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
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.
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.