Voters in Nebraska and Arizona will see competing measures on their November ballots — in one case about abortion, in the other about primaries. If voters approve all of them, the decision on how to proceed could be left to the courts.
Arizona and Nebraska, like more than a dozen other states, have constitutions that say if two or more conflicting ballot measures pass in the same election, the measure with the most favorable votes takes precedence.
That sounds simple. But it’s actually a bit more complicated.
That’s because the Arizona and Nebraska constitutions apply the most votes rule to the specific conflicting provisions within each measure – opening the door to legal challenges that require a court to decide which provisions are contradictory and whether some parts of each measure can take effect.
The scenario may sound strange. But it’s not unusual.
Conflicting ballot measures “come up often enough, and the highest vote rule is used enough, that it’s worth some consideration,” said Michael Gilbert, vice dean of the University of Virginia School of Law, who analyzed conflicting ballot measures as a sophomore decades ago, when his curiosity was piqued by competing policies in California.
What’s going on in Nebraska?
After the U.S. Supreme Court struck down a nationwide right to abortion, Nebraska passed a law last year banning abortions starting at 12 weeks of pregnancy, except in medical emergencies or if the pregnancy resulted from sexual assault or incest.
Abortion rights advocates collected initiative signatures for a proposed constitutional amendment that would create “a fundamental right to abortion until fetal viability or when necessary to protect the life or health” of a pregnant woman without government interference. Fetal viability is generally expected to take effect sometime after 20 weeks, similar to abortion rights measures before voters in eight other states.
Abortion opponents, meanwhile, were pursuing their own initiatives to fundamentally anchor the current law in the constitution. This measure would ban second- and third-trimester abortions except in medical emergencies or in pregnancies resulting from sexual assault or inducement.
The Nebraska Constitution states that the winning measure with the most votes shall become law “as to any conflicting provisions.” State law states that the governor must proclaim which provision is of greatest importance. Lawsuits could follow.
If the measure providing a right to abortion until the fetus is viable receives the most votes, it could be construed as completely inconsistent with the restrictive measure and thus prevail in its entirety, said Brandon Johnson, an assistant professor of law at the University of Nebraska.
However, if the restrictive measure gets the most votes, a court might not find it conflicts with the abortion rights measure until the second and third trimesters, Johnson said. This could lead to a scenario where abortion is highlighted as a fundamental right in the first trimester, but restricted in the second and third trimesters.
“There is a good legal argument, based on the language that talks about conflicting provisions of the measures, that you can synchronize the two,” Johnson said.
What’s going on in Arizona?
Arizona, like most states, currently uses partisan primaries to select candidates for the general election.
The Republican-led Legislature, in a partisan vote, placed an amendment on the November ballot that would enshrine partisan primaries in the state constitution and reaffirmed that any party can put forward a candidate for any office in the general election.
A citizens’ initiative wants to change the current voting method. It would create open primaries, with candidates from all parties appearing on the same ballot and advancing multiple candidates to the general election. It would be up to the Legislature or the Secretary of State to establish requirements for exactly how many people should be transported. If at least three of them make it to a general election, the winner of the general election will be determined by ranked-choice voting.
The Arizona Constitution states that the winner of the election with the most votes shall prevail “in all details upon which conflict arises.”
In the past, the Arizona Supreme Court has used this provision to consolidate portions of competing measures. For example, in 1992, voters approved two amendments dealing with the state mines inspector. One measure extended the term of office from two to four years. The other measure, which received more votes, circumscribed the mine inspector’s term to four to two years.
In a case decided ten years later, the Supreme Court ruled that parts of both measures should take effect and ruled that the mines inspector could serve a four-year term. That could have implications for future elections in Arizona if voters approve both competing measures on this year’s ballot.
“The court is really doing everything it can to reconcile the two,” said Joseph Kanefield, a lawyer and former state election official who teaches election law at the University of Arizona. The court will seek to avoid the complete deletion of a measure unless it clearly determines that both measures cannot exist together.
What happened in other states?
When Gilbert’s curiosity about conflicting ballot measures was piqued, he teamed up with a fellow student at the University of California, Berkeley to examine 56 cases of competing ballot measures in eight states between 1980 and 2006. In some cases, the measures appeared to come into direct conflict. In other cases, the measures simply addressed similar issues.
Their research found that the measure that often received the most positive votes was the one that made the least changes to the status quo.
But sometimes the maximum vote rule never comes into play because voters approve one measure and reject the other. Or voters reject both measures.
In 2022, two competing proposals to legalize sports betting were presented to California voters. Advocacy groups spent about $450 million to promote or condemn the proposals, a national record for ballot measures. But both were overwhelmingly defeated.
In 2018, Missouri voters faced three different citizen-initiated proposals to legalize medical marijuana. Voters approved one and rejected two others.
“It’s not uncommon to have conflicting measures,” said John Matsusaka, executive director of the Initiative and Referendum Institute at the University of Southern California. “But my observation is that voters usually understand the game and support one and oppose the other.”
