by By Caroline Hansen | November 1, 2020
When U.S. voters receive their ballots this year on November 3 (or before, by mail), most have likely only been thinking about the very top of the ticket. Even the most responsible voters often don’t know – or care – about everything on their ballots, especially the seemingly inconsequential state and local “issue, proposition, measure and amendment” questions near the end. What’s more, the language of these questions is usually indecipherable to the average voter, leading to haphazard selection or blank answers.
Those questions – innocuous at best, head-scratching at worst – have a name: ballot measures. And in their ability to either make new laws (in the form of ballot initiatives) or enact or repeal laws that have already passed the legislature (in the form of ballot referenda) they are also one of the most important, and controversial, aspects of our modern ballot. Because they change laws quickly, ballot measures provide an opportunity for interest groups and citizens with the requisite support to circumvent the normal lawmaking and editing process. But what started out as a tool developed to further democratic participation in lawmaking has recently fallen victim to corporate takeover in many instances, ironically allowing for the further exacerbation of the problem it was meant to solve: elite lawmaking.
The modern ballot measure was born in the Progressive Era (1890 – 1920). Upset with the greedy opportunism of legislators, Progressives rallied behind and successfully instituted procedures that allow citizens to have a hand at changing the law. Ballot measures really exploded in popularity, however, in 1978, after California’s Proposition 13, an initiative that produced sweeping changes for state property taxes.
Currently, 26 states allow citizens to put a measure on the ballot. Citizens must get the required number of signatures, which varies from state to state, to favor amending, overturning or creating a new state law, after which the state government suggests the measure on state and federal election ballots.[1]
But the general proposal framework belies a more complicated reality. U.C. Berkeley professor George Lakoff has described how challenging it can be to create a ballot measure as a private citizen after seeking to amend Prop 13 in California:
“About a decade ago I tried to change Prop 13 by proposing a ballot initiative as a private citizen … It required a change of two words in Prop 13, from “two-thirds” to “a majority.” By giving over 50 talks and constantly writing, I got more than 16,000 people to volunteer their spare time to gather signatures.
It wasn’t nearly enough. I discovered that there are companies that hire and train signature gatherers for ballot initiatives and they cost several million dollars. You need lots of money, especially if there are going to be ads. Moreover, you need high-powered political backers …”
Lakoff’s experience is indicative of the irony of the modern ballot measure – what was once a way for citizens to participate further in the democratic process has become basically only accessible to the powerful: those who can accrue hundreds of thousands of signatures through sophisticated, expensive means. Given the fact that money has become so paramount to the ballot measure process, ballot measures have largely been usurped by corporate interests. Ballot measures are now considered a fast and easy way to overturn competitively unfavorable laws passed through the traditional state legislative process. For example, in 2018, The Walt Disney Company and the Seminole Tribe of Florida (which runs many of the largest casinos in America), sunk $26 million into Amendment 3, an anti-casino initiative, to protect their Florida resorts from potential competition.
In 1998, Washington Post Columnist David Broder indicated that he “was able to verify at least $250 million spent on [ballot measures] at the state level … about $100 million more than the taxpayers gave the three presidential candidates in 1996 to conduct their campaigns for the presidency.” In 2020, that number swelled to $1.08 billion.
Roughly $194 million of the total this year alone has been devoted to California’s Proposition 22 (App-Based Drivers as Contractors and Labor Policies Initiative): the most expensive ballot measure to date. Prop 22 seeks to free up companies like Uber, Lyft, DoorDash, and Instacart from complying with AB-5, the 2019 state law that forced companies to provide employee benefits to gig workers.
A staggering 95% of the funds sunk into Prop 22 have come from the “yes” side, supported by the aforementioned gig-economy behemoths. Meanwhile, the remaining 5% reflects the efforts of unions and Democratic politicians, including Joe Biden and Kamala Harris.
Most of that money goes to advertisements and awareness campaigning on either side.
