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 Meanwhile Maine voters are asked whether or not the referred law should be repealed.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:

• Yes: Alaska, Maine, Wyoming
• No: Arizona, Arkansas, California, Colorado, Idaho, Maryland, Massachusetts, Michigan, Montana, Nevada, Ohio, Oklahoma, Oregon, South Dakota, Washington
• Other: Nebraska, Utah
• N/A: Kentucky, Missouri, New Mexico, North Dakota (These states allow for referendums but haven't historically used them so I cannot tell)

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.

By Nick Wirth Nov. 12, 2009