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February 09, 2020 HUMAN RIGHTS

Ballot Measure Inaccessibility: Obscuring Voter Representation

by Rachel Hvasta

Often crafted from insidiously complicated language, designed to abstract contentious details, ballot measures are propagated as a tool of direct democracy in 24 states and Washington, D.C. These measures primarily reach the general public on Election Day in the voting booth, at which point their presentation is limited to a brief summary and a vague title. With no capacity for a process similar to executive line-item vetoes or deliberative commentary, the public—assuming they even understand the jargon of the measure’s summary—must grapple with potentially compromising various aspects of their beliefs for the sake of furthering a cause contained in some part of the initiative. Assuming the voter is able to overcome the hurdles of unnecessarily obtuse language and vagueness, prior to casting their vote, they must overcome one final, radically arbitrary obstacle: determining if no means yes or if yes means no. 

When evaluated by the Fleisch-Kincaid Grade Level Formula, on average, 2019 ballot initiatives required 15 years of formal U.S. education in order to comprehend both the measure title and the summary listed on the ballot (Ballotopedia). As reflected in data from the National Center for Education Statistics, in 2018, only 35 percent of adults aged 25 and over had attained a bachelor’s degree, which would provide for the suggested 15 years. Though this statistic does not account for those who have completed at least 15 years but did not receive their diploma, this does offer a fairly significant sense of the inaccessibility of the measures’ texts for most adults. Further, marginalized communities, which have been institutionally disenfranchised from their pursuit of higher education, will also find the measures inaccessible. Additionally, the statistic above does not include younger voters (aged 18–24) who may feel disenfranchised by the superfluous academic requirements, considering they have lacked sufficient time to complete 15 years of education.

In 2018, a lawsuit was filed against Arizona’s Secretary of State Michele Reagan over Proposition 306: Clean Election Account Uses and Rulemaking Measure. The lawsuit argued that the measure should be impermissible due to its coverage of two different subjects. The Maricopa County Superior Court ruled that a single subject requirement only applies to constitutional amendments and as such the proposition was permissible. This potentiates a new issue for Arizona’s voters: If they only agree with one aspect of a proposition, they must determine their relative conviction and fault to a compromise.

Summaries of the measures are meant to be concise, as determined by state-approved word limits and strict guidelines. However, the consequence of these limitations is that hidden drawbacks may be shrouded by the generalized objective outlined on the ballot. In 2016, California’s Proposition 57, which provided for potential early release of incarcerated persons who committed crimes that are considered nonviolent by California state’s penal code was overwhelmingly passed by voters. Anecdotally, as a voting resident of California, days after the election, following numerous op-eds and outrage flooding social media outlets, I witnessed many voters become aware of the additional research that may have been required for them to have truly made an informed decision with respect to their vote. The dispute arose from the issue that there are only 23 felonies that the California Penal Code deems “violent,” with many sex offenses and other considerably “violent” crimes not included on the list. While many still contended that the passing of the proposition was ultimately worth it, as it would decrease the total amount of incarcerated individuals in the state, many wished that they had been made aware of the full gravity of their vote.

Assuming a voting-aged citizen can circumvent partisan and nonpartisan efforts of voter repression and successfully make it to the ballot, confusing ballot measures exist as a further barrier to true representation. Voters have wants and needs, which, when articulated, are often ignored or mangled to fit the agendas of lobbyists and politicians; however, ballot measures are used as a means to placate the public into a semblance of direct participation and having their needs met. Yet, with their confusing wording and deliberate omissions, measures, as they are currently drafted, are a widely inaccessible means of representation.

The inaccessibility of the measures and the resulting disenfranchisement of voters incentivizes the use of voting guides outlined by certain interest groups or parties, which in turn increases partisan polarization, instead of yielding more dynamic and individual input that reflects the specific desires of the voter. However, if the texts were developed with more accessible language and increased transparency, and if following the initiative process during legislative procedures citizens had increased potential avenues of participation, the use of ballot measures would more accurately reflect their suggested purpose. 

Rachel Hvasta recently graduated from the University of California, Santa Cruz with a BS in neuroscience a BA in politics. She spent the final quarter of her undergraduate career interning for the ABA’s Section of Civil Rights and Social Justice.