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January 05, 2009

Ballot Title Shopping

The Oregonian yesterday ran an opinion piece by Rick Attig regarding the ending of the practice of ballot title shopping. This is a topic I've addressed before, more than once (in fact, I've written about it more than twice!). So I was very gratified to read Bill Campbell's comments on the causes of ballot title shopping, posted in response to Attig's editorial.

I would hate to see Campbell's comments lost to the Oregonian's archives along with Attig's editorial, so I'm reproducing here what he wrote:

This past cycle I was part of the Open Primary initiative. We filed it in June of 2007, more than a year ahead of the filing deadline for signature submittal. But we only wound up with about 5 months to gather signatures.

The delay, the broken part of this process, is the ballot title process. If we fixed it, there would be far less need for Sizemore to flood the system with slightly alternate versions hoping for a decent title.

The process now is badly designed. The AG writes a title, and only those who respond are allowed to appeal. So you respond, just in case; in our case, it was fine, and we basically said so in our response.

But your opponents also respond; in our case their responses were filled with things with which we powerfully disagreed. However, we had no opportunity to counter them before the AG revised the original, decent title -- not because we didn't want to, but because the process doesn't allow for it.

The title the AG then came up with was from our perspective terrible -- but there's no recourse except to file with the Oregon Supreme Court. You can imagine how much THEY like getting these appeals.

At the Supreme Court, the AG was not a neutral party -- they were defending their ballot title (the one we didn't like). That's because in that part of the process, they see themselves then as lawyers defending the state, instead of public officials trying to get it right. And the court is programmed to defer to the AG.

In our case a key issue was the use of the term "open primary" in the ballot title. Those of you who voted this last election know it didn't appear. Well, it DID appear in the original AG ballot title draft, right on the first line. The AG decided to take it out because the opposition presented arguments which we had no opportunity to counter -- till we got to the Supreme Court, where the deck is stacked in favor of the then-AG-final version.

The other problem with the ballot title process is it takes way, way too long. The rules in the Supreme Court would require the briefing schedule to be completed quite quickly -- but the court pretty much ignored the schedule whenever someone asked it to. In one case it granted a 28 day extension to a brief that was supposed to be filed in five days -- an extension granted in response to a request filed on the fifth day! Even after briefing, the court is supposed to decide these titles promptly. But in our case it took three months after briefing was complete, and then another month for motions to reconsider and whatnot.

To be fair to the court -- they were only doing what they always do. They give litigants extensions routinely, because almost always, the time doesn't really matter very much; it's very very rare for anything important to depend on when they make their decision. This is why Courts are a terrible actor to ask to fix election matters -- the time matters a LOT, and the court is not institutionally set up to deal with it.

What's important here is that each month it takes to get a valid ballot title is a month that you cannot use to gather signatures (you can't gather signatures till you have a valid ballot title.) And it's another month delay in the time when you can get people to write you checks that take advantage of the Oregon tax deduction for political contributions -- because till you're on the ballot, you can't qualify for that deduction. So the seven months it took to get us a valid ballot title reduced our signature gathering window to basically five months -- not very much time to find the more than 100,000 people you need to get the 80k+ valid signatures to get things on the ballot.

The result of this lengthy, highly litigious, very expenseive process isn't a good ballot title, just a "legally valid" one. In our case, most people who read our title found it very confusing -- and it was. And it turns out that most people who vote on ballot measures only read the first line of the ballot title anyway. If they'd read ours, they would never have known it related to the open primary.

So I understand why Sizemore does what he does. The existing ballot title process is horrible, and there's too much riding on it. Anyone who engages in it thinking we have a nice procss that will get him a fair title, is nuts.

We have to decide in this state if we're going to preserve to ourselves an initiative process that works, in which case we should review the whole thing from top to bottom. There are serious problems with it in all kinds of places.

But frankly the easiest to fix is the ballot title process.

Have the AG first draft a title, then allow written comments opposing, then written comments on the opposition arguments, then a second AG draft, and then a repeat to a final.

Require that every comment include its own draft ballot title, and be less than ten pages, or it would not be considered. (Remember the entire ballot title is less than 250 words long!)

Doing this would mean that each of the AG's drafts: initial, interim, final -- was informed with a balanced view of the opinions of those who cared, and also the AG would be a "neutral" party each time. That doesn't happen now.

Court review of that final should be limited to a 45 day schedule, with briefs filed by each of the "yea" and "nay" sides on the same day kicking off the process. Answering briefs ten days later, no extensions, and reply briefs five days later, no extensions. The court then given thirty days to rule. The ruling would not be a rewriting of the title; it would just be a "court finds title good" or "not good" result; not good sends back to the AG, for another round.

Silence by the court would be the same as validation of the AG's final title.

Nobody has listened to reason on this issue, and it's a shame because it may now be too late to ever really fix the initiative process. Apparently, playing politics has been far easier and maybe even more important to our legislators than doing the right thing.

Posted by Becky at January 5, 2009 04:26 PM