Beyond Yes and No

Nick Wirth

As I was following last week’s elections, I was reminded of a debate that took place here in Oregon earlier this year. Careful observers of the referendums that were on the ballot in Maine and Washington might have noticed that supporters of equality were rooting for two very different outcomes on each measure. In both states, opponents of equal rights had referred pro-equality laws passed by the state legislature to the ballot (in Maine the law had legalized gay marriage, in Washington it extended the scope of domestic partnerships). Yet despite the referendums' similar backgrounds, proponents of equal rights in each state were rooting for the opposite result; a “no” vote on Maine’s Question 1, and a “yes” vote on Washington’s Referendum 71.

Why the disparity? When a popular referendum on a legislative act is placed on the ballot, each state essentially asks a different question of voters. In Washington voters are asked whether or not the contested legislation should be upheld; a yes vote preserves the law and a no vote overturns it. Meanwhile Maine voters are asked whether or not the referred law should be repealed. Thus, in Maine, a yes vote repeals the law and a no vote keeps it in place.

This difference between the two states reminded me of the debate over HB2414 that took place here in Oregon near the end of this year's state legislative session. The bill essentially would have changed Oregon's system for referendums from one mirroring Washington (no-to-repeal), to one copying Maine (yes-to-repeal). The bill died after conservative groups vocally objected and the local press ran editorials against it. The refrain at the time was that the Democratic legislature was trying to change the meaning of yes and no. This no doubt made for a great headline, but it was inexcusably ignorant of what the bill would actually do. I think it's unfortunate that the idea was dropped. Following last week's elections only further convinced me that Oregon should change how we word popular referendums.

First of all, the editorial outrage over the idea now looks a little silly given that Maine manages to have perfectly functional elections with their yes-to-repeal system of referendums. In fact, Maine used to have the same no-to-repeal system as Oregon, but the state legislature there passed its own equivalent of HB2414 in 1993 and successfully switched over. However, not only does Maine's system work, but there was evidence this year that Washington's no-to-repeal system has some serious problems. Steve Novick argued in support of HB2414 here at BlueOregon back when it was first being debated. His reasoning boiled down to this: in the normal initiative process the sponsors of a ballot measure want voters to vote yes on a measure. However when it comes to referendums opponents of a legislative act first work to put the referendum on the ballot and then want the measure to fail, which is counterintuitive.

An article in the Seattle Times that ran before the election makes Steve look rather prescient:

Part of the confusion stems from the two-step referendum process for putting contentious pieces of legislation up to a public vote before they become law.
Usually, referendum supporters are for them before they are against them. 
In the case of Ref. 71, religious conservatives who originated the referendum and gathered signatures for it did so in the hopes that voters would throw the legislation out. They were "for" getting it on the ballot but now want people to reject it, thereby preventing the legislation from taking effect.
Supporters of gay rights, meanwhile, who were opposed to the referendum during the signature-gathering phase — why jeopardize something you believe in by putting it to a public vote? — now are asking voters to approve Ref. 71, thereby allowing the legislation to take effect.

A poll this summer by pollster Stuart Elway suggested some people have a hard time connecting those dots. Elway said some 10 percent who took part in the poll were unknowingly intending to vote on Ref. 71 in a way that would be contrary to their actual position.

If it's happening in Washington then it's more than likely happening here. It's not surprising that voters are confused by the fact that the sponsors of a referendum want it to fail. Between 1999 and today, there have been 95 measures on the ballot in Oregon. Out of those, only 3 have been popular referendums. For the other 92 measures, the people who put the measure on the ballot wanted it to pass (be they citizens or the legislature). It's predictable that voters would naturally assume that fact to be true for all measures. Take this hypothetical example; if you were to ask the average Oregonian what is the first word that comes to mind when they hear Bill Sizemore's name, I'm guessing the word would be "no". Over the past several years, it has become a routine for a majority of voters to automatically vote no on Sizemore-sponsored measures. Yet if Bill were to sponsor a referendum, that gut instinct to vote no would be dead wrong.

I believe that HB2414 could have averted this confusion, and I find it unfortunate that a knee-jerk reaction against the bill prevented an intelligent discussion of our referendum system. The timing of the bill was admittedly poor, and made it appear to be a political ploy designed to protect the legislature's tax bills in the face on impending referendums. I hope that the legislature will return to this issue next session when these measures are in the past and the appearance of ulterior motives is no longer a risk.

However, should the legislature revisit the topic, I do not believe that Oregon should simply switch to a yes-to-repeal system for referendums. Instead I would like to offer a completely different alternative. After last week's elections I began to research how other states handled this issue. To be honest I expected more states to follow Maine's lead, but that is not the case. There are 24 states that currently allow for referendums. Below, I categorize them according to what vote someone in each state would cast to repeal a referred law:

Oregon ballots should look more like this Clearly a strong majority of states do have the same system as Oregon, though referendums are very rare occurrences across the board. However, it's the "other" category that is most intriguing; specifically Nebraska. When a recently passed law is referred to the ballot in Nebraska, voters are not simply given a measure number and asked to vote yes or no. Instead, on their actual ballots, voters are given a description of the referred law and two statements explaining the consequences of either retaining or repealing the law. Then voters choose between two options; "Retain" or "Repeal". To the right I have attached a picture taken from a sample ballot showing Nebraska's most recent popular referendum in 2006.

