A Busy Cycle

According to Ballotpedia, the November 2020 election saw voters in 32 states decide on 120 statewide ballot measures. While top-of-the-ballot coverage dominated the news cycle, initiatives and referenda further down the ballot stood to have potentially significant impacts on domestic businesses and their compliance teams. 

Drug Legalization

The legalization of marijuana has been a topic gaining momentum in the United States for years now. With “more than a third of Americans now liv[ing] in states with full legalization, and a record 68 percent support[ing] federal cannabis legalization,” according to a Politico article, this is a ballot measure we should expect to see more states pick up in future elections. 

As for how voters cast their ballot, five states passed referendums to legalize either the medical or recreational use of marijuana, bringing the total states with some form of legalization up to 15. Others expanded the topic of drug legalization beyond marijuana. A look at where voters landed:

• Medical marijuana: Voters in both South Dakota and Mississippi voted on the legalization of medical marijuana for peoples with debilitating medical conditions; voters in both states passed this initiative. 
• Recreational marijuana: South Dakota, New Jersey, Montana and Arizona voted on a referendum to legalize the recreational use of marijuana; only New Jersey and Arizona approved the measures.
• Decriminalization of other drugs: Both Oregon and the District of Columbia presented ballot measures looking to decriminalize the possession of most drugs (Oregon) and some psychedelics, like magic mushrooms (D.C.); both measures passed in their respective state/district.

With the House's endorsement of the MORE Act on Dec. 4, we continue to see new precedents being set. The act looks “to decriminalize cannabis and expunge convictions for non-violent cannabis offenses that have prevented many Americans from getting jobs, applying for credit and loans, and accessing opportunities that make it possible to get ahead in our economy,” according to Politico.

While the act is not expected to pass into law because of "political skittishness", according to a Washington Post article, it creates further momentum in the effort to legalize marijuana on the federal level.

Why does this matter? The legalization and decriminalization of drugs creates a tension between health and safety compliance teams (including drug testing/employee sanctions) and states offering various levels of protection for applicants and employees. As the number of states legalizing marijuana continues to grow with each election cycle, and others expand beyond marijuana, this is a compliance issue that will continue to become more complicated. 

Workers’ Rights

As the gig-economy in the US continues to grow, we should expect to see ballot measures regarding workers’ rights to keep popping up. “Without these bedrock protections, app-based workers, 72% of whom work full time, struggle to cobble together a stable living while dealing with often unsafe working conditions in underpaid jobs,” according to an article in Bloomberg Law. 

As for how voters cast their ballots in line with these initiatives, three states went to the polls on workers’ rights:

• Minimum wage: Florida was the only state this election cycle with an initiative to raise the minimum wage; voters approved this 6-year measure.
• Ride Share Workers: California’s Proposition 22 looked to classify drivers for apps like Uber, DoorDash, and Lyft as independent contractors rather than employees; voters passed the proposition.
• Paid family and medical leave: Colorado voters saw a ballot measure to develop a paid family leave and medical leave program; voters passed the measure.

With the incoming administration being a proponent of raising the federal minimum wage to $15 and likely to propose an aggressive paid sick leave plan in the wake of the growing pandemic, expect these topics to take on increasing focus.

Why does this matter? A patchwork of citizen-driven initiates could require a complicated mix of phase-in and reporting periods that would need oversight from compliance professionals. Additionally, there may be internal policies and milestones that organizations need to monitor the progress of in order to ensure compliance when key dates are reached. 

Data Privacy

Another topic that many have been waiting for the US to expand upon is consumer data protection laws. Ever since the EU’s 2018 landmark General Data Protection Regulation (GDPR), consumer data protection has been a topic of discussion across industries, roles, and at the forefront of the compliance industry. With last year’s open letter to Congress pushing for a comprehensive data privacy law, penned by 51 CEOs of top US companies, including Amazon, IBM, and Dell, we were expecting consumer data privacy to make a prominent appearance on 2020 ballots.

This year’s election saw several states consider measures on consumer privacy, including California continuing to set the bar for the rest of the US to follow:

• California: voters in CA considered Proposition 24, which looked to further expand its data privacy laws, including the development of a Privacy Protection Agency for enforcement; voters passed the proposition.
• Massachusetts: voters decided on Question 1, a measure that looked to standardize the platform used in cars’ computer systems that would allow access by vehicle owners and independent vehicle repair facilities; voters approved this initiative.
• Michigan: voters weighted Proposal 2, a constitutional amendment that if approved, would require a search warrant to access a person’s electronic data; voters approved the amendment.

Data privacy is a topic that compliance professionals have been grappling with for years, and more recently, domestically, with the California Consumer Privacy Act of 2018 (CCPA), which gives consumers more control over the personal information that businesses collect about them. As the EU continues to blaze the way for international data privacy protection, domestically, compliance managers continually look to California for setting the US precedent. 

Why does this matter? CCPA 2.0 (combined with the other initiatives) shows that there is a continued appetite for consumer privacy measures. From a compliance perspective, the patchwork state-by-state approach, varying deadlines, and inconsistent requirements make it challenging to map out an effective strategy that will work for all cases. Making things even more challenging is the aspect of requiring part of organizations that are traditionally not used to operating under regulation (marketing departments) to adhere to compliance plans.

Industry-Funded Initiatives

The impact of money, sometimes in the form of big tech or powerful interest groups, continued to be a factor in securing initiatives on state ballots. “What this cycle showed, maybe more than any other, is that you can pay for a law if you don’t like something that’s going on,”  Democratic political strategist Gale Kaufman told the LA Times. 

Why does this matter? Due to the continued gridlock in Washington, D.C., a growing appetite for change via citizen initiative has mixed with the emergence of industries using initiatives as a way around state legislation. This means that future elections need to be closely monitored for potential, future compliance obligations just as carefully as the state and federal legislatures are. This means compliance professionals need to be ready to quickly pivot as new trends continue to emerge from state ballots in the coming years.

Going Forward

As we move beyond this year’s election cycle, we see an increasingly complicated regulatory environment. The initiatives highlighted above show this will likely continue to be the case. Many of these issues are giving organizations the chance to sort out what type of approach they will employ to ensure that they stay in compliance with a shifting, sometimes conflicting, set of requirements. This underscores the need to automate as much of the administrative process as possible, so compliance managers and their teams can focus on emerging regulations and tracking the progress of current initiatives.

To learn more about how Origami Risk can help your organization navigate the rocky compliance landscape coming out of the 2020 election, contact us.