Should we go to the ballot? Some considerations

Paul Ryder, Organizing Director
Updated February 17, 2009

This memo analyzes both the technical requirements for a successful citizens ballot initiative in Ohio and the political keys to victory.

The two petition-based ballot issues on the 2008 statewide ballot did not give clues to winning, since both lost for the usual reasons. The paid sick days proposal (Issue 4), pulled from the ballot by its sponsor, did provide an important lesson for citizens considering a ballot initiative: The campaign must be independent. If it is not, if it is controlled by part of the status quo, it risks being smothered by the status quo.

Under the right circumstances, a ballot issue campaign can be a powerful tactic, changing or even reversing the tide of an issue, creating new law and a new political mandate in one stroke. Under the wrong circumstances, it can be a setback.

Anyone contemplating a ballot drive should treat it with the respect it deserves. Make it your business to know the history of ballot issues and the applicable provisions of the law, and think carefully through every aspect of the proposed campaign. In ten ballot campaigns so far, Ohio Citizen Action has six victories and four defeats.

I. Signatures

What kind of ballot issue?

If you are considering a local ballot issue, consult your local charter and ordinances; every local jurisdiction is different.

Statewide, there are four kinds of ballot issues:

  • Constitutional amendment by initiative petition
    A successful signature drive puts this directly on the ballot.

  • Statutory initiative
    After an initial signature drive, a proposed statute goes to the legislature for consideration. If the legislature kills it, or does nothing, or amends it in a way not acceptable to the petitioners, a second signature drive can put it on the ballot.

  • Referendum
    Immediately after a law is passed, petitioners can put it on the ballot with a signature drive. A majority "no" vote throws out the law.

  • Measures put on the ballot by the legislature
    No signature drive is needed; these measures tend to be non-controversial.

To think through these choices, read first the primary applicable provisions of the Ohio Constitution, especially Article II, Sec. 01a-01g (initiatives and referenda), and Article XVI (constitutional amendments), and the Ohio Revised Code, Chapter 3519 (elections). Reading these sections is no substitute for competent legal advice, which you must have prior to deciding to begin a campaign. Election laws are complicated, changing and unforgiving.

How many signatures would we have to get?

It depends on what kind of ballot issue you are going for.

Type Percent of
Constitutional amendment by initiative 10% 402,276 603,414
Statutory Initiative 3% twice 120,683 twice 181,024 twice
Referendum 6% 241,366 362,048

The required percent is applied to the size of the statewide electorate, defined as the number of voters in the last gubernatorial election. In 2006, 4,022,754 Ohioans voted in the general election for governor. 10% of that is 402,276.

After you turn in the signatures, the boards of elections will scrutinize them for errors. Some signatures and some whole petitions will be rejected. The legal requirements are 'net' signatures, that is, the number of signature declared valid by the boards of elections after they have checked the petitions.

How many gross signatures you need depends on how you gather them. If you go door-to-door with a 'walking list' of registered voters, the percentage of valid signatures will be relatively high. If you collect signatures on a sidewalk downtown or outside a K-Mart, the percentage will be lower.

Under the best of circumstances, gather 50% more signatures than the required number of valid signatures. For example, since a constitutional amendment requires 402,276 valid signatures, collect 603,414.

There are different time restrictions for signature gathering for each kind of ballot issue; check the law closely.

Could we get enough signatures in time?

In the heat of a campaign it is easy to imagine a signature drive succeeding on the infectious enthusiasm of wave after wave of new volunteers. This is possible, but rare. Almost always, a signature drive succeeds through sheer organizational brute force or paid solicitors or a combination of the two.

Create a signature budget, including where they will come from, how many, and when and how many signatures you will have to turn over to the Secretary of State on what date. The signature budget requires the same accountant-like attention to detail as the campaign's money budget.

In your signature, only count those signatures over which you have direct control, including those from --

  •  your own organization,
  •  another organization you know well, if it has a good track record of gathering signatures and if it has made a firm commitment, or
  •  a hired petitioning firm with a good track record
Don't put any other promised signatures in the budget. At the beginning of the signature drive, many people and groups will promise signatures: "I'll bring in 500 signatures by the end of the month. No problem." This is great; give them encouragement, and training if necessary, and follow-up regularly. Do not, however, put these promised signatures in the signature budget until you have the completed petitions in hand. Most such promises are not fulfilled, so don't gamble the ballot drive on them. Those that do come in will be happy surprises.

Don't start the ballot drive unless your signature budget balances, that is, until you know how you're going to gather the required number of signatures on time.

