[EL] the law regarding the neutrality of referendum explanations in voter information handbooks

[J.H. Snider]

I am seeking to identify the best state law ensuring the fairness of referendum explanations in government provided voter information handbooks.  The question is motivated by the Rhode Island Secretary of State's practices regarding the explanation of Rhode Island's periodic constitutional convention referendum in the voter information handbook that he distributes at taxpayer expense to the half million registered Rhode Island voters shortly before the election.

On most questions, the Secretary of State either has relatively little discretion in his explanation format (e.g., bond referenda) or has little opportunity to bias voter decision making because the voter has strongly developed, well-informed opinions on a subject (e.g., abortion).  With periodic constitutional convention referendums, however, the situation is different.  The Secretary of State has substantial discretion in wording his explanation and, due to extreme ignorance among a large fraction of the electorate about how a constitutional convention works and what is its democratic function, has an opportunity to significantly affect the outcome.  An example of the extreme variation and arbitrariness of the Secretary of State's wording on this referendum issue, with no intervening change in law, can be found by comparing his explanations in 1994<http://rhodeislandconcon.info/wp-content/uploads/2014/07/1996-11-VoterInformationHandbook-ShallThereBeAConvention.pdf> and 2004<http://rhodeislandconcon.info/wp-content/uploads/2014/05/2004-11-VoterInformationHandbook-ShallThereBeAConvention.pdf>, the last two times the periodic referendum was on the ballot.

The statute mandating that the secretary of state produce and distribute a voter information handbook on referenda has no explicit requirement for not favoring one side or the other in his explanation.  Nevertheless, it is universally understood that the secretary state should not write such explanations with a pro or con bias.  Here is the key language from Section 17-5-3 concerning what is to be included in a referendum description:

(1) The designated number of the question;

(2) A brief caption of the question;

(3) A brief explanation of the measure that is the subject matter of the question; and

(4) A notice that voter fraud is a felony and the penalty for voter fraud.

The mechanism by which the Secretary of State injected bias into his explanation in 2004 and may do so again in 2014 is quite subtle.  Since 1973, Rhode Island's Constitution has included a periodic referendum on convening a constitutional convention and included a requirement that legislative leadership appoint a bi-partisan preparatory commission to conduct public hearings and write a report<http://www.providencejournal.com/opinion/commentary/20140802-j.h.-snider-and-beverly-clay-r.i.s-poor-preparation-for-convention.ece> about what issues such a convention might address.  In implementing that provision, the legislative leadership has not only ignored the intent of the Framers<http://rhodeislandconcon.info/wp-content/uploads/2014/08/2014-08-21-JohnPartridge-Bi-PartisanPreparatoryCommissionTestimony.pdf> (p. 2) but has come to expect that the Secretary of State will defer to the Commission's report in drafting his explanation of the referendum.   There is no legal requirement that the Secretary of State obey the wishes of the legislative leadership in this regard.

The Commission reports in recent decades have been scrupulously factual yet highly biased.  For example, they describe the expected cost of a convention but not the cost of not having a convention, even when speakers during the public hearings have described the potential benefits in detail (e.g., the potential cost savings from granting the governor a line-item veto).   The purposes of a convention have also been explained in a biased way.  The focus has been on explaining that a legislature could initiate the same type of constitutional amendments as a popularly initiated constitutional convention, with no mention of the fact that a legislature might have a conflict of interest in addressing certain types of issues such as redistricting reform or executive powers.  The combination of the cost and democratic purpose arguments leaves the clear impression that voting for a constitutional convention would be a needless waste of money.

This year a former Rhode Island Supreme Court Justice wrote to the Secretary of State arguing that including costs without benefits in his handbook would violate the law, which only mandates cost estimates be included for bond issues.  But the Secretary of State retains discretion to link to the Commission Report and implicitly endorse the Commission's findings; e.g., by not actually explaining the function of a periodic constitutional convention as a checks & balances institution within Rhode Island's system of government.

I think it most likely that a court wouldn't weigh in on such subtle questions of wording, even if the law was held to require neutral wording.  Such a legal question would, in my judgment, be viewed as a political question.  But the secretary of state may be a term limited lame duck (as is the current secretary of state, although with higher political aspirations), thus weakening the conventional political accountability argument.

The result is that the Secretary of State has a mailing list to every registered voter, uses that mailing list to send referendum information to each of those voters with the government's imprimatur, does so shortly before the election when voters are most impressionable, especially on certain types of low-information referendum topics, has wide legal discretion to bias the explanation, and may be a lame duck, thus immune from the most fundamental type of political accountability.

Are there any best practices out there for drafting neutral language on questions such as a constitutional convention referendum?  Is some type of pro and con format a more reasonable way to minimize bias in such explanations?  Is there any due process requirement that a secretary of state release a draft for public comment before it is finalized and printed?

I will be at the APSA election law dinner this coming Saturday and hope that any of you there and interested in this subject will share your thoughts with me.

Sincerely,

J.H. ("Jim") Snider, Ph.D.
President of iSolon.org<http://www.isolon.org/>
Administrator of The Constitutional Convention Clearinghouse<http://concon.isolon.org/> and RhodeIslandConCon.info<http://rhodeislandconcon.info/>
E-Mail: snider at iSolon.org<mailto:snider at iSolon.org>
Phone: (202) 540-0505
Fax: (408) 228-0577

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