Editorial: No to flipping script on ballot referendums. Or do we mean yes?

State Sen. Bob Hertzberg (D-Van Nuys) was understandably dismayed when voters in November rejected Proposition 25, which would have ended money bail in California.

We were disappointed too. Money bail is a corrupt and unjust arrangement whose end had finally come — or so we thought — when Hertzberg’s Senate Bill 10 passed in 2018. But then the bail bond industry subjected the bill to a referendum, a direct democracy tool intended to be used by citizens but increasingly employed by industries and business hoping to protect their profit margins from regulation, resulting in Proposition 25.

We will never know why voters sided with the bail bond industry. Were they swayed by the assertions of the repeal campaign, which benefited from the support of some progressive reformers who worried that the replacement system would be worse? Were they so exhausted from filling out a long ballot that when they got to the referendum, they marked “no” out of spite? Were they confused by the way the referendum was worded, asking for a “yes” to support the new law, or a “no” to reject it?

Who knows? But Hertzberg seems to think that the last two are at least possible and is now seeking a change in election law that would put referendums on the ballot in the order in which they are qualified (they are currently relegated to the bottom of the ballot). It would also flip the format of the question on ballots so that voters would mark “yes” in order to reject a new law and “no” to support it.

Got that?

California’s direct democracy system is flawed in many ways, and any good-faith effort to make it work to empower people is welcome — provided it is supported by enough research and data to suggest it will improve the process. This proposal isn’t. There’s no solid evidence that a change would improve voter comprehension. There are no data showing that voters don’t understand what “yes” and “no” mean when it comes to referendum language, just a few anecdotes and a gut feeling based on a presumption that voters don’t know what they are doing. That’s a shaky foundation on which to base a change to a system that has been in place for 110 years.

Indeed, we’re not convinced there’s even a problem that needs to be fixed. Yes, voters made the wrong decision on Proposition 25, but they made the right ones on the two previous referendums, the plastic industry’s attempt to kill the plastic bag ban in 2016 and the attack on independent redistricting in 2011.

Also, the current format makes sense because it is thematically consistent. On all propositions, be they initiatives or referendums, a “yes” equals approval of a proposed law and a “no” rejects it. Indeed, it seems that upending this pattern would actually confuse voters more, which is perhaps why most states that allow citizens to repeal laws have the same format as California.

Nevertheless Hertzberg says that it’s easier to get a “no” vote than a “yes” vote. If that’s true (and Gov. Gavin Newsom is surely hoping it will be in the Sept. 14 recall election), then flipping the script would only shift the unfair advantage from repealers to lawmakers. That is not an improvement, just a shuffling of winners and losers. If the plan was to level the playing field, wouldn’t it make more sense to adopt plain referendum language similar to that used by Nebraska, which asks voters if they want to “retain” a law or “repeal” it?

We can’t help but be wary of proposed changes to the direct democracy process that benefit the legislators who are so often at odds with it. Voters have tremendous power to check lawmakers’ authority by enacting new laws, repealing old ones and removing elected officials from office before their terms are up for any reason.

Rash changes can have unintended consequences as well. A few years ago Democrats hastily, and apparently without seriously considering the ramifications, extended the certification period of recalls to ridiculous lengths, hoping to protect one of their own against a Republican-led challenge. They scaled it back this year when it became clear that a drawn-out recall process wasn’t in Newsom’s interest.

In any case, this ballot language flip is by no means certain. Because it would change the state Constitution, it would still have to go before voters. We hope they won’t be too tired or confused to know that they’d be voting “yes” to make “yes” mean “no.”