Jurisprudence

These Ballot Initiatives Could Have a Revolutionary Effect on Voting Rights and Criminal Justice in Your State

Collage of a sign reading "END GERRYMANDERING NOW!" held up outside the Supreme Court, a prisoner's hands in handcuffs, a person wearing a marijuana leaf mask and smoking a joint, and a row of people in voting booths.
Photo illustration by Slate. Photos by Reuters/Joshua Roberts, Getty Images Plus, Reuters/Dominick Reuter, and Brianna Soukup/Portland Press Herald via Getty Images.

The 2018 election is more than just a battle for Congress: It’s an opportunity for millions of voters to directly change the laws that govern their lives. On Tuesday, residents of 37 states will decide on ballot measures that would expand voting rights and enact major criminal justice reforms. They’ll decide whether to protect access to the ballot, curb partisan gerrymandering, legalize marijuana, and reduce mass incarceration. Many of these initiatives present bold reforms that lawmakers are too timid to implement themselves; a few conceal terrible policy under the guise of hazy abstractions. Below is a list of the most interesting, important, and dangerous ballot measures that voters will mull in the upcoming election.

Voting Rights

Amendment 4, Florida: This is, without a doubt, the most important ballot measure in 2018. Amendment 4 would automatically restore voting rights to offenders who have completed their sentences, unless they committed murder or sex crimes. If it passes, Amendment 4 will enfranchise about 1.5 million people. Currently, rehabilitated felons can only regain their right to vote by pleading for clemency from the governor. This rule is a relic of Jim Crow that disproportionately disenfranchises minorities and permits the governor to discriminate against blacks and Democrats. Rehabilitated offenders shouldn’t have to grovel for an outside chance at regaining their civil rights.

Question 5, Nevada: Why should citizens have to jump through hoops to register to vote? Why doesn’t the government just … do it for them? That’s the premise behind automatic voter registration, or AVR: When you interact with a government agency, the state will register you to vote, unless you opt out. It’s a simple system that 14 states and the District of Columbia have already adopted. The Nevada legislature tried too, but GOP Gov. Brian Sandoval vetoed the proposal. That sent it to Nevada voters, who will have an opportunity to approve AVR in November. Question 5 isn’t perfect: It only enrolls citizens who interact with the DMV, rather than any state agency. But it’s an excellent start that will increase voter participation as well as voter diversity.

Proposal 3, Michigan: Republicans have made it very difficult to vote in Michigan. But in November, Michigan residents will be able to make their state a leader in ballot access. Proposal 3 would establish automatic and same-day voter registration, as well as excuse-free absentee voting. It would also introduce early voting and restore straight-ticket voting. These reforms would increase the number of registered voters in the state, boost turnout, and make voting faster and easier for everyone.

Redistricting reform, multiple states: Voters will have a chance to curb partisan gerrymandering this year in Colorado, Michigan, Missouri, and Utah. Colorado’s Amendments Y and Z and Michigan’s Proposal 2 would create an independent redistricting commission to draw districts for both congressional representatives and state legislators. Utah’s Proposition 4 would do the same, though the commission would have to submit its maps to the legislature for approval. Missouri’s Amendment 1 would allow a “non-partisan state demographer” to draw state legislative districts, though legislators could alter its map.

Each of these measures would help to combat partisan redistricting, a scourge of American democracy that the Supreme Court refuses to address. They would help to ensure that politicians do not dilute the power of an individual’s vote on the basis of her political association. And they would prevent a single party from entrenching its own power by manipulating district lines. Colorado and Michigan’s proposals go the farthest in eradicating gerrymandering, but Missouri and Utah’s more modest measures would also be a major improvement.

Voter ID, Arkansas and North Carolina: Arkansas’ Issue 2 and North Carolina’s Voter ID Amendment would amend each state’s constitution to compel voters to present a photo ID at the polls. Arkansas already requires voter ID by statute, so Issue 2 is merely an attempt to protect this law from state courts. North Carolina used to require voter ID, but a federal court struck down the statute, ruling that it “target[ed] African Americans with almost surgical precision.” So Republicans pushed the requirement as a constitutional amendment—though the proposal doesn’t even say which IDs would be acceptable. Since voter fraud is essentially nonexistent in the United States, and voter ID laws mostly impact poor and minority voters, there’s no good reason to support these proposals—unless you’re a fan of voter suppression.

