This year, like every other year, voters across the country are being asked to approve changes to their state’s laws and constitutions. After running through the first part of the ballot, checking off names for each public position, voters encounter long and often confusing paragraphs filled with legal terminology and complex wording asking them to approve or disapprove of significant measures. The wording on the ballot can be confusing at best, and misleading at worst. One has to wonder whether this is purposeful or simply due to the inherent complexity of the underlying issue.

In Georgia, as in most states, changes to the state constitution must be approved by voters. The Georgia Legislature introduces a resolution with the proposed ballot language of the Constitutional changes and once approved, it goes directly to the voters.[1] Without knowing anything else about the process, most should already be able to identify the problem: the people asking the voters to change the Constitution are the one’s given the opportunity to carefully word the question submitted to the voters. It should certainly come as no surprise to many that when politicians craft the wording of the statement they are often either purposefully mis-characterizing the objective of the measure or failing to make the statement clear enough for the average voter to adequately understand the situation.

Amendment 1 sign in Candler Park, Atlanta.

It certainly must lead to unintended outcomes when voters side with or against changes that they otherwise wouldn’t have had they known what they were voting for. For instance, we recently ran an article highlighting a 2002 proposal to amend the Georgia Constitution in order to give similar beneficial tax treatment to owners of affordable housing units as is given to owners of conservation and agricultural property. Voters rejected that measure, but can we be sure they understood what they were doing?

The text of the 2002 referendum read:

“Shall the Constitution be amended so as to provide that qualified low-income building projects may be classified as separate class of property for ad valorem property tax purposes and different rates, methods, and assessment dates may be provided for such building projects?”

Voters are tasked with deciphering what is being asked and then determining whether the change would be good policy, but only sophisticated voters who routinely work in the areas of property and tax law know how to interpret this question.

An example from the 2016 Georgia ballot is the controversial Amendment 1. The text of the question reads:

“Shall the Constitution of Georgia be amended to allow the state to intervene in chronically failing public schools in order to improve student performance?”

Along with the actual words of the question is the preamble (written by the Governor and leaders of the House and Senate) to the question that appears on the ballot: “Provides greater flexibility and state accountability to fix failing schools through increasing community involvement.”

While this wording isn’t inherently confusing, the question is an appeal to consequence: the conclusion is based on a premise that supposes a positive consequence (improving student performance) from “allowing the state to intervene in chronically failing public schools”. The wording is such that the voter becomes distracted from focusing on the premise by the positive outcome that most people would likely support. The preamble statement has been attacked by the Georgia PTA (an interest group opposed to Amendment 1) as simply being an incorrect explanation of how the approved measure will operate.

Another example of voter confusion is found in California. That state has competing death penalty measures on the 2016 ballot with Proposition 62 asking voters to repeal the death penalty and Proposition 66 asking voters to speed up the process for sentencing people to death. While the polls shows a nearly even split, half intend to vote yes on Prop 62 and half intend to vote yes on Prop on 66, they also show almost a quarter of voters intend to vote yes on both measures. It makes little sense as to why someone would vote yes on both, so the likely explanation is that a quarter of voters simply have no idea what they are being asked.

If we are going to routinely ask voters to directly change the rules of our society then we should probably make sure voters are properly educated in regard to what exactly they’re changing. One traditional response to this statement is that voters should just educate themselves. That’s a fine answer if we can be certain that all voters have equal access to accurate information.  

Why not address the fundamental problem of partisan legislators carefully crafting the words to be purposefully misleading or confusing? Several states have attempted to correct this problem by providing voter guides to every resident. These guides supply explanatory statements of the ballot measures and arguments from both sides. In Georgia, after the legislature approves the wording of the ballot measure there is no effort taken by the government to make sure people know the purpose or objective of the measure. Voters must seek out information from other sources. While there isn’t anything wrong with asking voters to educate themselves, it can be time consuming if the ballot is filled with several referenda and if some of those referenda receive very little attention from the media.

In Washington state, for example, after the ballot measure is approved, the Attorney General is tasked with writing an explanatory statement to go in the voter guide that is mailed to all residents. If the drafter of the ballot measure is dissatisfied with the statement then they can appeal to the Thurston County Superior Court (Thurston County is home to Olympia, the state capital). The court will hear arguments from both sides and issue a final statement. In addition to the explanatory statement, legislative committees are created to write arguments for and against the measures with opportunities for each side to rebut the other’s arguments. These are also included in the voter guides. Along with the explanatory statement and the arguments for and against is a fiscal statement prepared by the WA Office of Financial Management detailing the fiscal impact the measure would have on the state and local governments.[2]

The Explanatory and Fiscal Impact Statement for Measure No. 735 on the 2016 Washington State ballot. Via WA Sec. of State

While the voter guide is certainly no perfect solution, it is at least an attempt to make sure all voters are given basic information about the measures from each side. Voters are free to ignore the information and/or to go down the hyper-partisan hole of questionable evidence, but at least voters are given the opportunity to review civil discourse on the matter from both sides. In many cases, particularly with measures that are not covered extensively by the media, the voter guide may actually provide more information than what a voter could otherwise access.  

Since writing laws is inherently a political process, reforming the actual process of creating the words of ballot measures to remove politics is likely unfeasible. Some measures deal with fundamentally complicated topics, so even without politics the effort to make the measures readable and understandable to the average voter could be difficult, if not impossible. Georgia could, at the very least, follow in the steps of others states to make sure all voters receive accurate information designed to alleviate any confusion or mis-characterization.