It will be up to the Kansas attorney general’s office to determine whether local governments can provide plain-spoken explanations of confusing ballot questions without revising state laws.
That’s what a panel of state lawmakers decided Tuesday after a lengthy debate over how to give voters more clarity when ballot referendums are full of confusing legalese.
The debate over ballot explainers stems from the dizzying question Wichita voters faced earlier this year on a referendum to reverse a tax incentive the Wichita City Council gave the Ambassador Hotel.
It read: “Shall Charter Ordinance 216 entitled: ‘A charter ordinance amending and repealing Section 1 of Charter Ordinance No. 213, of the city of Wichita, Kansas, which amended and repealed Section 1 of Charter Ordinance No. 183 of the city of Wichita which amended and repealed Section 1 of Charter Ordinance No. 174 of the city of Wichita, Kansas, pertaining to the application of revenues from the transient guest tax’ take effect?”
The jargon-filled question baffled many voters. The secretary of state’s office said local election officials shouldn’t try to interpret ballot questions for voters, leaving voters dependent on the interpretation of special interest groups, friends or news outlets to help them understand what a yes or no vote would mean.
“This is a type of disenfranchising voters,” said Rep. Jim Howell, R-Derby, whose push for ballot explanations stalled during the legislative session earlier this year.
But questions about who would write the explanation and whether it could be biased enough to influence voters to vote in a particular way continued to complicate the discussion. And some lawmakers asked how far the government should have to go to inform voters and how effective that would be.
“I just don’t think we can legislate having informed voters in this state,” said Rep. John Rubin, R-Shawnee.
But Howell said that voters deserve clarity. He said that the officials who would be tasked with explaining the ballot questions could do so impartially, similar to how judges are expected to set their opinions aside and make professional decisions.
At least eight states require some form of explanation for ballot issues, but states have a wide variety of rules about who writes the explanation and where the explanation is posted, legislative researchers said.
Howell’s bill would allow the explanation to be written by the county or district attorney. It could then be reviewed by the secretary of state or attorney general to make sure it doesn’t favor a particular position on the issue.
Rep. Ann Mah, D-Topeka, warned that whoever was in power would have a lot of control over how ballot questions were posed and how explanations were worded.
She cited the push for ballot initiatives about President Obama’s health care plan and how the state appoints Supreme Court judges as examples of how voters could be misled about the impact of their vote.
Although many experts agree that a state referendum about the Affordable Care Act wouldn’t have any impact on the federal law, many lawmakers and conservative political groups claimed that such a ballot initiative, which failed in the Senate, would have let the state opt out of the federal law.
State researchers said they think Wichita might have been able to provide an explanation of the hotel tax vote earlier this year, despite its top lawyer’s opinion that the city couldn’t. But it remains unclear whether other jurisdictions such as counties and school boards would have the same authority.
Rep. Scott Schwab, R-Olathe, said confusing ballot questions are an urgent problem, but he said the attorney general should research and issue an opinion about what local governments can already do. And he and others questioned whether such explanations would lead to lawsuits against local governments over the phrasing of the ballot question explanation.
Rep. Les Osterman, R-Wichita, said potential lawsuits are no excuse to not explain confusing questions, which can be particularly tough for elderly residents who don’t have access to the Internet to research the issue. He said the Legislature has passed many bills after being warned that they could generate lawsuits.
“Everything we do up here can cause a lawsuit for the state – right, wrong or indifferent,” he said.
Kansas Secretary of State Kris Kobach said he generally supports the idea of ballot explanations. But he said his support will hinge on how well local election officials are protected from lawsuits.
“Voter confusion does not result in lower voter turnout,” he told the committee. “Many may not realize the question is worded in a confusing way until they see it on the ballot.”
But he said international studies show that if voters are confused, they tend to vote no.
“It’s sort of human nature,” he said.