By Josh Goodman, Stateline Staff Writer
Just a couple of months ago, Dan Pellissier was leading an effort to ask California voters to overhaul the state’s public retirement system. The ballot initiative campaign looked like it had momentum, with polls showing a majority of Californians in support of pension changes. The stage appeared set for a November showdown between fiscal conservatives and public employee unions.
Then, says Pellissier, just as the campaign was gearing up to begin collecting signatures to gain a spot on the ballot, it came to a screeching halt in the office of California Attorney General Kamala Harris.
Harris didn’t kick the initiative off the ballot or challenge it in court. Instead, her office played a seemingly technical role. In California, the attorney general is responsible for writing the summary that petitioners use when they gather signatures to place an initiative on the ballot. For initiatives that qualify, the attorney general comes up with the words voters see in the voting booth.
Pellissier, who heads a group called California Pension Reform, thinks that Harris’s ballot summary for the initiative was false, misleading and prejudicial — all in under 100 words. The summary says the initiative “reduces pension benefits for current and future public employees.” Pellissier says it made workers contribute more of their own money, but the benefits would have been the same. The summary mentions that “teachers, nurses, and peace officers” will be affected, groups Pellissier argues present public workers in their most sympathetic light. The summary says the initiative “prohibits public retirement systems from providing death or disability benefits to future employees,” but, Pellissier notes, it doesn’t mention that the measure also would have authorized those benefits to be offered outside of retirement systems.
The Attorney General’s office maintains that the summary is truthful and fair. Opinion writers across the state, though, castigated Harris, a Democrat who was backed by public employee unions in her narrow 2010 election victory. To Pellissier, it was game, set and match.
California Pension Reform could have tried to challenge the summary in court, but that would have delayed the signature-gathering process and potentially made the challenge moot. Instead, with their fundraising weakened, supporters abandoned the initiative. “Writing a summary shouldn’t be that hard,” says Pellissier, “and be that controversial.”
Often, though, it is. This kind of quarrel is nothing new for California or for many other states. The official language of ballot measures is a frequent topic of debate — debate that increasingly ends up in court. Critics regularly contend that authorities twist the words on ballots or on petitions, to try to help measures pass or make them fail.
In some instances, the critics appear to have a point. In other cases, the disagreements merely reflect the difficulty of condensing complicated legal changes into a few short sentences. But underlying these disputes is a sense that the words on the ballot matter: Often, they’re the only thing voters know about measures, even ones with sweeping public policy consequences.
In most states that allow citizen ballot initiatives, the job of writing ballot language falls to either the secretary of state or the attorney general. But citizen initiatives aren’t the only measures that end up before voters. State legislatures also refer measures to the ballot, and in some states, legislators themselves decide what words will appear with them. When it comes to writing slanted ballot language, legislators have a reputation for being some of the worst offenders.
In Florida in 2010, the state Supreme Court knocked three legislatively referred constitutional amendments off the ballot because of what it ruled were confusing or misleading summaries. One of them was the Republican-controlled legislature’s effort to challenge the Obama administration’s health care law. The summary sounded more like talking points than a neutral synopsis, stating the legislature’s amendments would “…ensure access to health care services without waiting lists, protect the doctor-patient relationship, guard against mandates that don‘t work…”
Likewise, California lawmakers wrote the official title for a 2008 measure to authorize bonds to build high-speed rail: It was called the “Safe, Reliable High-Speed Passenger Train Bond Act.” The summary continued in that spirit, describing the rail system as “convenient,” “affordable,” “clean,” and “efficient,” and saying it would reduce traffic congestion, greenhouse gas emissions and dependence on foreign oil.
The title and summary to the rail measure prompted a lawsuit that succeeded—albeit more than two years after the voters had already approved the bonds. A court ruled in 2011 that in the future the attorney general will have to write the titles and summaries for legislative proposals, just as she does for citizen initiatives.
Given the years of dispute over ballot summaries in California, that shift isn’t likely to end the controversy. Nor would it elsewhere. Attorneys general are charged with enforcing laws and running elections in a non-partisan way, but they’re also generally partisan elected officials. That sets them up for scrutiny.
One of the latest dustups is in Washington state over an initiative to block the state’s new gay marriage law. The title written by Attorney General Rob McKenna, a Republican gay marriage foe, says the law in question “would redefine marriage to allow same-sex couples to marry.” Gay marriage advocates say they’re not trying to “redefine marriage,” only to open marriage to more couples — and that the phrase comes straight from the rhetoric of the anti-gay marriage movement.
Scarcely anyone is disputing that language on the ballot helps determine whether measures pass or fail. “This is the harsh reality of what people who run campaigns know about the California ballot,” says Pellissier. “People show up at the ballot unprepared or lightly informed about the issues that confront them.”
Under the radar
Still, it’s easy to find examples where the language wasn’t decisive. In California, a budget deal in early 2009 referred tax increases to the ballot. The legislature’s summary that appeared on the ballot, though, deliberately said nothing about the tax increases or, in fact, taxes at all. Lawmakers had coupled the tax increases with new fiscal rules intended to avert future budget crises. The summary focused only on those rules. The separate fiscal impact statement, written by the Legislative Analyst’s Office, did say that the measure would increase tax revenue by $16 billion, but didn’t mention that it did so by extending higher income, sales and vehicle tax rates.
Nonetheless, voters seemed to know perfectly well what they were voting on. California’s most conservative counties — the ones most likely to oppose tax increases — were the ones that most strongly opposed the measure. It was overwhelmingly defeated.
That California tax question was the most prominent item on a special election ballot. As a result, almost anyone who showed up at the polls likely had an opinion on it before they read the language. Otherwise, they wouldn’t have voted at all. The stronger case for the influence of wording is on initiatives that fly further under the radar.
In November 2010 in Missouri, for example, at the same time voters were electing members of Congress and the state legislature, they were asked to weigh in on new rules for dog breeders. The ballot language the Secretary of State’s office wrote noted that the law would create a misdemeanor called “puppy mill cruelty.” The name for the crime came straight out of the initiative itself. The summary put “puppy mill cruelty” in quotation marks.
Still, opponents argued that mentioning puppy mills would prejudice voters. Their court challenges failed. In the end, the initiative passed with 51.6 percent of the vote. Opponents feel confident that without “puppy mill cruelty” they would have won. “Who’s for puppy mills?” says Chuck Hatfield, a lawyer who argued the case. “Who could be for mills that crush puppies into small parts? It’s a loaded term.”
These disagreements have become common in Missouri. State Representative Shane Schoeller, a Republican who’s running for secretary of state, thinks there’s a better way. He’s proposing the creation of a new board made up of appointees of both the majority and minority leaders in the legislature to have the final say over ballot language. Approving the language would take a bipartisan vote. “The goal of this legislation would be to take some of the politics out of it,” Schoeller says.
There’s also been talk of new changes in California. One idea is to shift the responsibility to the Legislative Auditor’s Office, which has a reputation for non-partisanship. Pellissier, though, would prefer having retired judges do the task, since the language often ends up in court anyway. “You might as well,” he says, “get to the judges right up front.”