Ballot Measures

Published:  July 31, 2018


Ballot measures are a risky way of making law. Proponents argue that ballot measures are the most accurate representation of the will of the electorate. Detractors argue that voters often aren’t knowledgeable about nuanced issues and ballot measures are not always written clearly enough for voters to understand the question presented. In some instances, voters will vote in favor of ballot measures that sound good on paper, but may have consequences the voters can’t foresee. Many of these arguments were raised last month when the legislature passed the “Grand Bargain” legislation. Business leaders were forced to compromise on some of the issues in the legislation due in large part to popular support for ballot measures that would impose a much greater burden. While the “Grand Bargain” legislation took some of these ballot measures off the table, at least one measures that may affect your business remains on the ballot for November, especially if your business has public bathrooms. The measure is “Question 3,” which will decide whether to repeal protections for transgendered individuals in places of public accommodation.

In July 2016, Governor Baker signed into law new legislation that gave transgendered individuals the right to use public restrooms and locker rooms consistent with their gender identities. The legislation was approved by a 117-36 vote in the Mass. House of Representatives and approved by a voice vote in the Mass. Senate. In November, Question 3 will ask voters whether or not the law should be repealed. A “yes” vote would keep the law as is. A “no” vote would repeal the law.

According to a recent WBUR poll, approximately 52% of polled voters oppose the effort to repeal this law (41% strong oppose, 11% somewhat oppose) and approximately 38% support the effort to repeal (24% strong support, 14% somewhat support) with approximately 11% undecided. However, this WBUR poll demonstrates one risk associated with ballot measures: clarity of language.

Although the ballot measure is related to a proposed “repeal” of the law, a “yes” vote opposes the repeal. This language poses a major risk of misunderstanding the questions. Voters will essentially be asked to state: “Yes, I do not support the repeal,” or “No, I do support the appeal.” This raises serious questions about whether poll numbers accurate represent the current support/opposition of the ballot measure, which is particularly worrisome in what appears to be a relatively close vote.

It will be necessary to monitor public support for the ballot measure. With the 4.4% margin of error and 11% undecided on the WBUR poll, supporters of repeal could be closer to 50% than anticipated. As November approaches, it is likely that interest groups on both sides will pour large sums of money into campaigns on both sides. It is advisable to keep tabs on this situation going forward.

If you would like more information, or have any questions on any aspect of labor and employment law, please contact the attorneys at Royal, P.C.