As we anticipated in an earlier post, the Massachusetts Supreme Judicial Court provided clear guidance on the appropriate time to challenge ballot initiatives in two July 6 decisions. The opinions, both authored by Chief Justice Gants, strongly urge plaintiffs to bring challenges to ballot initiatives by February 1 in election years.
In Dunn v. Attorney General, the plaintiffs contested the Attorney General’s certification of a petition that would make it unlawful for farms to knowingly confine certain farm animals in a cruel manner and for businesses to knowingly sell certain products from animals that have been so confined. The Court, however, rejected the plaintiffs’ claim that the petition does not meet the requirements of Amendment Article 48 of the Massachusetts Constitution and concluded that the petition is in proper form for submission to voters. In Hensley v. Attorney General, the Court ruled on two cases involving challenges to a petition concerning the legalization, regulation, and taxation of marijuana. Like in Dunn, the Court rejected the Hensley plaintiffs’ claim that the Attorney General erred in certifying the relevant petition. The Court concluded, however, that the title of the petition and the one-sentence statement describing the effect of a “yes” vote, which were jointly prepared by the Attorney General and Secretary of the Commonwealth, were misleading, and ordered them to amend the title and statement.
Together the decisions suggest a timeline for future plaintiffs challenging ballot initiatives and for the Attorney General and Secretary of the Commonwealth, who, pursuant to G.L. c. 54, § 53, must publish the ballot question title and “fair and neutral 1-sentence statements describing the effect of a yes or no vote” in the Massachusetts Register “by the second Wednesday in May.” In Dunn, the Court explained that, if plaintiffs file their complaints challenging petition certification pursuant to Amendment Article 48 by February 1, parties should ordinarily be able to brief issues for hearings in May. Typically, this would enable the Court to issue decisions by the end of June, before the deadline by which the Secretary of the Commonwealth must print the Information for Voters guide describing ballot initiatives, which usually falls in early July. In Hensley, the Court asked the Attorney General and the Secretary of the Commonwealth to consider preparing the ballot question titles and one-sentence statements no later than 20 days before February 1. This would allow challenges pursuant to G.L. c. 54, § 53, which must be filed within 20 days after publication, to be brought at the same time as challenges pursuant to Amendment Article 48. While the decisions would not necessarily bar plaintiffs from bringing either type of challenge after February 1, the Court cautioned that later-filed complaints would place significant time pressures on the Court and risk causing voter confusion and additional costs for the Commonwealth.