CLEVELAND, Ohio - Issue 2, the drug price ballot initiative, failed by a historic margin on Tuesday night.
Voter support tends to break overwhelmingly one way or another on initiated statutes. The closest margin was an 11-point defeat the first time the initiated statute was attempted in 1913 for liquor prohibition.
But Issue 2's was monumental. It is the worst loss ever for an initiated statute, with a 58.5-point defeat.
At face value, the initiative - which would have required the state to pay no more for pharmaceuticals than what the Department of Veterans Affairs pays - seemed like it should've at least been competitive. High drug prices are a frequent concern for the public, and saving taxpayer money is always popular.
So what happened?
Why did it lose by so much?
The easy answer to why the initiative crashed and burned is that voters rejected the policy, but Kyle Kondik, a Cleveland-area native and political analyst at the University of Virginia's Center for Politics, said it's not that simple.
"The No side vastly outspent the Yes side and it was a ballot issue that I think fundamentally was hard to understand," Kondik said. "That's a bad combination for a statewide ballot issue."
According to Kondik, as well as Baldwin Wallace University political science professor Tom Sutton, money and confusion were key to Issue 2's defeat.
"The setup looked like this should have a decent chance," Sutton said. "But the things that went against the initiative were, one, the lopsided public spending. Pharma funded a huge campaign against the issue and that has a huge effect. And number two, as people tried to find out more, they got confused and concerned."
Both sides had a lot of money, though one side had much more. How much of a role did that play?
David Niven, an assistant political science professor at the University of Cincinnati, said money had an obvious effect.
"There's about 60 million reasons why it went down, in terms of the record spending against the proposal," Niven said.
Issue 2 marks the most expensive ballot initiative in state history, . On one side was the $1.4 billion AIDS Healthcare Foundation, a California-based nonprofit. On the other was the $400 billion pharmaceutical industry.
While the AIDS Healthcare Foundation spent a sizable $16 million, the pharmaceutical companies spent nearly $60 million, including at least $27 million running ads calling into question the validity of the proposal. The commercials said it could raise drug prices on those who don't get pharmaceuticals from the state, end discounts for veterans and cost the government money in the long run.
Was the overwhelming no vote a sign of confusion, or were voters skeptical of the issue?
According to the pundits, a little bit of both.
"The biggest factor overall, historically, is when voters are confused, they tend to say no," Sutton said. "At the end of the day that was probably the biggest factor."
Niven agreed and called it the "uninformed informed" decision - a voter doesn't know enough about the initiative, so votes it down out of caution.
"This had to be one of the most confusing proposals ever put before Ohio voters in terms of the actual, tangible, what-would-happen-if-it-passed-question," Niven said.
Voters routinely expressed confusion over what exactly the initiative would do or what its effect would be. John Green, director of the Bliss Institute of Applied Politics at the University of Akron, said that was a failing by the Yes side to convince an electorate that generally questions initiatives.
"For a ballot proposition to be successful, it has to overcome that natural skepticism that people have about the details of policy," Green said. "Most of the time, people don't see the details because it's all debated in the legislature. Ballot props certainly have their place, but there's a real burden on the Yes side to prove it will actually work."
Were there other factors that led to Issue 2's failure?
Green added that the large number of groups that came out against the initiative undoubtedly helped as well. Numerous local and statewide health care, physician and veteran organizations came out against Issue 2, as did nearly every editorial board in the state.
"Those funds were effective because the money was spent in a well-organized campaign. And also because there was such a wide array of groups in Ohio that opposed it," Green said.
Sutton added the timing of the initiative during off-year elections without statewide candidates or interest also proved a hindrance for the Yes side.
"If this had been done during a midterm or presidential year you would've had higher voter turnout and higher voter attention going on with congressional and statewide races," he said.
Could Issue 2 return to Ohio someday?
Yes. Ohioans are reluctant to pass initiatives because even if they fail, they can be brought back to the ballot at a later time, Sutton said.
"The other part of it is if you vote No and the thing goes down, it doesn't mean you can't come back and try again," he said.
Are these initiatives too easy to put on the ballot?
That depends on who you are.
Motives aside, Issue 2 was less a grassroots effort and more a case of the well-off AIDS Healthcare Foundation fighting the wealthy pharmaceutical industry.
And it's not just isolated to Issue 2.
Issue 1, more commonly known as Marsy's Law or the crime victims bill of rights, was backed by Henry T. Nicholas III, a billionaire and CEO of the Fortune 500 company Broadcom Corporation. Issue 1 passed by an 83 to 17 percent margin without much opposition.
The fact of the matter is it is difficult to bring issues - either initiated statutes or constitutional amendments - to the ballot.
Proponents must gather signatures from around the state to the tune of nearly 300,000. Those signatures must come from 44 of 88 Ohio counties. Then there are filing fees. Then secretary of state rulings. Then attorney general rulings.
