Popular sovereignty, the ultimate sovereignty of a
people as a whole, is typically exercised by an electorate at the ballot box.
Such sovereignty is above that of governments (i.e., governmental sovereignty),
which might come as a surprise given how little voters actually decide.
Typically, the will of the people is limited to filling public offices by
selecting among candidates or write-ins. In the last few decades of the
twentieth century, California effectively expanded the power of popular
sovereignty by adding a number of referendum questions to the ballots, but even
those questions have not come close to covering the full spectrum of major
policy issues, which are typically left to the office-holders: the agents of
the People. Even though the popular sovereign (i.e., the direct will
of the people) can make mistakes—such as requiring a 2/3 legislative majority
to pass a tax increase in California—the expansion from merely filling public
offices to actually making basic public policy decisions is from a democratic
perspective a good thing. The key is to go broad enough that judgement rather
than technical expertise or specialized knowledge is used. This effectively
franchises at least the vast majority of an electorate as nearly everyone is
capable of making a judgement among competing values, whereas a small
percentage of people are highly educated in any given society—even in advanced
industrial states.
The problem, it seems to me, lies in how the policy questions
on a ballot are written. In particular, they must be written in such a way that
they are understandable to the typical voter. Writing a question, whether on
policy, law, or a constitutional amendment, in legalize circumvents the
expansion in popular sovereignty. Such an approach defies common sense itself,
and yet it the Florida legislature did just that in 2012, placing the Florida
electorate in a nearly-impossible position as the popular sovereign. Perhaps
the legislators knew that the incomprehensible legalize would effectively
safeguard their existing power.
Concerning the 2012 election in Florida, The Florida
Times-Union in Jacksonville wrote, much “of what’s on the ballot is
legalese and difficult-to-understand wording associated with the amendments.”
The newspaper advises Florida’s citizens, “To save time, it will help to know
what each amendment does, how you want to vote, and if a “Yes” or “No” achieves
that desired vote. In short, be prepared.” Much too much is assumed in this
advice concerning the wherewithal of the typical citizen to make sense of the
technical legal words, and even to research each question before voting in
order to understand what the technical language means (assuming that
the typical voter is going to wade through even the newspaper’s own
deciphering). In general, assuming too much of an electorate
reflects negatively not on the electorate, but, rather, on the legislators who
crafted and approved the ballot’s language.
For example, the matter of the
third proposed amendment on the Florida ballot was put to the voter in the
following words (from the ballot): “This proposed amendment to the State
Constitution replaces the existing state revenue limitation based on Florida
personal income growth with a new state revenue limitation based on inflation
and population changes. Under the amendment, state revenues, as defined in the
amendment, must be deposited into the budget stabilization fund until the fund
reaches its maximum balance, and thereafter shall be used for the support and
maintenance of public schools by reducing the minimum financial effort required
from school districts for participation in a state-funded education finance
program, or, if the minimum financial effort is no longer required, returned to
the taxpayers.” Besides the basic, rather obvious point that the typical voter
could not possibly be expected to understand this language (and yet someone approved
it nevertheless!), the language assumes that
the voter knows what goes into the existing revenue limitation (and can thus
compare it with basing a limitation on inflation and population changes).
Furthermore, the voter is assumed to be familiar with what a budget
stabilization fund is, and able to assess its dynamic (e.g., maximum balance,
etc.). The proposal is so specific, moreover, it may be misplaced as basic or
constitutional law rather than as a mere statute. Indeed, the decision on the
question is more along the lines of governmental than popular sovereignty
(i.e., the elected representatives, who write laws and thus either understand
the legalese or have a staff that does).
Supposing perhaps that the typical voter has a
real estate brokerage license, the fourth proposed amendment on the ballot
states in part: “In certain circumstances, the law requires the assessed value
of homestead and specified nonhomestead property to increase when the just
value of the property decreases. Therefore, this amendment provides that the
Legislature may, by general law, provide that the assessment of homestead and
specified nonhomestead property may not increase if the just value of that
property is less than the just value of the property on the preceding January
1, subject to any adjustment in the assessed value due to changes, additions,
reductions, or improvements to such property which are assessed as provided for
by general law.” The legislators erred, in my view, in projecting their own
language onto the general public, and, moreover, in conflating what is actually
a statute with constitutional language, which is (or at least should be) much
broader.
Another proposed “amendment” was for “an exemption
from ad valorem taxes levied by counties, municipalities, school districts, and
other local governments on tangible personal property if the assessed value of
an owner’s tangible personal property is greater than $25,000 but less than
$50,000.” Besides the Latin term and the legal jargon, the specification of the
dollar figures is clearly statute-level rather than constitution. Furthermore,
how many Floridians knew what “ad valorem taxes” are?
To be sure, some items of detail should be decided
by the People’s agents because broad judgment is not required. For example,
could not the legislators have been entrusted with making the decision on
whether to “replace the president of the Florida Student Association with the
chair of the council of state university student body presidents as the student
member of the Board of Governors of the State University System.” Is this even constitutional language? The typical
voter might legitimately have wondered, what is the council
of state university student body presidents, and is it really much different
than the Florida Student Association? Moreover, why am I being asked to decide
this? Because popular sovereignty is superior to governmental sovereignty, that which a legislature puts to the
electorate to decide must reach a certain threshold of importance. Deciding
on contending student representatives so obviously does not meet this test that
one might wonder whether the Florida legislature was fit even to legislate,
much less address matters to the agents’ principal—the voters as a group.
The truly unfortunate thing about Florida’s
bastardization of popular sovereignty is that sensible proposals to expand popular sovereignty could face unnecessary hurdles based on botched
attempts to have an electorate decide on proposed constitutional amendments. In
other words, by using legalize, the Florida legislators set the electorate up
to fail. Going back to limiting popular sovereignty to the selection of
candidates would suffer from the fact that so many reasons go into why voters
elect a person to an office that it is impossible to say that the majority of
the voters have expressed a general will on a given policy by electing a
particular candidate.
Here’s what the Florida legislature missed: Whereas
the typical voter does not have a basis in real-estate, accounting and law, he
or she could be expected to reflect on and give an answer to questions such as:
should abortion be illegal, should the U.S. give aid to Israel, should
military spending be cut, should Florida provide subsidized health insurance to
residents unable to afford it, and should property taxes be cut to reduce the
deficit or raised to add funding to roads and education? A
legislature could even add some non-legal terms to such questions to clarify
them without losing the typical voter, and testing such questions by using
focus groups could add confidence that the legislators have not unintentionally
projected too much of their own world into the wording. Additional specificity
could be handled by the agents (i.e., the legislators), as per the nature of
principal-agent relationships.
In short, expecting too much from the electorate
is not only utterly unfair to the voters, it also risks undercutting real
progress on popular sovereignty, an electorate being fully capable of deciding general policy
and even law, with the legislative agents then being tasked with writing the
expressed general will into legal language. Yet
legislators have so much power in deciding major policy that being mere implementers
would surely be a let-down. Hence they would resist efforts to enhance the
People’s exercise of popular sovereignty.
Sources:
Matt Dixon, “Florida
Constitutional Amendments: Voter’s Guide,” The Florida
Times-Union, October 13, 2012.