In my mind at least, the superiority of this approach is self-evident. Nebraska's retain/repeal system for referendums is straightforward, uncomplicated, and leaves little room for confusion. In other states, the meaning of a yes or no vote depends entirely on how a referendum is worded. Voters must pay careful attention to whether they are being asked if a law should be kept or overturned, and then answer that question with a yes or no. Nebraska simplifies the process by allowing voters to choose the exact option they want. I highly doubt that you would see the same level of voter confusion under the retain/repeal system as was recently present in Washington.

Oregon should follow in Nebraska's footsteps on this issue. We shouldn't have to question if all Oregonians' votes are in accordance with their true intentions. Switching to a retain/repeal system would resolve the confusion caused by our current yes/no system, would be a very easy change to make, and would avoid the "yes means no" headlines that were responsible for killing HB2414. That sounds like an easy decision to me.

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    Fantastic post, Nick. I love the idea of "keep the law" and "reject the law" as options.

    On regular ballot measures, I've long thought that we should move beyond "Yes" and "No" and instead offer up two alternatives. "Option A" would mean 1, 2, and 3. "Option B" would mean 1, 2, 4, and 5.

    We print the full text of ballot measures in the voters' pamphlet. Many voters, I believe, are ignorant of the "bold means new text" convention -- they try and read the statutory language, see something they agree with, and vote yes. But if it's not in bold, that's the part of the measure that's already law.

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    Nick, a suggestion for a follow-up post: What will it take to make this change? Is it a constitutional amendment, a revision to the law, or a new rule from the elections division? And how do we make it happen?

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    Kari - I will look into it but given what happened with HB2414 I am 90% certain it would be a simply statutory change made by the legislature. I imagine that the will to do it will still be there, especially without the "yes is no" media blowback, unless the Democratic caucus suddenly changes its mind.

  • Mike M (unverified)


    RE: Voting for Option 1,2,3 or 1,2,4,5

    I seem to recall that there is an issue preventing a measure from changing or implementing multiple things.

    This came up several years ago when it was suggested to have one referendum that would simultaneously reduce one tax while implementing another tax.

    In other words, referendums must be single issue.

    As for yes means no, or no means no, it is all in the language, The challenge is to explain things simple enough for everyone to understand the intent.

    The cognoscenti here can easily parse any ballot description and determine the appropriate way to vote. The problem is providing a simple explanation to the masses. There is no easy solution to that one, and we're not likely to simply mark our ballots with an "X".

    Recall what other states also do - pols prepare sample ballots with pre-marked selections. These are offered to voters before they enter the polling places to help them remember who or what to vote for with little or no explanation. Same goes for newspapers with sample ballots, accompanied by their endorsements. In the end, it doesn't really matter what the language is on the actual ballot.

    And of course, there is that excellent example down in Palm Beach County where the ballot was very clear yet people still voted for the unintended person.

  • Peri Brown (unverified)

    And Maine has some of the only republicans you can hold a decent conversation with. What a coinky-dink. Not really impressed with some WA Dems, either, such as the Senator from Realplayer.

    You don't think the prob with the WA system is that it smacks of a double negative, and the average person can't process that anymore, do you?

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    Nick, I also agree that this is a good idea. The ballot assignment process can certainly be improved.

    However, I strongly disagree with the false impression you are giving the readers about the circumstances surrounding how this bill came to consideration.

    HB 2414 was a totally unrelated bill that was gut-and-stuffed late in the session. The amendment you are describing was not subject to public hearing nor public debate, nor was any bill containing the substantive provisions of the measure debated, nor even introduced in committee.

    To suggest that the entire process was anything other than an ill-advised attempt to slide in a (favorable) radical change under the radar is a gross mis-characterization of the events.

    Thankfully, Democratic leadership thought better of it and withdrew the amendment.

    Like you, I would welcome reconsideration of the entire "yes" and "no" concept and would favor something that clarifies the ballot title process for all initiative and referenda. But let's not allow partisanship to blind us to so obvious an abuse of the process.

    If the Republicans had tried something similar, I can guarantee that Democrats would scream bloody murder, and rightfully so. What purpose, then, is served by turning a blind eye when your own side does it? From my point of view, all that does is feed into the cynicism of voters while leaving the door open to future abuses of process.

  • Brian Collins (unverified)


    This is a great idea. Thanks for doing this survey of what other states do.

    Here's something to think about - could we do even better than retain or repeal? What about implement or reject? Keep or discard? Approve or veto?

