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US voters consider contentious ballot measures amidst presidential race

[JURIST] Voters in 36 US states considered more than 160 initiatives and referenda [MarketWatch report] at the polls Tuesday, including ballot measures dealing with gay rights, abortion, affirmative action and illegal immigration [JURIST news archives]. Probably the most closely watched ballot measure is in California, where voters will decide whether to effectively overturn a decision by that state's Supreme Court striking down [JURIST report] a ban on same-sex marriage as violating the California Constitution. Proposition 8 [text and materials; live unofficial results], which was placed on the ballot [JURIST report] by citizen initiative, would amend the state constitution to provide that "[o]nly marriage between a man and a woman is valid or recognized in California." The measure has generated more than $60 million in contributions [JURIST report] to committees representing both sides of the issue - a figure believed to be a US record. Voters in Arizona [Proposition 102 text, PDF; live unofficial results] and Florida [Proposed Constitutional Amendment 2 text, PDF; live unofficial results] also will consider proposed state constitutional amendments prohibiting same-sex marriage. More than half the states have already adopted similar amendments [NCSL list], while most others have defined marriage by statute. In 2006, Arizona became the first state to defeat [JURIST report] a state constitutional amendment banning same-sex marriage. This year's ballot in Arkansas [Proposed Initiative 1 text, PDF; live unofficial results] will include a measure that would prohibit gays, lesbians and other unmarried cohabiting couples from becoming either foster parents or adoptive parents [JURIST report].

Voters in two states weighed additional restrictions on abortion. In South Dakota, Initiated Measure 11 [PDF text; live unofficial results] would prohibit abortion except in cases of rape, incest and "substantial and irreversible risk" to a woman's health. South Dakota legislators last year rejected [JURIST report] a bill to that effect that was viewed as a vehicle to challenge US Supreme Court decisions in Roe v. Wade and subsequent cases. In California, Proposition 4 [text and materials; live unofficial results] would amend the state constitution to require that a physician notify a parent or legal guardian of an unemancipated minor who has sought an abortion and wait 48 hours before performing the procedure. The amendment contains narrow exceptions, including waiver by a court based on clear and convincing evidence of the minor's maturity or best interests. While not addressing abortion specifically, a Colorado initiative [Amendment 48 text and materials; live unofficial results] would amend the state constitution to define "person" to include "any human being from the moment of fertilization." In Michigan, a proposed constitutional amendment [Proposal 08-2 text, PDF; live unofficial results] would "ensure that Michigan citizens have access to stem cell therapies and cures" by permitting embryonic stem cell research under certain conditions while preserving the state's ban on human cloning. A life-and-death issue will also be on the ballot in Washington, where Initiative Measure 1000 [text and materials; live unofficial results] would allow terminally ill, legally competent adults to obtain lethal prescriptions without exposing themselves, their physicians or others to criminal penalties. The measure is modeled on neighboring Oregon's Death with Dignity Act [official materials], enacted in 1997 and upheld [JURIST report] by the US Supreme Court in 2006.

Measures that would prohibit governmental agencies from discriminating or granting preferences on the basis of race and sex appear on the ballot in two states. In Colorado, an initiative [Amendment 46 text and materials; live unofficial results] would amend the state constitution to forbid all state agencies, including public universities and political subdivisions, "from discriminating against or granting preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting," with certain exceptions. A virtually identical proposal [Initiated Measure 424 text, PDF; live unofficial results] is on the ballot in Nebraska. In 2006, Michigan voters approved a similar state constitutional amendment, which in March of this year was upheld [JURIST report] by a federal district judge in a lawsuit alleging that such an affirmative action ban violated the US Constitution.

Voters in two states with large immigrant populations considered measures affecting illegal immigrants. An initiative [Proposition 202 text, PDF; live unofficial results] in Arizona would revoke the business licenses of employers that knowingly hire illegal immigrants and would strengthen penalties for identity theft. A legislative referendum [Proposed Constitutional Amendment 1 text, PDF; live unofficial results] in Florida would amend that state's constitution by deleting a provision allowing lawmakers to regulate or prohibit the ownership of real property by illegal immigrants. Ballot measures in two other states would affect immigrants by requiring the use of the English language in official settings. In Missouri, a legislative referendum [Proposed Constitutional Amendment 1 text; live unofficial results] would establish English as the official state language, to be used at "all governmental meetings at which any public business is discussed, decided, or public policy is formulated." In Oregon, an initiative [Measure 58 materials; live unofficial results] would prohibit public school students from being taught in a language other than English for more than two years, with an exception for the teaching of foreign languages to English speakers.

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