In elections, popular sovereignty is
exercised by an electorate. Such sovereignty is above that of governments
(i.e., governmental sovereignty). Typically, popular sovereignty (i.e., the
will of the people) is limited to filling public offices from candidates or
write-ins. In the last few decades of the twentieth century, California effectively
expanded the power of popular sovereignty by adding a number of referendum
questions to the ballots. Even though the popular sovereign (i.e., the direct will of the people) can make
mistakes—such as requiring a 2/3 legislative majority to pass a tax increase in
California—the expansion from merely filling public offices to actually making
policy and even law is from a democratic perspective a good thing. The problem,
it seems to me, lies in how the questions are written. In particular, they must
be written in such a way that they are understandable to the typical voter.
Writing a question, whether on policy, law, or a constitutional amendment, in
legalize circumvents popular sovereignty. Such an approach defies common sense
itself, and yet it was done in spades (and impunity) by the Florida legislature
in 2012, placing the Florida electorate in a nearly-impossible position as the
popular sovereign.
Flag of Florida
Concerning the 2012 election in Florida, The Florida Times-Union in Jacksonville wrote, much “of what’s on the ballot is legalese and difficult-to-understand wording associated with the amendments.” The newspaper advises Florida’s citizens, “To save time, it will help to know what each amendment does, how you want to vote, and if a “Yes” or “No” achieves that desired vote. In short, be prepared.” Much too much is assumed in this advice concerning the wherewithal of the typical citizen to make sense of the technical legal words, and even to research each question before voting in order to understand what the technical language means (assuming that the typical voter is going to wade through even the newspaper’s own deciphering). In general, assuming too much of an electorate reflects negatively not on the electorate, but, rather, on the legislators who crafted and approved the ballot’s language.
For example, the matter of the third
proposed amendment on the Florida ballot was put to the voter in the following
words (from the ballot): “This proposed amendment to the State Constitution
replaces the existing state revenue limitation based on Florida personal income
growth with a new state revenue limitation based on inflation and population
changes. Under the amendment, state revenues, as defined in the amendment, must
be deposited into the budget stabilization fund until the fund reaches its
maximum balance, and thereafter shall be used for the support and maintenance
of public schools by reducing the minimum financial effort required from school
districts for participation in a state-funded education finance program, or, if
the minimum financial effort is no longer required, returned to the taxpayers.”
Besides the basic, rather obvious point that the typical voter could not
possibly be expected to understand this language (and yet someone approved it nevertheless!), the language assumes that the voter knows what goes
into the existing revenue limitation (and can thus compare it with basing a
limitation on inflation and population changes). Furthermore, the voter is
assumed to be familiar with what a budget stabilization fund is, and able to
assess its dynamic (e.g., maximum balance, etc.). The proposal is so specific,
moreover, it may be misplaced as basic or constitutional law rather than as a
mere statute. Indeed, the decision on the question is more along the lines of
governmental than popular sovereignty (i.e., the elected representatives, who
write laws and thus either understand the legalese or have a staff that does).
Supposing perhaps that the typical voter
has a real estate brokerage license, the fourth proposed amendment on the
ballot states in part: “In certain circumstances, the law requires the assessed
value of homestead and specified nonhomestead property to increase when the
just value of the property decreases. Therefore, this amendment provides that
the Legislature may, by general law, provide that the assessment of homestead
and specified nonhomestead property may not increase if the just value of that
property is less than the just value of the property on the preceding January
1, subject to any adjustment in the assessed value due to changes, additions,
reductions, or improvements to such property which are assessed as provided for
by general law.” The legislators erred, in my view, in projecting their own
language onto the general public, and, moreover, in conflating what is actually
a statute with constitutional language, which is (or at least should be) much
broader.
