deletion request to downstream entities who got that consumer’s data from that business.”

There is another issue, and that one raises questions about ballot measures in general: will Californians even understand what policy they are being asked vote on? After all, as the Los Angeles Times noted, “Proposition 24 clocks in at 52 pages of dense technical language concerning the intricacies of online data collection” and is “as intelligible to a layperson as the user manual of an aircraft carrier.”

How will voters decipher it, particularly if they have not read up on the referendum before taking a look at their ballot?

In a 2016 New York Times op-ed, George Lakoff, a professor of linguistics at the University of California, Berkeley, said, “many ballot initiatives are purposefully misleading — taking advantage of voters’ lack of knowledge about the real implications of the initiative.” He also warned “There is a whole industry devoted to writing misleading ballot measures and using misleading ads, comprised of think tanks, legislators, lobbyists and the public relations firms they hire. Money and political advantage drives much of what makes it onto the ballots.”

In other words: if you are in one of the 33 states that this year will have statewide initiatives on the ballot: do your homework, and read carefully.

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