Recent Developments in the “Related Subjects” Requirement for Ballot Questions
By Meredith G. Fierro
When Massachusetts voters went to the polls this past November, their ballots included initiative petitions regarding alcohol licensing and dental insurance. But before those petitions made it to the ballot, each had to survive a legal challenge at the Supreme Judicial Court. The focus of those respective legal challenges was the Attorney General’s threshold conclusion that each petition contained only “related subjects” under Article 48 of the Massachusetts Constitution. Yet while these two petitions were found to be properly certified as containing only “related subjects,” the Court struck down two other petitions (regarding ride-share companies) on the basis that they did not contain “related subjects.”
These recent rulings provide new and valuable insight into the Court’s interpretation of Article 48’s related subjects requirement. Legal challenges to the Attorney General’s ballot question certifications have become more common in recent years, making it essential for both proponents and opponents of potential ballot questions to understand the nuances of the Court’s “related subjects” jurisprudence.
Under Article 48, every proposed initiative petition must comply with the following requirements before it can be certified by the Attorney General: (1) the measure must be in “proper form;” (2) it may not be substantially the same as any measure submitted in the past two statewide general elections held in even-numbered years; (3) it must not contain subjects specifically excluded from the initiative process; and (4) it must contain only subjects “which are related or . . . mutually dependent.” Litigation involving the first two prongs is relatively rare, as is litigation over whether a particular measure involves a subject “excluded from the popular initiative” (given that the list of excluded topics is established in Article 48 itself). Consequently, much of the recent litigation over the constitutionality of proposed initiative petitions has been based on the “related or . . . mutually dependent” prong of Article 48, focusing primarily on the “related” (rather than the “mutually dependent”) language.
Over the past two decades, the Supreme Judicial Court has articulated the “relatedness” test in various ways, characterizing it as a search within a given initiative petition for a “general subject,” for a “common purpose,” for a “uniform statement of public policy,” or for a proposal sufficiently coherent to be voted on with a simple “yes” or “no” vote. See, e.g., Oberlies v. Attorney Gen., 479 Mass. 823, 830 (2018), Carney v. Attorney Gen., 447 Mass. 218, 226-31 (2006) (“Carney I”); Mass. Teachers Ass’n v. Sec. of the Commonwealth, 384 Mass. 209, 219 (1981). Of course, “[a]t some high level of abstraction, any two laws may be said to share a ‘common purpose.’” Carney I, 447 Mass. at 226. The Court has thus cautioned that “relatedness cannot be defined so broadly that it allows the inclusion in a single petition of two or more subjects that have only a marginal relationship to one another, which might confuse or mislead voters, or which could place them in the untenable position of casting a single vote on two or more dissimilar subjects.” Abdow v. Attorney Gen., 468 Mass. 478, 499 (2014). This determination is somewhat subjective, and the Court has emphasized that it is “not susceptible to bright-line analysis.” Carney I, 447 Mass. at 226. As a result, it can be difficult for practitioners to predict how the Court might view the internal relatedness of a given petition.
The 2022 Challenges
In the first of the three 2022 challenges, several registered voters opposed the Attorney General’s certification of a proposed petition to amend existing law involving retail sales of alcohol. Colpack v. Attorney Gen., 489 Mass. 810 (2022). The Supreme Judicial Court held that while the initiative petition contained “a variety of provisions affecting the licensing of retail sales of alcohol for off-premises consumption, the formula for assessing fines for violations of the licensing laws, and the conduct of a transaction for the sale of alcohol,” it nonetheless satisfied the related subjects requirement because its provisions formed part of an “integrated scheme” that furthered a common public policy goal. Drawing a distinction with prior cases, including Gray v. Attorney General, 474 Mass. 638 (2016), the Court found that the petition did “not yoke together substantively distinct subjects unrelated to a consistent public policy,” but instead centered on a “common purpose”: “loosening some of the current restrictions on the number and allocation of licenses for the retail sale of beer and wine for off-premises consumption, while taking steps to mitigate the potential negative effects of this expansion.” Id. at 818. The Court rejected the opponents’ argument that the petition “impermissibly combine[d] multiple contradictory positions,” reasoning that the various subjects were “operationally related” because they “arguably serve[d] to moderate the effects” of increasing the number of off-premises licenses and range of potential purchasers. Id. at 818-19. While the initiative petition made it to the ballot, it was ultimately rejected by voters.
The initiative petition in Clark v. Attorney General, 489 Mass. 840 (2022) involved a proposal to amend existing laws governing dental insurance benefits. The Supreme Judicial Court rejected the claims of two registered voters that the initiative petition impermissibly combined policies on two unrelated subjects: first, creating mandatory “medical loss ratios” (essentially, establishing required minimum expenditures by insurers on dental claims), and second, promoting insurer transparency. Id. at 845-46. The Court instead determined that the various provisions furthered a cognizable “common purpose,” which it identified as “enabling the [insurance] commissioner to implement and monitor compliance with the new [medical loss ratio] scheme.” The Court concluded that the insurer transparency provisions contributed to this common purpose because they anticipated and mitigated a potential consequence of the new minimum expenditure requirement. Id. at 847. After this petition was placed on the ballot, voters approved it by a wide margin.
