Deception In The Ballot

No doubt, the way a ballot initiative is described is a matter of some importance for the initiative’s success or failure. Thus the importance of electing an honest Attorney General, since it is that officer in California, and not the Secretary of State, who provides the brief legal description of all ballot initiatives. For many voters, this one or two-sentence long description of an initiative appearing on the ballot itself is the first and only exposure that the voters have to the content of the initiative, and it is the basis they use to make their decisions about it.

So it is not surprising at all to learn that Jerry Brown’s altered description of Proposition 8 (“Eliminates the right of same-sex couples to marry,” changed from the sponsor-provided language “Limit on marriage”) detracts from the ballot appeal of the initiative. Exactly how much is hard to say. The most recent Field Poll indicates only 38% of respondents in favor of Prop. 8 and 55% opposed. It also indicates that 70% of the respondents had heard of the proposition and knew what it was before taking the poll.

Now, here’s the interesting thing. Prop. 8 proponents would have you believe that they enjoyed majority support for their initiative before The Marriage Cases, and that they continued to enjoy that support afterwards, as long as their own language was used on the ballot proposal. I’m not so sure that’s true, but let’s concede that point arguendo. Let’s further concede that the voters understand the difference between “judicially-created” rights* and rights explicitly enumerated in the Constitution. This basically concedes that swing voters, who hold the dispositive votes, would support an unspecified “limit on marriage” but would not support “eliminat[ing] the right of same-sex couples to marry.” The argument is that they might be willing to restrict a privilege more readily than they would be to take away a pre-existing right.

Well, doesn’t that argument reduce marriage to a privilege, something on par with a driver’s license? It ceases to be a fundamental right by that argument. And therefore, it ceases to be something worth getting all that excited about gay people having or not having. (However, if a law were to restrict driver’s licenses to straight people only, I think voters and even some Prop. 8 supporters would have a problem with that; obviously, the state should not discriminate in dispensing a privilege any more than it does acknowleding a right.)

Of course, I’m assuming here that the dispositive swing voters, who will not have read the ballot language, who will make their decision in the voting booth, and who will not have formed an opinion one way or the other prior to entering the voting booth and reading this language, will think things through to the point that they prioritize between privileges and rights.

And note also that the proponent-favored language is not specific about whose right to marry is limited. They avoid reference to same-sex couples altogether. They claim that Brown’s langauge is somehow deceptive in that it does not accurately describe their intent in offering the initiative (which was proposed before The Marriage Cases were announced). So in that sense, we’re talking about competing versions of deceptive language. Either we deceive the voters that the initiative was intended to take away pre-existing rights, or we deceive the voters about the real targets of the initative.

It’s particularly revealing that when the voters are told in more explicit terms what the initiative would do, they reject it. It takes deception to make people willingly give up rights.

* Other examples of “judicially-created” rights not explicated in the Constitution include the right to attend a school that is not racially segregated (Brown v. Board of Education), the right to have one’s vote count equally as compared to other voters (Reynolds v. Sims), and the right to send your children to religious schools (Pierce v. Society of Sisters). Damn that pernicious judicial activism!