Why I vote “no” on (almost) all California ballot propositions, even if I agree with them

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Oct 16

Why I vote “no” on (almost) all California ballot propositions, even if I agree with them

Ballot measures are a measure of last resort and we should all treat them that way. Here is how I decide which ballot props deserve a “yes”.

TL;DR

  • Ballot propositions are a weapon of absolute last resort with significant negative externalities
  • The only ballot measures that deserve consideration are those that are 1) critically important (the “compelling interest” standard), 2) well-drafted and clear, not overly specific, and reasonably future-proof, and 3) structurally impossible to pass as a regular law
  • In practice, this usually includes 1) good governance measures that incumbents don’t like (e.g. redistricting) and 2) civil rights measures that special interests or religious conservatives don’t like (e.g. drug reform, prison reform, gay marriage)
  • Most ballot measures fail one or more of these tests. When in (any) doubt, vote no

Ballot measures are a weapon of last resort

All ballot measures incur real costs and do real damage to our state by increasing the legislative sclerosis of the state government.

There are 17 statewide ballot propositions this year plus countless county- and city-level measures, including 25 in San Francisco alone. A lot of people get overwhelmed trying to decide how to vote on each one. This is the wrong approach. Ballot measures are not normal laws — they are essentially permanent, changeable only by subsequent ballot prop. This means that agreeing with a ballot prop is not a good enough reason to vote for it. Think of a political opinion you currently hold — how confident are you that you’ll still feel that way in 38 years?

If “38 years” feels pretty specific, it’s because it takes us back to the year Prop 13 was passed in California. Prop 13 was nominally designed to protect homeowners from being forced out of their homes by runaway property taxes. In reality, it (permanently) ushered in decades of financial upheaval, legislative deadlock, and structural unfairness. The historic injustice of Prop 13 is a topic for another time. The point is: Prop 13 seemed reasonable at the time, a counterweight to an acute period of property tax increases. Ballot props are unintended consequence magnets.

So which ballot measures are worth the cost?

To identity a ballot prop worthy of consideration, ask the following three questions:

  1. The compelling interest test — is this of such dire importance that the nuclear option is called for?
  2. The 38-year test — is it well drafted, clear and concise, not overly specific, and reasonably future-proof?
  3. The last resort test — is there a really good reason why it can’t become law the normal way?

Needless to say, almost all measures fail at least one of these criteria, and many fail all three. Let’s break them down.

The “Compelling Interest” Test
Is this really really important?

You may recall the “compelling interest” standard from Con Law 101. It describes a long-standing Supreme Court precedent that our rights may be restricted if there is a compelling interest in doing so. For example, “free speech” does not mean you can yell “fire” in a movie theater. Ballot measures should be held to the same standard. Now, each of us has our own “compelling” issues. For me, it’s civil rights and structural injustice. You may think that major financial or tax issues qualify, or environmental issues. But make sure you think the issue is really important before considering a ballot prop — even if you agree with it.

Some recent measures that fail this test: mandating a certain amount of space for chickens, regulating plastic bags in grocery stores, requiring condoms for adult film performers. Maybe you agree with these, but they are not important enough to call for a ballot measure.

The “38 Years” Test
Are you confident this law is clear and well-written enough to last 38 years?

The next and probably most important step is to look at the law itself — this means you must read the text. Not just the short ballot summary — the actual law. Because most ballot measures are abhorrently written. Many propose overly specific solutions or are overloaded with unrelated or unnecessary provisions. For instance, Prop 65 this year not only bans plastic bags, but specifies that plastic bag revenue be directed to a particular agency for distribution to environmental causes. Prop 67 also bans plastic bags — but without the environmental fund — as well as granting $2 million to plastic bag manufacturers(!) and offering a narrow exemption for people on food stamps. These overly specific measures clearly fail the 38-year test.

Another good example of a badly written measure is 2015 San Francisco Proposition F (the “Airbnb law”). Prop F was nominally intended to address a very real issue in the housing market where short-term rentals remove housing supply from the rental market, driving rents up and worsening the housing shortage. But the measure itself was a smorgasbord of sloppy regulations, including a cap on days rented per year that is enforceable only if you assume that Airbnb is the only place to list short-term rentals. Even if you believe that short-term rentals should be restricted, Prop F would have been a terrible way to do it (it was defeated).

One trap that left-leaning people (e.g. me and most of my friends) often fall into: “Big Pharma/Big Tobacco/Wall Street/Republicans oppose it, so it must be good!” WRONG! Just because “bad guys” oppose it doesn’t mean it’s a good law. A good example is Prop 37 in 2012, which required very specific food labeling for GMO. It was opposed by Monsanto, which made California liberals viscerally like the law. But if you actually read the text, it was horribly written, completely unclear, and reliant on unsettled science. The authors of Prop 37, who held the (reasonable) view that stronger food labeling for GMO was important, wrote a sloppy, slapdash law they knew Monsanto would oppose, so they could say “Monsanto opposes this! Vote against Monsanto!” Luckily, in this case the voters didn’t fall for it, but they often do.