Finally, in Koussa v. Attorney General, 489 Mass. 823 (2022), the Supreme Judicial Court struck down on relatedness grounds two similar initiative petitions regarding ride-share companies. Both petitions sought to define and regulate the contract-based relationship between ride-share companies and app-based drivers. Specifically, the petitions proposed to: (1) deem app-based drivers to be independent contractors (as opposed to employees or agents) for all purposes under Massachusetts law; (2) require ride-share companies to provide a set of benefits and protections to workers (including minimum earnings, paid sick leave, paid family and medical leave, and on-the-job injury insurance); (3) prohibit ride-share companies from discriminating against app-based drivers; and (4) prohibit ride-share companies from deactivating workers’ access to a ride-share platform for reasons not specified in their contracts (and provide a right to appeal a deactivation). One of the two petitions also required ride-share companies to mandate paid driver safety training. The Attorney General certified both petitions as containing only related subjects.
In rejecting the petitions as failing Article 48’s related subjects requirement, the Court focused on what it characterized as “vaguely worded provisions placed in a separate section near the end of the laws” that classified app-based drivers as independent contractors for purposes of third-party lawsuits. The Court concluded that including these provisions presented voters with a “substantively distinct policy decision” that went “well beyond the contract-based relationship between [ride-share] companies and app-based drivers, and the compensation and benefits associated therewith.” Id. at 829-30. The Court acknowledged that the Attorney General and the proponents both disputed the opponents’ claim that the challenged provisions would affect private tort litigation, but nevertheless interpreted the provisions in favor of the opponents, concluding that “any residual doubts about the meaning of an obscurely drafted petition must be resolved against the proponents.” Id. at 834.
The Attorney General and the proponents also argued that any effect on private tort litigation was a “downstream consequence” of the permissible common purpose of defining the contract-based relationship between app-based drivers and ride-share companies, a rationale that had allowed previous petitions (including those in Abdow and Albano v. Attorney General, 437 Mass. 156 (2002)) to survive relatedness challenges. The Court distinguished these cases, however, reasoning that “[a]n express instruction or directive in an initiative petition is different from a consequential effect.” Id. at 824.
Lessons and Future Implications
With Colpack and Clark, the Supreme Judicial Court reaffirmed its view that the Article 48 “related subjects” requirement is satisfied where an initiative petition proposes an integrated scheme to accomplish a unified public policy goal. See Weiner v. Attorney Gen., 484 Mass. 687, 693 (2020) (upholding certification of initiative petition that “proposed [a] scheme to lift restrictions on off-premises licenses for the retail sale of alcoholic beverages”). In future cases, counsel for proponents of an initiative petition would be wise to scrutinize their petition prior to filing to ensure that each individual provision contributes to a common “integrated scheme.”
In Koussa, however, the Supreme Judicial Court appeared to inject two new factors into the relatedness inquiry—namely, the clarity of a petition’s provisions and the placement of those provisions within the petition itself. Emphasizing the importance of preventing voter confusion, the Court held that for purposes of the related subjects inquiry, any ambiguity in a petition would be “resolved against the petition’s proponents,” id. at 520. While this standard appears to have general applicability, it could potentially be limited to instances where the Court believes the intent of the drafters was obfuscation. The Court’s contention that certain provisions were “bur[ied]” at the end of the petitions with “alluring provisions” in front also signals that it may more closely review a petition’s organization to evaluate the “risk that voters will be confused and misled.” Id. Both of these factors could serve as additional avenues for challenging an initiative petition in the future.
Because ballot question challenges generally arise only every two years, the number of ballot question decisions is relatively small. The Supreme Judicial Court’s decision in Koussa therefore has outsized importance. Going forward, counsel for proponents and opponents should carefully consider the issues of clarity and placement of a petition’s provisions when crafting, defending, or challenging future initiative petitions.
Meredith G. Fierro is an associate at CEK Boston, P.C., where she focuses her practice on government and administrative law, white-collar criminal defense, and appellate litigation. She was involved in representing the proponents of the ride-share petition at the Attorney General certification stage prior to the challenge in Koussa.
 See also Oberlies, 479 Mass. at 830 (2018) (upholding certification of initiative petition that proposed a scheme to establish and enforce nurse-to-patient ratios in facilities in the Commonwealth); Hensley v. Attorney Gen., 474 Mass. 651, 654 (2016) (upholding certification of initiative petition that “la[id] out a detailed plan to legalize marijuana (with limits) for adult use and to create a system that would license and regulate the businesses involved in the cultivation, testing, manufacture, distribution, and sale of marijuana and that would tax the retail sale of marijuana to consumers.”).