By Christopher Keslar
In the 2012 elections, a Redistricting Amendment to the Ohio Constitution was put on the ballot. Known as Issue 2, the amendment would have created a commission of twelve citizens to draw legislative and congressional maps. The amendment was defeated at the ballot box by a resounding 63% against and 37% for the amendment. To many, partisan redistricting is only a polite way of saying gerrymandering, and this very process of the state legislature choosing who will essentially elect them is provided for in the Ohio Constitution. In fact, the Secretary of State of Ohio, John Husted, wrote in the Washington Post this February, “[I]f government is to be more responsive, it is not the people but the Ohio Constitution that needs to change.” However, it may very well be the case that John Husted was the reason for Issue 2 failing at the ballot box.
In 2012 I was an undergraduate student at Miami University in Oxford, Ohio. I received my absentee ballot in the mail and started working my way through it. After wondering to myself “Why in the world am I electing members of the Judiciary?” I reached the part of the ballot pertaining to Issues. The first, Ohio’s twenty year option to hold a constitutional convention to “revise, alter, or amend the constitution,” and after that a two column monstrosity of an issue that made me cringe. I must confess, I voted against it. I thought it looked too complicated and surely there could be an easier way to redistrict.
Later that month I had a chance to hear from a visiting law professor, Dan Tokaji, speak about Issue 2. Professor Tokaji had helped to draft Issue 2 and was discussing why it was defeated so handily in the election. He believed that the confusion of voters was mostly responsible for Issue’s defeat. After his talk, I went to him and told him that had the amendment been described as he had described it, I probably would have voted for it. It was then that I learned that the Secretary of State is the one who controls what is seen on the ballots. Before I had always assumed, as I would imagine most voters would, that the description of an issue on the ballot was the official description as provided by the crafters of the amendment; however, according to the Ohio Constitution a ballot board (led by the Secretary of State) decides the ballot language.
According the state constitution, the ballot language need only “properly identify the substance of the proposal to be voted upon…need not contain the full text nor a condensed text of the proposal” and the language will only be invalid if “it is such as to mislead, deceive, or defraud the voters.” Of course this does not prevent a description which makes an amendment seem too complicated or convoluted, as was the description of the amendment that turned me off to it. He agreed that the technically heavy description could very well turn off voters. In fact, according to Professor Tokaji there was a lot of misinformation about Issue 2, much of which made the solution look much more complicated than it really was.
The board that voted for the ballot language was split along party lines, and as early as September of 2012 the Republican dominated Ohio Supreme court ruled that the board would have to rewrite the ballot language as it would “fatal” to the amendment’s passing. This first version was much shorter than the proposed language of the proponents of the legislation because of the Secretary’s concern for postage cost of those mailing in the ballot. The Ohio Supreme Court found that the proposed language omitted material elements of the amendment.
It is clear from the final product that the board addressed the problem of too little and inaccurate information in the first proposed language on the final ballot. Yet, it is clear from my conversation with Professor Tokaji and his description of the amendment that the amendment may have several components but could still be easily explained. In short, the first version of the Issue was written to deceive voters, the second to confuse them.
This brings up the real reason I believe Issue 2 failed. Honestly, who believes that every voter, even the majority of voters, researches every issue on the ballot? For many the ballot description of an issue will be the one on which they decide—as it was for me on this election. For a possible solution to a problem that is widely recognized, the fact that a difference in wording, crafted by a politician and not the proposer of the amendment, can make such a difference is a disturbing thought. How do we know if what we think we are voting on is actually what we are voting on?
Professor Tocaji has come to the conclusion that this is a problem with redistricting itself and that it is not reasonable to expect any but a small minority to understand the details of the process. For more on this string of thought see Partisanship, Public Ophion, and Redisctricting.
I cannot believe, and neither can Professor Tokaji, that this solution to a well recognized problem could be defeated so soundly on its merits alone. I can believe, however, that the fears of an overly complicated cure that could be worse than the disease drove people away from reform. These fears were not assuaged at all by coming to the end of a long ballot only to find an issue spanning two and a half columns of text.
Here, it seems, we have the classic case of Goldilocks forgetting to try the third chair.