The cost of the signature drive itself depends on how you gather them. It is important to cost this out carefully, but as a rough rule of thumb, expect the drive to cost about $1/gross signature collected, or $1.50/valid signature required.

II. Keys to the outcome

Will it be contested?

If you can pass the measure through the legislature or, if a constitutional amendment, have the legislature put it on the ballot, do it that way. It's much easier.

Only consider a ballot drive if powerful opponents are blocking you in the legislature. You have to assume that, if they are blocking you in the legislature, they will try to block you on the ballot as well.

It is possible, of course, that even powerful adversaries will decide not to oppose the measure once it is on the ballot. This happened, for example, in 1992 when the Ohio Roundtable, Ohio Citizen Action and other groups put term limits on the Ohio ballot. State House lobbyists and incumbents hated the proposal, but saw that no amount of money on TV ads could stop the measure from winning. They folded.

Notwithstanding this possibility, you must assume at the outset that there will be a tough contest.

Is the issue already well-defined in the voters' minds?

If voters already have a fix on what this is about, neither side will have much success in changing their minds, regardless of how many TV ads they buy. If not, then there will be a race by the two sides to define it in voters' minds first; whoever wins this race wins the vote.

Do you have enough money to win?

It costs a lot of money to run a ballot issue campaign, but not as much as some think. The opponents might spend $5 million to $10 million on television ads, but this does not mean that you have to spend that much to win. You just need to spend enough to get your message across to the voters.

Ohio is one of the four toughest states in which to do this. The other three are Texas, Florida and California. In these four big states, you can't buy TV time in the one dominant TV market because there isn't one. There are a half-dozen important media markets to buy time in, and that is costly.

In Ohio, all other things being equal, it costs at least $1.5 million to get your message across to the voters. If you can raise that much, and the other factors are in your favor, you can beat anyone. In the 1997 workers compensation referendum campaign, for example, a $2.4 million 'no' campaign beat a $7.8 million 'yes' campaign, in 87 out of 88 counties, and by 57% to 43% statewide.

As with the signature budget, do not begin the campaign unless the money budget balances, that is, you know where the money is going to come from on time.

Are the proposal and the message simple?

Given the little time voters have to concentrate on the issue, and the practical difficulties of reaching millions of them in a few weeks, a complicated message simply won't register with enough people.

Further, if you need a 'yes' vote to win, and your proposal is complex, the opponents will be much more likely to find some detail in an obscure provision that they can twist beyond recognition, and then use to attack the whole thing.

Legislators pass many complicated bills; voters don't.

Is this a "yes" vote or a "no" vote?

Voters are properly cautious. If they are not sure about an issue, they will vote 'no'. This gives a big advantage to the 'no' side in a ballot issue campaign. They don't need to make a solid case against the issue, or even have any credibility. All that is required is to sow enough doubt or confusion in the voters' minds, and they win.

III. Clues from history

Between 1950 and 2006, forty-five statutory initiatives, constitutional amendments and referenda have been put on the ballot by petition. Nine won: six single measures and the three term limits amendments.

For the purpose of learning how citizens can win, we can discard two of these:

  •  In 1977, voters passed a constitutional amendment repealing election-day voter registration. The measure had been put on the ballot with signatures gathered by the Republican Party. GOP Secretary of State Ted Brown wrote a ballot summary which hid its real purpose, saying it would "provide that a person is entitled to vote at all elections if he has been registered to vote for 30 days and has the other qualifications an an elector." 52% of the electorate voted for this seemingly innocuous proposal. When voters learned what Brown had done, they passed a constitutional amendment -- put on the ballot by the legislature -- to give the job of writing ballot summaries to the Ballot Board, of which the Secretary of State was only one member.

  •  The 1994 pop tax issue won with $8 million of soda pop industry money buying TV ads promoting it, while opponents spent $150,000. It was a simple special-interest steamroller.

The other seven winners give us useful clues. They tell us under what circumstances citizens can win an Ohio ballot issue:

  •  Term limits (1992) was uncontested, pre-defined in the voters' minds, with a simple proposal and message. Given these strengths, it didn't require a threshold of TV dollars, and it didn't matter that it required a 'yes' vote.

  •  The workers comp referendum (1997) had the threshold amount of TV money, a simple message of worker safety, and only needed a 'no' vote to win. These advantages prevailed in a highly contested campaign in which the losers outspent the winners by 3-to-1.

