MASSACHUSETTS

Massachusetts has statutory and constitutional initiatives, veto referendums, and legislatively referred amendments. The initiative process is indirect: before being submitted for a vote, a petition is transmitted to the state legislature (or “General Court”), which may pass a substitute proposal that is submitted to voters alongside the initiative. The timing of an election on a ballot measure may depend on the type of measure, but the Massachusetts Constitution does not explicitly require that any measures be submitted at general elections. Regardless of the type of ballot measure, the ballot itself must include statements drafted by the Attorney General and State Secretary. The State Secretary is also charged with distributing a detailed voter guide, which includes a fiscal effect statement prepared by the Secretary of Administration and Finance. Massachusetts allows a group of 50 voters to petition for high court review of ballot language and voter information materials, regardless of whether the measure is initiated via petition or a legislatively referred amendment.

BACKGROUND INFORMATION

What forms of direct democracy are available, and when?

Statewide Ballot Measures in Massachusetts

Massachusetts has indirect statutory and constitutional initiatives and veto referendums, in addition to legislatively referred amendments.

√ Initiatives – Statutory (Indirect + legislative alternatives)

√ Initiatives – Constitutional (Indirect + legislative alternatives)

The people of Massachusetts reserve the initiative power to propose statutes and constitutional amendments for popular approval or rejection. See Mass. Const. amend. art. XLVIII, Init., as amended by amend. art. LXXIV & amend art. LXXXI. The Massachusetts Constitution excludes certain matters from the initiative process, such as propositions inconsistent with specified individual rights. See id. amend. art. XLVIII, Init., pt. 2, § 2.

Massachusetts’ initiative process is indirect in that, before being submitted for a vote, a petition is transmitted to the legislature (or “General Court”). See generally id. amend. art. XLVIII, Init., pts. 3–5. The legislature may offer a substitute proposal, which is submitted to voters as an alternative to the initiative. Id. amend. art. XLVIII, Init., pt. 3, § 2.

√ Veto Referendums

The people of Massachusetts also reserve the referendum power to submit laws enacted by the General Court for popular ratification or rejection. See Mass. Const. amend. art. XLVIII, Ref., as amended by amend. arts. LXXIV, LXXXI. Certain matters are excluded from the referendum process. See id. amend. art. XLVIII, Ref., pt. 3, § 2 (excluding, e.g., laws relating to religion and appropriations for ordinary commonwealth expenses).

√ Legislatively Referred Amendments

An amendment to the state constitution proposed by the legislature must be approved by Massachusetts voters. Mass Const. amend. art. XLVIII, Init., pt. 4, §§ 4–5, as amended by amend. art. LXXXI, § 1.

Election Timing

The exact timing of an election on a ballot measure may depend on the type of measure, but the Massachusetts Constitution requires that measures be submitted at “state elections.” Massachusetts statutes distinguish state elections from primaries, e.g., Mass. Gen. Laws ch. 54, § 43A, and do not contemplate state ballot questions being submitted to voters at special elections. See generally Mass. Gen. Laws ch. 54.

• A statutory initiative petition is first transmitted to the state legislature. Const. amend art. XLVIII, Init., pt. 3, § 1. If the legislature fails to enact the proposal by the first Wednesday in May, a group of voters (at least 0.5% of those voting for Governor in last biennial election) may submit a petition to place the initiative on the ballot during a specified period in June and July. Id. amend. art. LXXXI, § 2. After receiving this (second) petition, the State Secretary must place the initiative on the ballot at the “next state election.” Id.
• The State Secretary must submit a veto referendum to the people at the next state election to take place at least 60 days after the referendum petition is filed. amend. art. XLVIII, Ref., pt. 3, § 3; id. amend. art. LXXXI, § 4.
• For constitutional initiatives and legislatively referred amendments, the proposed amendment is first brought before a joint legislative session. amend. art. LXXXI, § 1. A proposed amendment is referred to the subsequent General Court, and then to voters, as follows. Id. amend. art. XLVIII, Init., pt. 4, §§ 4–5.
  • A constitutional initiative is referred to the next General Court if it receives the affirmative votes of at least ¼ of all elected members. Mass. Const. art. XLVIII, Init., pt. 4, § 4. If it again receives the approval of at least ¼ of all members, it is submitted to the people at the “next state election.” Id. § 5.
    • Any legislative substitute amendments must also be approved by ¼ of all members of the General Court.
    • Unlike legislatively referred amendments, constitutional initiatives must be approved by not just a majority of the electors voting thereon, but also by at least 30% of the total number of ballots cast, election wide. See id.
  • A legislatively referred amendment is referred to the next General Court if it receives the affirmative votes of a majority of all elected members. amend. art. XLVIII, Init., pt. 4, § 4. If it again receives the approval of a majority of all elected members, it is submitted to voters at the “next state election.” Id. § 5.

