Two contradicatory ballot measures teach us better than one
This column was published at Zócalo Public Square. Photo credit: Via AI.
No man is happy but by comparison.
– Thomas Shadwell, poet laureate, United Kingdom (1689-1692)
If you want to better understand the true nature of a proposal, consider a counterproposal.
Looking at two competing proposals forces you to reckon with the different details of each idea.
Which is why every proposition on the California ballot should have a counterproposal listed next to it.
I raise this idea now because of a nasty fight in the State Capitol that made headlines earlier this summer. The fight was over a November ballot initiative and a possible counter to it from the legislature.
The initiative is a proposed repeal of the 2014 criminal justice reform measure known as Prop 47, which reduced penalties for crimes. This new initiative, now labeled Prop 36 on the November ballot, would increase penalties for certain drug crimes and thefts, as well as for criminal activities involving fentanyl. Prosecutors, county sheriffs, Republicans, major retailers, and the mayor of San Francisco are among its backers.
State Democratic leaders opposed the measure as a return to failed tough-on-crime policies. But they also knew that profound concerns about retail thefts and fentanyl meant the measure might well pass.
So, they sought to sabotage the initiative, by offering both an alternative ballot measure and a package of 14 bills that would achieve some of the goals of the initiative. The tactic backfired, causing a political firestorm instead.
The details of the controversy are complicated, so here’s the short version. Democrats included popular provisions in their bills that would be canceled if the law enforcement-backed measure were approved by voters and took effect. These provisions seemed designed not just to undermine the competing initiative but to add to voter confusion. The Democrats also gave their countermeasure some advantages, like a better ballot position.
This gamesmanship undercut the Democrats. Party leaders were criticized for appearing less interested in working toward an effective compromise to curb fentanyl and retail theft, and more interested in getting rid of a tougher-on-crime initiative that might boost turnout among Republicans in November.
In the end, with Democrats facing accusations of “election interference” from the media and Republicans, Gov. Gavin Newsom dropped the countermeasure.
Which was too bad. Voters would have benefited from a clear choice.
The controversy exposed a basic problem with California’s direct democracy. There is no fair, established, and voter-centered process for putting countermeasures on the ballot.
But it would be easy to put one in place.
Some countries with direct democracy have just such an established process for encouraging counterproposals. Switzerland, which has a ballot initiative system that inspired the establishment of California’s system 113 years ago, has the best.
The process is straightforward. When citizens or initiative groups have enough signatures to qualify an initiative, the legislative body gets to examine the initiative and negotiate with sponsors on a compromise that would obviate the need for the measure.
California established a similar process in 2014. It includes a 30-day period for public comments, and legislative hearings on measures once initiative sponsors have gathered 25 percent of the signatures necessary for ballot qualification. This has created new space for compromise between initiative proponents and state lawmakers. The proponents can now amend their initiatives, or even remove them from the ballot, if they reach an agreement with the legislature and governor.
If those negotiations fail, as they often do, the proponents go forward with their initiative. In response, the legislature can use its power to put its own measure—a countermeasure—on the ballot.
The difference between Switzerland and California is that California has no clear rules that govern these countermeasures. As a result, California countermeasures can be presented on ballots in ways that are haphazard or unfair (with the legislative measure having a more favorable title or position on the ballot, for instance). The measures aren’t linked together on the ballot, which confuses voters. (Have you recently been confounded by two measures on different parts of your ballot seemingly aimed at reforming dialysis clinics, or combating homelessness?)
The Swiss have a standard process for countermeasures that is fair. Each countermeasure is clearly labeled as such, and placed on the ballot right next to the initiative to which it responds. If California adopted this process, countermeasures would be labeled with the same proposition number as the initiative (the initiative might be 24A, and the countermeasure 24B), and with language that made clear that the measures were competing proposals on the same subject.
No gamesmanship.
In a Swiss-style process, California voters would have three questions to answer on each initiative. Yes or no on the initiative. Yes or no on the countermeasure. And then a third choice: if both of these measures pass, which one do you want to go into effect?
The benefits of such a three-part question would be obvious. Voters would have more clarity about their choices—and more power, regardless of whether their preferred outcome wins or loses. Even voters who oppose both the initiative and the countermeasure would be able to register a preference for the one they object to least. Ultimately, voting results would more closely match voter preferences.
I’ve spent considerable time observing Swiss votes on initiatives and referenda, and there’s another advantage to this three-question system. It produces better, more informative campaigns.
Right now, we California voters consider each initiative separately in the vacuum. We learn few details of the measures. Instead, we often vote based on our feelings about an issue, or by following the endorsements in a partisan voter guide.
A Swiss-style comparative campaign—where voters must choose between an initiative and counterproposal—forces voters, and the media, to delve into the details of the two measures. Because the natural question to ask of competing measures is: What is the difference between them? Answering that question requires looking at the actual language and policy detail.
Californians won’t have that option this November. Instead, their choices will be one measure, Prop 36, that proposes harder-line solutions to drug and theft problems—or maintaining the status quo.
The proposed Democratic bills and countermeasure, now abandoned, weren’t much better. But a transparent process would have allowed legislators to draft a better countermeasure, knowing it would go on the ballot right next to the initiative. Or to negotiate in better faith with the initiative sponsors.
Either way, a clear and fair process would have produced more choices for voters, and likely better public policy.
So, let’s give the people a counterproposal now.
