Lying to the Voters in Ballot Arguments

The ballot materials provided to California voters include pro and con arguments on the initiatives and other measures submitted to the voters. Opponents tend to exaggerate how extreme the measures are, and proponents tend to play down these claims.

What happens when a proponent’s argument simply lies about what the initiative’s language says? Not surprisingly, the California Supreme Court held today that the plain language controls over the argument. Does it matter if the shamelessly lying proponent is the Governor of the State? Nope.

Proposition 57 of 2016 added section 32 to Article I of the California Constitution. Paragraph (a)(1) of that section provides:

Parole Consideration: any person convicted of a nonviolent felony offense and sentenced to state prison shall be eligible for parole consideration after completing the full term for his or her primary offense.

And, you might ask, where is the definition of the notoriously slippery term “nonviolent”? There isn’t one.

I have noted before that this portion of Proposition 57 is so poorly drafted that it appears to have been written on a cocktail napkin over drinks at a bar. I remain of that view.

At the time, there was a release order from a federal court in the prison overcrowding litigation that excluded two categories of felons: those convicted of “violent” offenses and those who were convicted of offenses requiring registration as a sex offender.

The argument of the opponents pointed out, correctly, that the initiative would authorize early parole for people convicted of a variety of sex offenses including rape by intoxication, rape of an unconscious person, and lewd acts with some minors. The rebuttal to this argument, signed by then-Governor Edmund G. Brown, Jr., et al., said this in response, as part of a list of bullet points:

Does NOT and will not change the federal court order that excludes sex offenders, as defined in Penal Code 290, from parole.

One can construct an interpretation of that statement that makes it literally true in isolation. A state initiative, even a constitutional amendment, does not of its own force change a federal court order. But note the ambiguity of “excludes sex offenders.” Excludes them from what? True, Proposition 57 does not change the fact that they are excluded from the federal court release order, but Proposition 57 does include them in the people to be eligible for release under its own terms, which was the issue being debated. In addition, this bullet point appears in a list that is prefaced by saying the argument of the opponents is wrong, and one of those arguments was that sex offenders who commit their crimes by drugs or by taking advantage rather than by physical force will be eligible for release.

In short, this bullet point was intentionally crafted to create an impression in the mind of the voter that sex offenders, whether “violent” or not, would be excluded from Proposition 57’s release provision. Intentionally creating a false impression in the mind of the reader is morally the same as lying, even if the statement can be defended as not literally false.

What does today’s decision in in In re Gadlin, S254599, say about the intentionally misleading bullet point? “Plainly, there is tension between the language of the constitutional provision directing parole consideration for all inmates convicted of nonviolent felonies and the assertion in the ballot argument that ‘sex offenders’ would be excluded from parole consideration.” (p. 36.) Tension? As Justice Scalia put it regarding another notorious use of that word, that is “rather like saying that there was perhaps an inherent tension between the Allies and the Axis Powers in World War II.” Walton v. Arizona, 497 U.S. 639, 664 (1990) (concurrence).

Not only that, says Cal. Supreme, but voters shouldn’t trust the lying clowns who write ballot arguments anyway. “The voters were explicitly warned in the margins of the voter guide that ‘Arguments printed on this page are the opinions of the authors, and have not been checked for accuracy by any official agency.’ ” (p. 36.) Really? There is a ton of authority in California initiative case law that the ballot arguments are important for interpreting initiatives. Now we are going to toss that out the window?

How about the fact that the lying clown was the Governor?

Our analysis of the voters’ intent does not change merely because the proponents of the initiative here included the Governor. The Department cites no authority for the proposition that the voters would credit the views of the Governor over those of the opponents, and we have found none.

Even so, the California Supreme Court was correct in today’s decision that there is no room in the wording of the initiative for a sex offender exception distinct from the violent offender exception. The ballot arguments are a type of legislative history, and that only goes so far when the text is contrary. As Justice White famously wrote for the U.S. Supreme Court, “No matter how clearly its report purports to do so, a committee of Congress cannot take language that could only cover ‘flies’ or ‘mosquitoes,’ and tell the courts that it really covers ‘ducks.’ ” Wis. Pub. Intervenor v. Mortier, 501 U.S. 597, 610 n.4 (1991). Legislative history is sometimes useful to resolve ambiguities, but first there has to be an ambiguity.

It would have been better, though, if Cal. Supreme had not gone so far to denigrate the importance of ballot arguments in initiative interpretation. Sometimes opinions go too far to justify their results and read more like briefs than opinions. Overstating the case can cause collateral damage. A statement like Justice White’s, above, is sufficient to justify disregarding a lying argument in this case without discounting the importance of honest ballot arguments to resolve genuine ambiguities.

So what is the definition of “nonviolent felony offense”? The California Department of Corrections takes the position that it is the inverse of the definition of “violent felony” that was codified in section 667.5(c) for the limited purpose of enhancing sentences of repeat offenders. It was not written to be an all-purpose definition, and many unquestionably violent crimes are not on the list, such as assault with a deadly weapon. The only authority for CDCR’s position is the same argument that the California Supreme Court disparaged in today’s decision. That question remains for another day.

Proposition 57 remains profoundly bad law. An effort to mitigate the damage was defeated this year due to a massive imbalance in campaign spending, the difficulty of explaining complex subjects to the public, and probably the Floyd Wave of public overreaction that stoked anti-law-enforcement sentiments. But the efforts must continue.