Protecting Sportsmen’s Interests in Ballot Initiatives and Referenda

Introduction

Ballot initiatives are a method of creating, amending, or repealing statutory or constitutional provisions through popular vote rather than through action by the legislature. For an initiative to be placed on the ballot, a minimum number of petition signatures must be obtained. Across the United States, twenty-four states and the District of Columbia provide for an initiative process. Of these twenty-four states, eighteen allow initiatives to propose constitutional amendments, and twenty-one states allow initiatives to propose statutes. Unfortunately, when fish and wildlife management decisions are driven to the ballot, they are ultimately in the hands of voters instead of the recognized experts at state wildlife agencies and are thus made by popular vote rather than being based on scientific principles. Consequently, wildlife management based on ballot initiatives can tie the hands of professional wildlife managers by restricting adaptive tools and methods necessary to achieve balanced and thriving ecosystems. These initiatives circumvent the legislative and regulatory process that allows for input by professionals, opportunities for revisions, and considerations of broader impacts within the state’s overall science-based management plan.

The initiative process varies greatly from state to state, with different rules dictating both the subject matter allowed for an initiative petition, the process for which it is eligible for the ballot, and the passage requirements. These variations are broadly known as subject matter restrictions, distribution requirements, and supermajority requirements. Subject-matter restrictions limit the issue areas that can be addressed by ballot initiatives, while the latter two variations aim to create a more equitable process for ballot initiatives by requiring statewide voter engagement. Twelve states with a ballot initiative process employ some subject matter restrictions, sixteen states currently have some form of distribution requirements, and a small patchwork of states employ supermajority requirements.

Issue

Subject restrictions for ballot initiatives ensure that certain subjects are protected from exclusive majoritarian rule, such as appropriations, religion, and the judiciary. Wildlife management decisions should also be protected from being decided at the ballot box due to their unique subject matter which demands expert consultation from professional managers and biologists.

In states such as Oregon and Colorado, distribution requirements simply require gathering a minimum number of signatures from any one part of the state to qualify the statutory initiative for the ballot. In states without a distribution requirement, including California, Texas, and New York, residents from population-dense areas can often satisfy the signature requirements of a petition without input from voters in other areas of the state. This can cause significant harm to voters in rural areas where wildlife management decisions are likely to have a higher impact.

Similarly, some states only require a simple majority for passage once the initiative is on the ballot. These processes allow the possibility for initiatives to qualify and/or pass without broad support and based solely on input from high population areas. The alternative supermajority requirement protects the interests of sportsmen and women. Utah’s state constitution has combined both supermajority and subject-matter requirements, providing that if a ballot initiative affects the taking of wildlife, then 66.67% of voters must approve the initiative for it to take effect. Having this heightened barrier limits any negative impact that the public can have on hunting, angling, and trapping laws in the state.

Points of Interest

• In Michigan, legislation was passed in 2014 with the support of sportsmen’s groups, including the Congressional Sportsmen’s Foundation, which states that only the Michigan Fish and Wildlife Commission, or legislature in certain cases, may make wildlife management decisions. This effectively means that ballot initiatives to manage wildlife would not be legal.
• Oregon’s Initiative Petition 3 (IP 3) is an anti-hunting and anti-agriculture ballot effort that would make harvesting any fish or game a crime. Oregon is one of the nine states with no distribution requirements. Therefore, petitioners will only need to collect 112,020 signatures to place IP 3 on the ballot, regardless of where the signatures are collected. The population of Portland as of July 1, 2022, is approximately 635,067. After a previously unsuccessful attempt to make the ballot in 2022, IP3 has been filed to be included on Oregon’s 2024 ballot.
• Colorado’s Proposition 114 was a successful ballot-based mandate to professional wildlife managers at the Colorado Parks and Wildlife Commission to promulgate a plan for wolf-reintroduction. Reintroduction will occur west of the Divide, where many rural communities will have to deal with repercussions of wolf reintroduction. In this instance, many of the affirmative votes for Proposition 114 came from areas where wolves are not going to be reintroduced.
• In 2000, Alaska proposed a constitutional amendment that would have prohibited voters from using the initiative process to “make laws that permit, regulate, prohibit taking or transporting wildlife, or prescribe seasons or methods for taking wildlife.” While unsuccessful 23 years ago, the attempt can serve as precedent for future efforts.
• In Maine, ballot initiatives cannot “vacate and reverse” administrative decisions made by government agencies, following a 2020 decision by the state’s Supreme Court. This means that science-based wildlife management decisions made by the Maine Department of Inland Fisheries and Wildlife, which is the entity in the state best equipped to make such decisions, cannot be undone through the ballot initiative process.
• In 2023, Ohio voters rejected Issue 1, which would have required that any proposed amendment to the state constitution receive 60% of the vote to pass. By rejecting Issue One, successful constitutional amendments in Ohio continue to only require a simple majority.

Language

• Alaska Constitution, Article XI: “If signed by qualified voters who are equal in number to at least ten per cent of those who voted in the preceding general election, who are resident in at least three-fourths of the house districts of the State, and who, in each of those house districts, are equal in number to at least seven percent of those who voted in the preceding general election in the house district, it may be filed with the lieutenant governor.”
• Michigan Public Act 281 of 2014: “[O]nly the Legislature or the NRC may designate a wildlife species as game and establish the first open season for a designated game species. The Legislature has the sole authority to remove a wildlife species from the list of game species. The NRC must exercise its authority under these provisions by issuing orders. The initiated law specifies that the orders must be consistent with the Commission’s duty to use principles of sound scientific wildlife management. The initiated law allows the NRC to decline to issue orders authorizing an open season for a game species if doing so would conflict with those principles.”
• Nebraska Constitution, Article III: “In all cases the registered voters signing such petition shall be so distributed as to include five percent of the registered voters of each of two-fifths of the counties of the state.”
• Utah Constitution, Article VI: “Legislation initiated to allow, limit, or prohibit the taking of wildlife or the season for or method of taking wildlife shall be adopted upon approval of two-thirds of those voting.”
• Each state differs greatly in application requirements, signature requirements, subject restrictions, options for legislative alterations, litigation, and circulator guidelines. Click here to examine requirements by state.

Moving Forward

Legislators in states with an initiative process are encouraged to enact ballot initiative subject matter restrictions to specifically exclude fish and wildlife management decisions from being eligible for the ballot. Doing so will ensure these decisions continue to be guided by science-based principles rather than emotion. If unable to pass a subject requirement exclusion, legislators are encouraged to enact supermajority or distribution requirements for sportsmen-related initiatives to ensure that those who would be most affected by the decision have more of an ability to impact the outcome of the initiatives, or to determine whether the issue ends up on the ballot in the first place.