Criminal Justice

Marsy’s Law, multiple states: Residents of six states—Florida, Georgia, Kentucky, Nevada, North Carolina, and Oklahoma—will vote on Marsy’s Law in November, a measure designed to protect “victims’ rights.” Each version of Marsy’s Law is different, but they all guarantee a few basic safeguards for the victims of a criminal offense: the right to be notified about legal proceedings—including bond, sentencing, and parole hearings—and to speak at them; the right to be notified about the release of the accused; and the right to suppress information about the crime from the public, as well as defense attorneys.

These measures, all funded by Henry Nicholas III, are advertised as a humane, common-sense effort to preserve the dignity and privacy of victims and their families. But five states that have already passed some version of Marsy’s Law—California, Illinois, Ohio, South Dakota, and North Dakota—quickly discovered that its rules can infringe on due process and undermine law enforcement’s ability to prosecute crimes. (A sixth state, Montana, also passed a version of Marsy’s Law, but the measure was invalidated by the state Supreme Court.)

After the law passed in South Dakota, victims were held in jail for longer periods as prosecutors struggled to locate victims in advance of bond hearings. Victim advocates were barred from communicating directly with the police; victim witness assistants had less time to work with high-risk victims. Motorists could not obtain car crash reports for insurance claims due to stringent privacy rules. Police officers used the law to hide their identities after shooting civilians. The problems grew so dire that advocates of Marsy’s Law supported an amendment that limited the measure’s scope, which easily passed.

But it isn’t yet clear whether any tweaks can resolve the fundamental flaw in Marsy’s Law: It threatens to elevate the rights of victims (and their families) over those of the accused. The measure keeps legally innocent defendants behind bars for longer and restricts the amount of information that can be shared with defense attorneys—material that might prove vital at trial. It exacerbates mass incarceration by granting victims undue influence over judges, juries, and parole boards. And it makes no distinction between violent and nonviolent crimes, compelling prosecutors to comply with its onerous requirements for victims of minor misdemeanors.

Marsy’s Law remains popular throughout the country. Its legal abstractions sound appealing on paper. But the American Civil Liberties Union has vigorously opposed the measure in each state where it is introduced, and for good reason: The measure undermines the constitutional presumption of innocence and does nothing to advance the cause of justice.

Marijuana reform, multiple states: Ballot initiatives in Michigan, Missouri, North Dakota, and Utah will give residents an opportunity to loosen their states’ marijuana laws. Michigan’s Proposal 1 would legalize marijuana for adults. North Dakota’s Measure 3 would too—and it would automatically expunge convictions for marijuana-related offenses that are no longer criminal. Utah’s Proposition 2 would create a legal medical marijuana program; so would Missouri’s Proposition C. Confusingly, Missourians will also vote on two other medical marijuana initiatives, Amendment 2 and Amendment 3. The former would tax marijuana sales at a lower rate than the latter. Whichever amendment receives more votes will become law.

Cannabis reform is a key part of criminal justice reform. There are astonishing racial disparities in America’s war on pot: While blacks and whites use marijuana at about the same rate, blacks are nearly four times more likely to be arrested for pot possession than whites. In some states, they’re seven to eight times more likely to be arrested. Extreme racial disparities exist even in relatively progressive jurisdictions. Enforcing marijuana prohibition costs billions of dollars each year, yet the substance remains widely available, and a supermajority of Americans now favor its legalization. Michigan, Missouri, North Dakota, and Utah have a chance in the coming days to embrace the inevitable.

Amendment 11, Florida: Florida is the only state whose constitution flatly bars the retroactive application of criminal justice reforms. This prohibition prevents the legislature from reducing mandatory minimum sentences for those already in prison. In recent years, Florida has rolled back some draconian mandatory minimums—but the state constitution prevents the legislature from releasing offenders who would’ve completed their sentences under the new laws. This rule, which keeps thousands languishing in prison, makes no sense, and Amendment 11 would abolish it. For Floridians eager to enact real criminal justice reform, supporting Amendment 11 is a no-brainer.