  •  The definition-of-marriage issue (2004) was pre-defined in voter's minds as a moral statement of little practical consequence, and the opposition was weak.

  •  The minimum wage increase (2006) was similar to the term limits issue in that it was over before it began. It was so well-defined that proponents could win without spending anything on television or radio. The issue was --

    1. Weakly contested: Opponents spent $1,557,763 on media. That would be just enough to convey a simple convincing message. The opponents' message, however, was anything but simple or convincing: "Issue 2 is more than the minimum wage . . . an open invitation to identity theft and fraud . . . release your personal payroll records . . . on the internet for thieves around the world".
    2. Well-defined in voters minds before the campaign started. There was a general awareness of a big problem, showing up in many ways, such as grown children moving back home to save money, Wal-Mart employees on welfare, or the "shrinking middle class." The Ohio measure was part of a nationwide trend, winning easily in six of six states this year: Arizona (66% to 34%), Colorado (53% to 47%), Missouri (76% to 24%), Montana (73% to 27%), Nevada (69% to 31%), and Ohio (56% to 44%).
    3. Proponents had enough money for a strong television buy, but instead spent it all on get-out-the-vote activities, which they believed would benefit all Democratic candidates. These expenditures included "robocalls" ($345,735), mailings ($529,950), and get-out-the-vote canvassing ($907,808 to Citizens Services, part of New Orleans-based Association of Community Organizations for Reform Now -- ACORN.
    4. The proposal and the message were simple: Everyone knows what a minimum wage is.
    5. The issue required a "yes" vote, which is typically more difficult to win, but the other keys to winning were so strong that it didn't matter.

  •  The smoking ban issue (2006) was historic: In 43 Ohio ballot campaigns by petition since 1950, it marked the first example of a contested issue, requiring a 'yes' vote, in which the citizens side had a significant amount of money for television ads and a simple message. Its passage was not only a big victory for public health, it showed the way for future citizen initiatives.

    1. It was contested, with the tobacco industry spending $3,116,562 on media. The main tactic used by opponents was a competing similar-sounding ballot issue. The competing issue was a Constitutional amendment, rather than the statutory change mandated by the smoking ban. Accordingly, had both issues won, the Constitutional measure would have overridden the statutory change, and had both lost, the status quo would continue. The only way the smoking ban could prevail would be if the voters could pick their way through the ballot, voting for the smoking ban and against the competing similar-sounding issue.
    2. The issue was well-defined in voters minds long before the campaign began. The dangers of second-hand smoke have been understood for decades.
    3. Citizen proponents had a significant amount of money to get their message across to the voters. The $1,272,358 they spent on media fell short of the $1.5 million conventional wisdom says is required to get a message across to Ohio voters. In this case, it didn't matter because of the considerable free news coverage of the trick the tobacco industry was trying to play on Ohio voters. Given this, and the low credibility of the tobacco industry, every television message for the industry-sponsored measure served as a reminder to voters not to be tricked.
    4. The citizen campaign had the self-discipline to keep their proposal and message simple.
    5. As above, to win, the issue required both a 'yes' vote for one issue, and a "no" vote on another, so it had to rely on an attentive, educated electorate.

  • In 2008, both measures put on the state ballot by petition failed.

    The payday lending referendum (Issue 5), was sponsored by the payday lending industry, which put $20,653,933 into the campaign to pass it. They were opposed by a grassroots campaign which raised only $547,413. If money were all that mattered, the payday loan industry would have prevailed easily. Instead it was drubbed statewide, 64% - 36%, and in 87 of 88 counties. The issue was well understood by the voters before the campaign began, and they had a strong antipathy for predatory lenders. In addition, Ohio newspaper editorial boards leveled tough attacks on the lenders. This was too much for the industry to overcome.

    The casino gambling constitutional amendment (Issue 6) became an all-out TV war between gambling interests, with $25,693,401 in favor and $38,688,978 against. The measure failed, 38% - 62%, not because of the spending differential but because Ohio voters have set views on the subject. The 2008 ballot issue was the fourth time since 1990 that Ohio voters had rejected a gambling measure.

    The 2008 election also featured an issue that didn't appear on the ballot: Issue 4, the paid sick days measure. The Service Employees International Union had gathered sufficient signatures for it to appear on the ballot. On September 4, however, the union pulled the measure, bowing to pressure from Governor Ted Strickland and other Ohio Democratic Party officials. The lesson for citizens considering a ballot issue is that the campaign must be independent. If it is not, if it is controlled by a part of the status quo, it risks being smothered by the status quo.