An Overview for Interested Members of the Public
The initiative process is established by Amendment Article 48 of the Massachusetts Constitution as a way for citizens to propose laws and constitutional amendments for approval by the electorate. The basic steps for a proposed law are:
- the initiative measure is signed by ten voters and submitted to the Attorney General by the first Wednesday in August (August 5, 2015);
- the Attorney General determines (usually by the first Wednesday in September, i.e., September 2, 2015) whether the measure meets the requirements of Amendment Article 48;
- if certified by the Attorney General, the measure is filed with the Secretary of State;
- thousands of additional voter signatures are gathered (this year, the requirement is 64,750) and filed with local election officials by late November and then with the Secretary of State by the first Wednesday in December;
- if enough are gathered, the measure is sent to the Legislature in January of 2016;
- the Legislature either approves or disapproves the measure, proposes a substitute, or takes no action;
- unless the Legislature has enacted the measure before the first Wednesday in May of 2014, the proponents gather still more signatures (this year, 10,792 signatures are required) by early July;
- if they gather enough, the measure and any legislative substitute are submitted to the people at the next biennial state election (in this case, November of 2016).
The process is similar for constitutional amendments, but they must go through two successive sessions of the Legislature and must (unlike initiative petitions for laws) get the approval of 25% of the legislators in each session. Thus any proposed constitutional amendments submitted by August of 2015 could not appear on the ballot until November of 2018.
It is possible to file a petition with the Attorney General by the first Wednesday in August of an even-numbered year (i.e., August 3, 2016), but petitioners rarely do so, because filing at that time does not allow a proposal to appear on the ballot any earlier than if filed in the following, odd-numbered year. Please contact the Attorney General's Office for further information about this issue; contact information appears at the end of this memorandum.
The Attorney General's own policy views play no role in certification decisions. Rather, amendment article 48 requires the Attorney General to certify an initiative measure if the following requirements are met, and to refuse to certify the measure if the requirements are not met:
- the measure, including its title, must be in proper form for submission to the people;
- the measure must not be, either affirmatively or negatively, substantially the same as any measure which has been qualified for submission or submitted to the people at either of the two preceding biennial state elections; and
- the measure may contain only subjects that are related or mutually dependent and that are not excluded from the popular initiative.
The "excluded matters" requirement usually presents the most challenging legal issues. Based on the express words of Amendment Article 48, as approved by the voters themselves in 1918, many important and controversial areas are simply off-limits to initiative petitions, and petitions touching on these matters cannot be certified. This limitation on the "people's process" is often disappointing to proponents of particular petitions, but it is a limitation approved by the people themselves and binding on the Attorney General. According to Amendment Article 48, a measure is excluded if it:
- relates to religion, religious practices or religious institutions;
- relates to the appointment, qualification, tenure, removal, recall or compensation of judges, or the reversal of a judicial decision, or the powers, creation or abolition of courts;
- is restricted in its operation to a particular town, city or other political division or to particular districts or localities of the Commonwealth;
- makes a specific appropriation of money from the treasury of the Commonwealth;
- relates to Amendment Article 18 (religious freedom; the "anti-aid" amendment) or that portion of Amendment Article 48 that specifically excludes matters from the operation of the initiative and referendum process; or
- is inconsistent with any of the following state constitutional rights:
- the right to receive compensation for private property appropriated to public use;
- the right of access to and protection in courts of justice;
- the right of trial by jury;
- protection from unreasonable search, unreasonable bail and the law martial;
- freedom of the press;
- freedom of speech;
- freedom of elections; and
- the right of peaceable assembly.
Note that this list, as set forth in Amendment Article 48, is exclusive. The Attorney General could not refuse to certify a proposed law on the ground that it clearly and indisputably conflicted with some other constitutional guarantee not mentioned in Amendment Article 48, such as due process and equal protection requirements, the prohibition against cruel and unusual punishment, and so forth. If such a proposed law appeared on the ballot and were approved by the voters, however, it could then be challenged in and invalidated by a court.