The “Last Resort” Test

Even if it’s really important and well written, that’s still not enough — the final question is, if this is so important, why hasn’t the legislature already passed the law? In my experience, there are three major categories of laws that seem clearly good yet cannot pass the legislature:

  1. Good governance measures that incumbents don’t like (e.g. redistricting)
  2. Civil rights measures that special interests or religious conservatives don’t like (e.g. drug reform, prison reform, gay marriage)
  3. Revenue measures — e.g. tax increases, new fees, or state bonds — that because of Prop 13 cannot be passed any other way

2010’s Proposition 20 was a good example of a good governance measure shamefully opposed by incumbent congresspeople of both parties. It called for fairer district lines, which meant more difficult reelection campaigns for incumbents. Happily, it passed anyway #throwthebumsout

Moral issues are the second major category. Prison unions and “law and order” conservatives support capital punishment and oppose sentencing reform. “Family values” conservatives oppose drug reform and gay rights. State legislators find it difficult to cross these groups so injustice goes unaddressed without ballot propositions.

An underappreciated and especially egregious clause of Prop 13 required that any new tax required a 2/3 supermajority in the state legislature to be approved. In practice this means no new tax revenue can get approved; given that the state already has a budget shortfall because long-time home owners pay so little in property taxes, and this means that the only way for counties and cities to increase their revenue is via ballot prop.

Many left-leaning people don’t agree with this, but I tend to vote no on tax, fee, and bond measures, for two reasons: first, they are always very specific, and thus violate the 38 year test. More importantly, the root problem of the state needing more revenue is Prop 13. I already pay 5x more in property taxes than my far wealthier neighbors (and their future heirs ). All new taxes, particularly per-property parcel taxes, are regressive and further entrench the structural unfairness of Prop 13. So I vote no.

Okay, got it. So what about 2016?

[Update: I am humbled by the responses to this piece, and in large part because of them I changed my position on two props. I voted yes on 67, and no on 64].

This year, I am voting yes on Props 62 and 67. There are 11 clear nos and 4 close calls, one of which (63) I may vote for but I haven’t decided. [Update: I voted no on 63]

Yes

  • Prop 62 — abolishes the death penalty in California
  • Prop 67 — I hate this measure. It’s a referendum, not a ballot proposition. So a “yes” vote upholds an already-passed law banning plastic bags in grocery stores, while a “no” vote rejects and repeals it. In other words, a “yes” vote means no change, whereas a “no” vote overturns an existing law. This is crazy and wrong. However, it’s on the ballot. I considered abstaining out of principle, but ultimately I agree with the ban (on marine life, not climate change, grounds—as far as I can tell, the math on carbon emissions is unsettled between plastic and reusable bags). I have decided to vote yet

No, because “compelling interest”

  • Prop 52 — an arcane rule around the allocation of hospital fees. Seems reasonable but it’s impossible to understand and therefore inappropriate for a ballot measure
  • Prop 56 — a tax of $2.00 per pack on cigarettes. Sounds good in theory, but I struggle with the regressive natures of tobacco taxes (mostly poor people smoke in California)
  • Prop 60 — requires the use of condoms for porn actors. Fails on compelling interest, but also appears to be an egregiously poorly written law
  • Prop 65 — allocates plastic bag revenue to a specific environmental fund

No, because “38 years”

  • Prop 51 — a $9 billion schools bond. Allocates the funds too specifically, puts the state further in debt to address a problem caused by Prop 13. FWIW Gov. Jerry Brown opposes
  • Prop 53 — requires voter approval for new public infrastructure bonds >$2B. In general, requiring more voter approval for anything is bad. This simply makes it harder for the legislature to do things. Gridlock seems to be the goal
  • Prop 55 — a tax increase on the wealthy to fund schools, for 12 years. Sounds good in theory, but not via ballot prop. And schools only lack money because of Prop 13.
  • Prop 59 — calls for the legislature to “use its authority” to “propose” a constitutional amendment overturning Citizen’s United. I’m all for that outcome, but this prop doesn’t actually do anything. Political grandstanding at its worst
  • Prop 61 — prohibits the state from paying more than the VA for drugs. Sounds good, but there are countless ways it could go awry — what if a drug company doesn’t agree to the price? Does the state not buy that drug? What if a drug company creates California-specific versions?
  • Prop 64 — legalizes marijuana in California. I strongly support legalization and planned to vote “yes” but this is a 60-page measure that establishes a byzantine, far-reaching regulatory regime that strikes me as deeply inappropriate for ballot proposition. Marijuana is already effectively decriminalized in California, and this proposition does nothing to address the injustice of people already in prison for marijuana-related offenses. I wish we could legalize marijuana the right way, but this isn’t it. I’m voting no
  • Prop 66 — affirms the death penalty (I just disagree with this)

Close calls

  • Prop 54 — requires all bills to be posted online for 72 hours before the legislature votes. It’s designed to increase transparency and discourage closed-door deals, which sounds good. But there seem to be a lot of possible holes — for instance, it seems that if comma gets changed, the clock restarts. So I’m following my rule: when in doubt, vote no
  • Prop 57 — makes it easier for certain non-violent offenders to get parole. I believe we incarcerate far too many people in this county, and I strongly support prison and sentencing reform. However, this measure feels complicated and overly specific, and it doesn’t actually define “non-violent”. Too many questions, so I’m voting no
  • Prop 58 — this one is tough. It repeals 1998 Prop 227, which was an egregious measure restricting the use of non-English languages in public schools. However, it doesn’t just repeal that law, it introduces lots of new and different requirements. I’m inclined to vote no
  • Prop 63 — a broad gun control measure that regulates ammunition, imposes harsher penalties for gun theft, and a few other things. I think it’s pretty innovative. I’m inclined to vote yes but I haven’t decided. [Update: I voted no on 63 because I felt it was too complex, much of it is already law, and requiring a permit for *any* ammunition purchase feels like overkill to me. FWIW, my wife voted yes]

If you’re still reading, thank you. All comments and disagreements welcome!

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