“The ‘no’ side always knew it was going to be outspent, but we didn’t think we’d be outspent 13 to 1,” Mike Roth, spokesman for the “No on 22” campaign said to the Los Angeles Times. “No corporations should be able to buy their own laws.”
Voters can easily fall victim to seductive advertising when general awareness of the matter is low, as is the case with most ballot measures. Alison Ledgerwood, a psychology professor at U.C. Davis testified to ABC10 to how well financed ballot measure campaigns can prey upon a vulnerable population, unfamiliar with state law: “These down-ballot questions aren’t the things most people were taught in their classes when they learned about government branches. I didn’t learn any of that stuff in school, so where are you supposed to learn it, right?”
Such is the case with Prop 22, where “yes” proponents have even turned to subliminal means to affect the voting population. Uber drivers launched a lawsuit against their employer after receiving relentless barrages of push notifications with biased information about Prop 22 while using the app.
“Let’s be absolutely clear,” David Lowe, an attorney for plaintiffs said in a statement replicated by TechCrunch. “Uber’s threats and constant barrage of Prop 22 propaganda on an app the drivers must use to do their work have one purpose: to coerce the drivers to support Uber’s political battle to strip them of workplace protections.”
Campaigning often even extends to the language on the ballot itself. In 2016, the Washington Post described a steadily increasing phenomenon of “targeting of secretaries of state [the officials tasked with writing ballot questions] with campaign donations, corporate-funded weekend outings and secret meetings with industry lobbyists.”
It’s hard to look at the language of Prop 22 without seeing bias in some form. The voting options for Prop 22 appear in the California ballot as follows:
A “yes” vote supports this ballot initiative to define app-based transportation (rideshare) and delivery drivers as independent contractors and adopt labor and wage policies specific to app-based drivers and companies.
A “no” vote opposes this ballot initiative, meaning California Assembly Bill 5 (2019) could be used to decide whether app-based drivers are employees or independent contractors.
Indeed – at first glance, a “yes” vote seems to support drivers rights and their flexibility, while a “no” vote instead subjects the driver to the inflexible order of the California Assembly Bill. Critics of Prop 22 have attacked this language, even suing the secretary of state Alex Padilla, noting that all AB-5 would do is to “require rideshare and other such companies to make their drivers employees,” and allow them to obtain more favorable benefits as well as a higher minimum wage
These factors in total – relentless, widespread general campaigning, most voters’ unfamiliarity with labor laws, and confusing wording on the ballot itself – make a strong case for “yes” proponents winning the day, retaining the gig-economy status quo.[2] If the Proposition does not pass, Uber and Lyft have threatened to pull out of California entirely, and increase fares by 25-111%. .
Granted, not every ballot measure has been dominated by corporate interests. Many measures are concerned with more typical legislative matters like redistricting, term limits, bond issues, and voting rights.
But the current pandemic-addled state of the U.S. has the potential to further exacerbate the phenomenon brought into dramatic focus by Prop 22. “This year … citizen-driven initiatives were really affected by the pandemic,” Amanda Zoch, a policy specialist at the nonpartisan National Conference of State Legislatures said to POLITICO. “How do you get signatures when you’re not supposed to leave your house or see other people? This year’s general election has 38 statewide citizen initiatives across the country. And that’s a big decrease — there were 60 in 2018 and 72 in 2016. Honestly, that’s a big story.“
So that means while we’re social distancing, we could be more impressionable than ever to the well-publicized and favored measures sponsored by big business.
It’s more important than ever to educate yourself on your state ballot to vote for what you really believe in. It might be one of the last exercises of true democracy we have left.
Caroline Hansen is a 1L at Harvard Law School.
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[1] There is one type of ballot measure that does not follow the standard process of citizen signature collection – a legislative referral, when a state legislature independently adds a referendum to the ballot. [2] Voter expectations from a recent CA poll are as follows: 39% yes, 36% no, 25% undecided. The “leading question” nature of Prop 22’s wording may swing that undecided over to a yes on Election Day.
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