The Attorney General's review process is conducted in full cooperation with the sponsors of a proposed law, as well as with any opponents of the law who believe it should not be certified. The Attorney General welcomes legal memoranda on whether a proposed law should be certified; any such memorandum should also be sent to the sponsors or, in the case of a memo filed by the sponsors, to any opponents who have identified themselves to the Attorney General. The goal is to ensure that all issues are spotted and all views thoroughly considered before the Attorney General makes the certification decision. A list of all petitions that have been filed with the Attorney General, together with the names and telephone numbers of their sponsors, is usually available by the close of business on the last day for filing petitions.
If the Attorney General decides to certify the measure as conforming with these requirements, the Attorney General also prepares a fair and concise summary of the measure. The Secretary of the Commonwealth places this summary on blanks for subsequent signatures. If the measure eventually appears on the ballot, the summary appears in the guide for voters prepared by the Secretary and appears on the ballot as well. As is the case with certification issues, the Attorney General welcomes comments from both sponsors and opponents on how the summary of each proposed law should read, and the Attorney General ordinarily circulates drafts in order to obtain such comments.
The Attorney General's certification decisions, whether favorable or unfavorable, have frequently been challenged in the Supreme Judicial Court (SJC), which has the last word on whether a measure meets the Amendment Article 48 criteria for appearing on the ballot. The likelihood of such high-level judicial review, particularly with regard to initiative petitions raising controversial issues, makes it all the more important that the Attorney General make certification decisions based not on policy grounds or the Attorney General's own views but, instead, solely on the Amendment Article 48 criteria that will ultimately be applied by the SJC. This has been the approach in past years, and thus the Attorney General's certification decisions have usually been upheld.
A decision not to certify would usually be challenged immediately, i.e., within days after the decision is announced in early September. The Attorney General recognizes that the SJC may always disagree with that decision and so, to protect the rights of the petitioners, the Attorney General does everything possible to facilitate a prompt and fair resolution of the dispute, e.g., by informing the proponents of how and where to file their case, and by stipulating to all relevant facts.
Also, in most cases, the Attorney General immediately agrees to an injunction requiring that the Attorney General's summary of the proposed law be forwarded to the Secretary, who then prints up signature blanks, so that the proponents can seek signatures while they proceed with their court challenge. This avoids having the challenge rendered moot by the constitutionally mandated signature-gathering timetable. If the proponents could not gather signatures until the court finally decided the case, which could take several months, then a victory would be pyrrhic because there would be insufficient time to gather the thousands of signatures required by the first Wednesday in December. The Attorney General's agreement to an order allowing signature gathering ensures that if the proponents are correct on the law, they have the same chance as all other petitioners to get their proposed law on the ballot. If the proponents fail to get the requisite signatures, however, the case is dismissed as moot.
Challenges to decisions to certify petitions are usually not filed until it is known whether the proponents have gathered enough signatures by the first Wednesday in December to go forward in the process. If insufficient signatures are gathered, then there is no point in filing the suit. If sufficient signatures are gathered, opponents of the petition then file suit, the Attorney General stipulates to the facts, and the SJC hears argument sometime in the spring.
Voter Information Materials
If a petition, as of April of an even-numbered year, remains eligible to appear on the November ballot, G.L. c. 54, § 53, requires the Attorney General and the Secretary of the Commonwealth to jointly prepare certain voter information materials. These are (1) a “ballot question title” --a short title that appears in the Information for Voters Guide published by the Secretary -- and (2) “fair and neutral one sentence statements describing the effect of a yes or no vote” -- which appear in the Guide and on the November ballot. Drafting of these materials ordinarily begins by April 1 and is complete later in April. Interested parties’ comments are welcomed on drafts prepared by the Attorney General and Secretary. For more information or to participate in the process, please contact the Attorney General’s office as described below.
Please contact Assistant Attorney General Tori Kim at (617) 963-2022, or firstname.lastname@example.org with any additional questions.