BALLOT PREPARATION

What is included on the ballot, and who prepares it?

The ballot for any statewide ballot measure in Massachusetts must include the following.

• Fair, concise summary of the measure prepared by the Attorney General.
• Fair and neutral, one-sentence statements describing the effect of a yes or no vote, prepared jointly by the Attorney General and the State Secretary.

Mass. Gen. Laws ch. 54, §§ 42A, 53; Mass Const. amend. art. XLVIII, Gen. Provs., pt. 3; id. amend. art. LXXIV, § 4.

INFORMATION TO VOTERS

What information is provided to voters before the election, and how?

Publication

Under Massachusetts statutory law, by the second Wednesday in May, the State Secretary must publish in the Massachusetts Register a copy of all ballot question titles, one-sentence statements describing the effect of a yes or no vote, and fiscal effect statements: which triggers a judicial review period, discussed below. See Mass. Gen. Laws ch. 54, § 53.

In addition, before every state election, the State Secretary must send each measure’s ballot form to every Massachusetts newspaper listed in the Directory of New England Newspapers and Periodicals, to be used at the discretion of said newspapers. Id. § 52.

Voter Information Pamphlet

The State Secretary must print and send a guide to residential addresses included on compiled lists of registered voters. Mass. Gen. Laws ch. 54, § 53; Mass Const. amend. art. XLVIII, Gen. Provs., pt.4; id. amend. art. LXXIV, § 4. For each statewide ballot measure, the guide must include the following.

• Full text of the measure. Gen. Laws ch. 54, § 53; Mass Const. amend. art. XLVIII, Gen. Provs., pt. 3; id. amend. art. LXXIV, § 4.
• Fair, concise summary of the measure prepared by the Attorney General (which also appears on the ballot). Mass. Gen. Laws ch. 54, § 53; Mass. Const. amend. art. LXXIV, § 4.
• Ballot question title, prepared jointly by the Attorney General and the State Secretary. Gen. Laws ch. 54, § 53.
• Fair and neutral, one-sentence statements describing the effect of a yes or no vote, prepared jointly by the Attorney General and the State Secretary.
• Fiscal effect statement describing the measure’s consequences for state and municipal government finances, prepared by the Secretary of Administration and Finance.
• Arguments for and against the measure (150 words or less, each). Mass. Const. amend. art. XLVIII, Gen. Provs., pt. 4; Gen. Laws ch. 54, §§ 53–54.
  • Arguments may be submitted on or before the tenth day after the measure is received by the State Secretary for submission to voters. Gen. Laws ch. 54, § 54.
  • The State Secretary must seek arguments from the principal proponents and opponents of each initiative, referendum, legislative amendment, or legislative substitute. See id. If no argument is submitted, the State Secretary must supply the missing argument.
• (If applicable, for initiatives only) The majority and minority reports generated by the legislative committee to which the initiative was first transmitted, including the names of each legislative member. Mass Const. amend. art. XLVIII, Init., pt. 3, § 1; amend. art. LXXIV, § 4.

JUDICIAL REVIEW

When and how can the court step in?

The State Secretary must publish in the Massachusetts Register, and make available to the public, a copy of all ballot question titles, one-sentence statements describing the effect of a yes or no vote, and fiscal effect statements. Mass. Gen. Laws ch. 54, § 53. Any group of 50 voters may petition the Supreme Judicial Court for Suffolk County to require that a title or statement be amended, so long as the petition is filed within 20 days after the publication. See id. The court may issue an order requiring amendment by the Attorney General and the State Secretary “only if it is clear that the title, 1-sentence statement or fiscal effect statement in question is false, misleading or inconsistent with the requirements” of the relevant provisions. Id. The court has indicated it does not have authority to order amendment of the Attorney General’s summary, however. See, e.g., Hensley v. Attorney General, 53 N.E.3d 639, 654 & n.26 (Mass. 2016).

Sample case: Hensley v. Attorney General, 53 N.E.3d 639 (Mass. 2016) (finding that Attorney General’s summary of initiative measure was not unfair, but that one-sentence “yes” statement and ballot title were clearly misleading).