Who Wrote That Ballot Measure You’re Voting On?

Do some research on those referenda.

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At first glance, Florida’s Amendment 1 looks sunny for solar power. If it passes on Tuesday with 60 percent of the vote, the measure would give Floridians a constitutional right to a solar panel. The bill’s title, “Rights of Electricity Consumers Regarding Solar Energy Choice,” sounds positive enough.

But Floridians can already own solar panels. Buried in the second sentence, if you bother to read past the right to a solar panel, you’ll find the real purpose of the measure: a provision that could end “net metering,” which allows solar panel owners to sell excess power back to their utility on hot summer days. This change would vastly reduce the incentive to own or lease solar panels. A similar initiative in Nevada this winter “brought rooftop solar to a dead stop” in the state.

Amendment 1 was written by a group funded by the state’s big utility companies. It’s a great example of the initiative-industrial complex, the smattering of corporations and consultants that have transformed the ballot initiative—engineered to bypass special interests in the statehouse—into a way for special interests to bypass the statehouse.

The amendment’s success will be determined not by how Floridians feel about net metering, which has been shown time and time again to provide substantial benefit to nonsolar consumers, but on their reading comprehension skills.

There’s no such thing as neutral language, especially when complex issues must be compressed into one or two sentences. That’s one problem with direct democracy, and the surging number of big policy decisions made at the ballot box. In a few cases this year, ballot language has helped obfuscate the intent of measures, or otherwise influence their chances.

In Pennsylvania, two former state supreme court justices are asking a federal court to invalidate a proposed amendment that would extend the judicial retirement age from 70 to 75. The measure is written in such a way to suggest that it represents the imposition, rather than the extension, of the existing retirement age. Critics say it’s a way to keep old judges on the court, disguised as reform. The wording was finalized by Pennsylvania’s GOP Legislature; one of two Republicans on the state supreme court turns 70 in December.

In Georgia, opponents say a school policy amendment is worded for success. The question is: “Shall the Constitution of Georgia be amended to allow the state to intervene in chronically failing public schools in order to improve student performance?” It’s a big project of Georgia Gov. Nathan Deal, and likely to pass. But critics say the language is “affirmatively misleading” for a law that would merely justify state takeovers over schools. The preamble promises “increasing community involvement,” but there’s no provision for how that would happen.

Who wrote that preamble? A group called the Constitutional Amendments Publication Board, which consists of the governor, lieutenant governor, and speaker of the statehouse, who are all Republicans.

In other states, the secretary of state is charged with writing ballot language. Virtually every year, secretaries of state tangle with courts over the minutiae of the proposals. This has already happened in Arizona, with a GOP secretary, over the legalization of weed, and in Missouri, with Democratic secretary and U.S. Senate candidate Jason Kander, over a cigarette tax. In both cases, the courts decided the language did not accurately describe the statute. In August, the state supreme court of Nevada rejected a veto referendum to restore favorable rates for net metering, saying the language was “not only inaccurate and misleading, but also argumentative.”

Politicians are fluent in double-speak, of course. But rarely can they achieve so much with so few words. According to an investigation by ProPublica and the New York Times, the Republican Secretaries of State Committee, or RSSC, began in 2015 to invoke ballot initiatives in its fundraising efforts with big corporations. Big donors are promised access to “ballot initiative briefing calls” with the same secretaries of state charged with writing ostensibly impartial ballot language. The secretaries also solicit donations from corporations with active ballot box interests, and are treated to posh retreats with lobbyists and other corporate representatives.

Ultimately, courts may reject, in whole or in part, whatever language is bound for voters on Tuesday. But for two of this session’s most misleading measures—the judge retirement age in Pennsylvania and the solar panel law in Florida—courts have not intervened. In the Keystone State, the supreme court has deadlocked twice on the issue of wording. (The 69-year-old judge recused himself.) In Florida, the state supreme court voted 4–3 in March to keep the solar amendment on the ballot.

Then, in October, the Miami Herald uncovered tape of the policy director of a Tallahassee think tank, which is supported by Florida’s electric utilities, boasting that the solar amendment was “an incredibly savvy maneuver.” It was “a little bit of political jiu-jitsu” to “use the language of promoting solar” to “completely negate anything [pro-solar interests] would try to do either legislatively or constitutionally down the road,” the director, Sal Nuzzo, said at a conference in Nashville last month. That was the exact criticism that a dissenting judge had made seven months earlier, writing the measure was “masquerading as a pro-solar energy initiative.” (Advocates made an eleventh-hour request to the state supreme court, which was denied.)

It’s still on the ballot in Florida, where about 6.5 million people voted before Tuesday. “As you guys look at policy in your state, or constitutional ballot initiatives in your state,” Nuzzo told his audience, “remember this: Solar polls very well.”

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