It is a time-consuming and expensive process, generally backed by special interests or industries.
Steven H. Steinglass, dean emeritus at the Cleveland-Marshall College of Law at Cleveland State University, said that's led to most business interests who come into the state - marijuana, casinos and the like - to go with the constitutional method since it is harder to change once it passes.
"Because it's hard to use, interests with money say why should I try to get a statutory initiative when I can get a constitutional amendment and if I win, the victory is enshrined in the constitutional and, therefore, more difficult for anyone to take away, Steinglass said. "Ohio, more than any other state, pushes direct democracy toward constitutional changes more than statutory changes."
Niven said there is some irony in how the ballot initiative is used. Originally, it was intended as a way for the public to address issues the legislature refused to.
Now, he said, it's more about big money or big interests circumventing Columbus.
"If you have a few million dollars to spare, you can put any question you want on the ballot," Niven said. "If you have a few million to invest in petition gathering, you can pose any question you want to Ohioans. And if you do it well you can change our laws or even our constitution."
Why have ballot initiatives if they're often confusing and backed by special interests?
Steinglass said despite the shortcomings in the initiative process, they can have resounding effects, such as in Maine where voters chose to expand Medicaid under the Affordable Care Act.
"The best example I can think of last night didn't come from Ohio, but came from Maine where the governor of Maine vetoed Medicaid expansion," Steinglass said. "The petitioners in Maine pursuing an initiative were able to get the Medicaid expansion approved by the voters. It did provide its traditional function - a safety valve when the legislative process breaks down, which is what direct democracy is supposed to be."
In the case of Maine, an initiative was their only means of recourse.
"Direct democracy is not supposed to replace representative democracy," Steinglass said. Instead, it is meant as a check for the public to use against their elected officials when they fail to act."
Is there anything that could change about the process?
By design, the ballot initiative process circumvents the legislature and goes directly to the people. This has rubbed critics the wrong way at times.
"California is kind of the classic case where they have lots of ballot issues every year," Kondik said. "Some out in California would argue there is such a thing as too much democracy. At the same time, there are other states where it's very hard to get other things on the ballot. That may allow the legislature to sort of ignore public will because the public doesn't have any recourse outside the legislative process. I sort of concede to the benefits and shortfalls."
There is no real consensus about if there is a problem with initiatives - or what to do about them even if there is.
But there are ideas about how to improve the process. State Rep. Niraj Antani, a Miamisburg Republican, is toying with the idea of banning paid petition gatherers - a common tactic used to get something on the ballot.
Steinglass said lowering the threshold on initiated statues and keeping a higher standard on constitutional amendments could potentially help both the grassroots gain access to the ballot and deter business interests from using constitutional means to gain a foothold in the state, such as they did with casinos.
Niven said lowering the barrier could help, but could also have unintended consequences.
"The risk you run is the ballot gets inundated with questions and you thwart our sanity," Niven said. "Imagine two dozen questions on the ballot. As confusing as Issue 2 was, it was confusing in isolation. Imagine five of those or 10 of those."
Are other initiatives forthcoming?
For now, initiatives aren't going anywhere, and Ohio can expect to see a few in the upcoming years.
The first that's almost guaranteed is something addressing redistricting reform. The League of Women Voters is heading an initiative that would take the congressional map drawing process out of the hands of partisan legislators, though it wouldn't take it entirely out of the partisan process.
That initiative will depend on if the legislature comes to a conclusion on what to do about redistricting before 2018. A legislative group is trying to come up with a solution, but so far there isn't a plan on the table.
Marijuana is another likely subject for an initiative, and is a good example of how the initiative process works properly, Sutton said.
Support for legalizing marijuana has been steadily gaining and is at an all-time high. A CBS News poll pegged support for legalizing weed at 61 percent, including 46 percent of Republicans. Nine states have recreational marijuana programs and a further 21 have medical programs, including Ohio.
"I certainly could see marijuana - a well written marijuana issue - passing sometime soon here," Kondik. "One thing about marijuana is public opinion has really changed quite dramatically in the past couple of years."
Recreational marijuana is a generally easy sell to an electorate, especially when it's pitched as a criminal justice reform-revenue generating venture. It's passed with overwhelming margins almost everywhere it's been presented, with the closest race in Maine.
Everywhere, that is, except Ohio. But it didn't fail in Ohio in 2015 because of an antipathy toward marijuana legalization.
Instead, the 2015 initiative would have granted an absolute monopoly on marijuana sales to 10 companies.
"When people heard about the 10 buyers that would get the cartel and they would get to sell under the initiative, that turned everyone off and they voted it down," Sutton said. He added that was an example of voters seeing through campaign rhetoric to actually understand policy.