Thursday, October 21, 2010

Ballot Initiative ?= Public Will

I just filled out my ballot (Washington votes by mail), and something about the ballot measures struck me. They were completely unintelligible. In particular, Washington state initiative 1053, which would make it impossible for the legislature to raise taxes or fees without consent of two thirds of the legislature. As everyone who knows math or the Washington State legislature has realized, this means that 17 people can obstruct any tax or fee increase for any reason, trumping the will of the majority. To be fair, the measure does allow for a majority of the voters in a general election to overturn the veto of the 17 united holdouts.

I certainly think that it's a bad idea- just look at the budgetary and procedural woes of California. But my readers know that I don't usually comment on simple policy issues. I prefer the constitutional and democratic theory concerns. My biggest peeve with this ballot initiative is how it is framed on the ballot. If the ballot measure passes (i.e. if a simple majority of the voters vote 'yes' on it), 7 pages of text is inserted into the state code which would raise the two-thirds requirement from the dead. On the ballot, however, the text simply reads
Initiative Measure No. 1053 concerns tax and fee increases imposed by state government.

This measure would restate existing statutory requirements that legislative actions raising taxes must be approved by two-thirds legislative majorities or receive voter approval, and that new or increased fees require majority legislature approval. Should this measure be enacted into law?
A voter approaching this item might be mystified by exactly what this measure does. If it simply "restates" extant "requirements," does it do anything? The object of the ballot measure is static: the 2/3 rule is presumed to be in operation. The text certainly does not appear to ask if the voter wishes to impose a new burden on the state legislature. Even if we, as reasonable people, assumed that if a ballot measure does something, where would we look to figure out what a 'yes' vote would do? The grade-school answer is that we should look to the verb in the sentence: "Restates." Even if we assume that "restates" implies an actual action, as is structurally suggested by its placement on a ballot with a question of voter support attached, we are left with no clues about what direction a 'yes' vote might take the restrictions. They might weaken the rule to allow more "tax and fee increases imposed by state governments," or Measure 1053 might equally well strengthen it.

Imagine for a second that you're a judge in the State of Washington in two years. Imagine that initiative 1053 had passed. A case comes before you in which a party alleges that a fee was levied that was not duly passed under the rules of the statute. Since the case presents an issue concerning the purpose of the initiative, and the ballot measure was enacted by the voters, you would first look to the plain meaning of the text that appeared on the ballot. There is no plain meaning- or rather, the plain meaning provides either (1) that nothing is being changed with a 'yes' vote or (2) the direction of the change is indeterminate. There is no discernable voter intent.

Would a judge then look to the text that the ballot initiative entered into the state code? We have already discovered a shocking lack of content as to what the voters intended. There may even be cross-purposes at work among different groups supporting this measure: one group assumes that such a 2/3 rule is already in place and wants to "restate it" assuming it would weaken it against one group that assumes the 2/3 rule is defunct and wants to "restate it" to resurrect it. As a judge, do you privilege the wills of the voters who happened to be right about the content of the statutory text?

This particular ballot measure is fatally flawed. It is worded ambiguously enough that a reasonable person may reasonably decide that it means two diametrically opposed things. I do not believe that ballot measures are fatally flawed in general however. I simply believe that if we are to ask judges to enforce ballot measures and constitutional amendments approved by voters, that the voters be allowed to vote on the text of the provision, and not some doublespeak gobbledegook cooked up by a state legislator who couldn't pass his bill through normal means. Ballot initiatives are, among those in the know, generally assumed to be a perversion of popular sovereignty, and this has some explanatory power for why it is that most undecided voters on ballot measures turn into 'no' voters. Measure 1053 is a disgrace to our democracy, not because of what it stands for, but because of how it stands for it.

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