Another proposed “amendment” would
provide “an exemption from ad valorem taxes levied by counties, municipalities,
school districts, and other local governments on tangible personal property if
the assessed value of an owner’s tangible personal property is greater than
$25,000 but less than $50,000.” Besides the latin term and legal jargon, the
specification of the dollar figures is clearly statute-level rather than
constitution. I have a bachelor’s degree in Accounting and I would have trouble
with defining “ad valorem taxes.” I cannot imagine a person, especially if elderly,
who has not worked in business being able to make sense of the proposal.
As a final example, one might wonder how
the following proposed “amendment” is at all constitutional, not to mention
being of sufficient importance that the legislators—the agents of the popular
sovereign—could not be entrusted with making the decision. The proposed “amendment”
would “replace the president of the Florida Student Association with the chair
of the council of state university student body presidents as the student
member of the Board of Governors of the State University System.” The typical
voter might legitimately wonder, what is
the council of state university student body presidents, and is it really much
different than the Florida Student Association? Moreover, why am I being asked
to decide this?
The truly unfortunate thing about
Florida’s bastardization of popular sovereignty is that sensible proposals to expand popular sovereignty could face rejection based on experiences such as Florida's
attempt in 2012. So many reasons go into why voters elect a person to an office
that it is impossible to say that the voters have expressed a will on a given
policy by electing a particular candidate. Whereas the typical voter does not have a basis in real-estate,
accounting and law (i.e, all three!), he or she could be expected to reflect on
and give an answer to questions such as, should
abortion be illegal, should the U.S. give aid to Israel, should military
spending be cut, should Florida provide subsidized health insurance to residents
unable to afford it, and should property taxes be cut to reduce the deficit or raised to add funding to roads
and education? A legislature could even add some non-legal terms to
such questions to clarify them without losing the typical voter, and testing
such questions by using focus groups could add confidence that the legislators
have not unwantedly projected too much of their own world into the wording. Additional specificity could be handled by the agents (i.e., the legislators), as per the nature of principal-agent relationships.
In short, expecting too much from the
electorate is not only utterly unfair to the voters, it also risks undercutting
real progress on popular sovereignty, an electorate being fully capable of
deciding general policy and even law,
with the legislative agents then being tasked with writing the expressed general
will into legal language.
Concerning proposed constitutional
amendments, the legalese could be provided below
a description that voters can understand without any assumed expertise beyond a
high-school reading level, as if to say, this
is how the amendment would look in the constitution. In fact, statute
language could be provided under general
policy language on questions regarding policy or an important statute. Because popular sovereignty is superior to governmental
sovereignty, that which a legislature
puts to the electorate to decide must reach a certain threshold of importance. Deciding
on contending student representatives so obviously does not meet this test that
one might wonder whether the Florida legislature is fit even to legislate, much
less address matters to the agents’ principal—the voters as a group.
Lastly, to the extent that legislatures have
been confusing statute from constitutional levels in terms of breadth, legislators
would be wise to assign to a committee the task of distinguishing what is
properly constitutional from what is of such specificity to be statute law. I
suspect that state constitutions in the U.S. would have to be redrawn to
correct for decades of category mistakes. Although Florida’s approach to
popular sovereignty in 2012 was particularly, well, stupid (to state it
bluntly), I suspect that other state legislatures are fully capable of making
similar mistakes, particularly in trivializing their constitutions into a way
to add statutes as though they were amendments. One might wonder whether the
legislators knew much at all about their respective constituents.
Ironically, the legislative decision in
Florida to ask the electorate to decide questions on the basis of technical
language that could not possibly be understood by the general public is in
itself a good reason to expand popular sovereignty at the expense of
governmental sovereignty. However, this
must not be done so as to put the voters in an impossible situation—that of being
asked to decide matters by reading language that they cannot possibly
understand. This is not rocket science, folks, even in the state where
rockets had been launched for decades.
Sources:
Sample Florida Ballot 2012: http://www.miamidade.gov/elections/s_ballots/11-6-12_sb.pdf
Matt Dixon, “Florida
Constitutional Amendments: Voter’s Guide,” The Florida Times-Union, October 13, 2012.
No comments:
Post a Comment