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    sjp - My point here is to defend the idea, and not the process. As I said, the timing of the bill was poor due both to the all but certain impending referendums, as well as the fact that it was too late in the session for a new bill (leading to the gut and stuff). I hope that they revisit the topic next session so that the bill can get full and proper consideration,and so that the process doesn't distract from the content.

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    My view of that particular bill is that it was intended to take advantage of favorable polling that showed that it is preferable to advocate for "no".

    However, I am also sanguine about the ability of voters to know their own intentions when they vote, particularly with regard to tax measures. I don't believe that changing "yes" to "no" would have made any difference whatsoever in the results of the January election.

    On the broader issue of reform, I think that your idea is worth exploring.

    But on the narrow question of 2414...

    Why should we believe that changing "yes" to "no" in a way that brings the statute out of harmony with both the Oregon Constitution and 100+ years of historical precedent would not result in greater voter confusion?

    Are we to believe that voters are less well-educated or informed today than they were 100 years ago?

    Frankly, the whole episode reminds me of a late night infomercial selling a solution to a non-existant problem

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    One other point...

    Although it may be true that having to advocate for "yes" removes a favored (and cheap) ad hominem from the toolbox for some of the groups who often find themselves playing defense (i.e., "Vote no to stop < INSERT VILLAIN >"), I don't necessarily believe that "forcing" the "good guys" to advocate for a positive agenda: "Yes for seniors, yes for schools, yes for public safety" is inherently a bad thing.

  • HGH For Sale (unverified)

    This no doubt made for a great headline, but it was inexcusably ignorant of what the bill would actually do. I think it's unfortunate that the idea was dropped.

  • Lord Beaverbrook (unverified)

    Posted by: HGH For Sale | Nov 13, 2009 5:31:20 AM

    This no doubt made for a great headline, but it was inexcusably ignorant of what the bill would actually do. I think it's unfortunate that the idea was dropped.

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  • Scott Shorr (unverified)

    RE: Voting for Option 1,2,3 or 1,2,4,5

    I seem to recall that there is an issue preventing a measure from changing or implementing multiple things.

    This came up several years ago when it was suggested to have one referendum that would simultaneously reduce one tax while implementing another tax.

    In other words, referendums must be single issue." Mike

    Mike, it depends if the initiative, referral or referendum is a constitutional amendment or statute. If it is constitutional, it must meet the "separate vote" requirement, meaning you must have a separate vote when your amendment might amend multiple parts of the Oregon Constitution. This is a very high standard and one reason why measure proponents seem to/may have moved away from amending the Oregon Constitution as often. If it is a statute, it can be subject to a single vote if the measure just relates to one broad, related subject (e.g, crime), which has been a fairly easy standard to meet.

    The City Club did a report on initiatives, referrals and referenda and there is a lot of good stuff in there - Scott

  • Tyrone (unverified)

    I hate to bring this up "Nick" (or whoever you're calling yourself these days), but to me, an Afrikan American and a member of the North Portland community for over 15 years, using "RETAIN" implies racism.

    Slaves were "RETAIN"ed by white landowners. Blacks were "RETAIN"ed from voting until civl rights.

    "Nick", I know you probably mean well, but we must avoid racial and inter-racial slogans / syntax.

    Also, I wish you would have reached out to local community organizations and do more research before you change our voting rights.

  • ex_democrat (unverified)

    The democratic party has lost its way. The Obama-Geithner administration oversaw one of the greaters transfers of wealth from the working classes to the rich in history. The Obama administration tacitly condones torture and militarism. And \the democratic party supported the largest setback in a woman's right to choose in decades -- the Stupack amendment.

    Its time for progressives to leave the democratic party!

  • Zarathustra (unverified)

    ex_dem, it's worse than that. Since the 2004 election progressives (read the early posts on THIS blog) have explicitly warned the party faithful that the same old two-faced one party system wasn't going to fly. In every case those comments were greeted with utter contempt. And I'm sure they see the strategy as having worked. "Held you at bay for 5 years. Won the Congress and White House". Well, no, across the board. We've been growing like an electrical fire smoldering in the insulation. And the Republicans lost the White House and Congress much more than you won it. They've as much inertia as the Reps, and given the aforementioned, our complaints to them are as tears in the rain.

    I think that since Howard Dean had to bow out of the Presidential race that Dem Party logic has turned toward seeing progressives as an equal threat with conservatives. They are only interested in our participation long enough to learn the talking points. We're then booted, and our logic shows up as schmarmy marketing bullits in their next stump speech.

    It's obvious to most. And most progressives don't think "party". Unfortunately that's what Dem leaders are banking on, I think. They think there's enough people that can't get along without a party that they'll put up with their tepid progressivism. Like I've always said, political parties chose animal symbols so that those that couldn't read could vote. In the 21st century they function that way for people that can't think.

  • Delonghi (unverified)
    <h2>I love the idea of "keep the law" and "reject the law" as options.</h2>

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