August 03, 2010

Were Voters Being Stupid in Misunderstanding the Effect of a "No" Vote on Prop 8?

Eugene Volokh linked to my post from earlier today about the number of voters who opposed same sex marriage but voted "no" on Prop. 8. In an update to his post, Eugene disagrees with some of his commentators who say that the voting shows the stupidity of voters (or conservative voters). Pointing to an 11% error rate, Eugene says: "At most it might be an argument against popular votes on issues because even a small fraction of voter error can skew things dramatically -- a potentially important point (though one subject to the obvious counterarguments) but not a general indictment of voter intelligence."

I see a more fundamental problem with trying to draw conclusions about voter intelligence from the Prop. 8 vote. The ballot language was (perhaps deliberately) confusing. The Prop. 8 vote is a manifestation of the fact that voters are busy, and that referendums (as opposed to initiatives) which require voters to vote "yes" or "no" on existing law can easily be confusing when the question put up for a vote is phrased in the negative. In Proposition 8's case, the measure read: "Shall the California Constitution be changed to eliminate the right of same-sex couples to marry providing that only marriage between a man and a woman is valid or recognized in California?" (my emphasis).

My guess is if that there would have been considerably less confusion if the question was written to say: "Shall the California Constitution be changed to provide that only marriage between a man and a woman is valid and recognized in California?" This appears consistent with the full text of the statute. Indeed, the proponents sued Jerry Brown over the use of the word "eliminates" and lost. I've been involved with enough ballot measure litigation to know that the attorney general should not be entrusted with the responsibility of providing a neutral ballot title and summary, because he or she often has a political axe to grind and can be subject to pressure over ballot wording.

The error rate says a lot about ballot wording, but very little about voter intelligence.

Posted by Rick Hasen at August 3, 2010 02:10 PM