What are we really voting on?

Friday, Oct. 15, 2004 | 5:04 a.m.

WEEKEND EDITION: October 17, 2004

Voters who are confused by the meaning behind Nevada's ballot measures should take solace in the fact that they are not alone.

Even Betty Pardo, Las Vegas' League of Women Voters president, said she has had trouble comprehending the meaning behind some of the initiatives that will be on the Nov. 2 general election ballot.

"The initiative process can be healthy, but it can also be abused," Pardo said. "Sometimes they're so difficult to understand you don't know what a 'yes' vote or a 'no' vote may mean."

An example of a ballot measure that has people scratching their heads is Question 4, "The Insurance Rate Reduction and Reform Act," which is backed by trial lawyers.

The proposed amendment to the Nevada Constitution, which would also have to be approved in the November 2006 general election before taking effect, seeks to roll back automobile, homeowner and business casualty insurance rates, which explains the title of the initiative.

What the title doesn't tell the voter, though, is that the ballot measure also would eliminate caps on the damages an injured person could receive for pain and suffering in medical malpractice cases unless insurance companies lower malpractice insurance rates for doctors.

This initiative, then, is about two separate issues: insurance rate rollbacks and removing the caps on certain kinds of damage awards.

There are at least two major reasons why Nevada voters can expect to see other potentially confusing ballot measures in the future:

Nevada law does not restrict ballot measures to single issues and permits authors of initiatives to come up with their own titles.

Monied interests are using the initiative process to circumvent the legislative process to settle complex issues, employing many of the same marketing strategies used by candidates.

University of Florida political science professor Daniel Smith, who has extensively researched ballot measures, said some states that allow citizens to sponsor initiatives restrict those measures to single issues. Some states also have designated boards that draw up and approve the titles of initiatives so as not to make them ambiguous.

"Anything that can clarify the language for voters is a good thing," Smith said. "Otherwise it leads to problems, like in Nevada, where the language can be convoluted."

Colorado, for instance, has a title board composed of its secretary of state, attorney general and the director of its legislative legal services office. It approves all ballot titles and will not allow any initiative to go before voters that contains more than one subject. Also, Colorado initiatives cannot conflict with other measures on the same ballot.

None of that is the case in Nevada, according to the Legislative Counsel Bureau.

In Nevada, the secretary of state's office, with assistance from the attorney general's office and the Legislative Counsel Bureau, crafts explanations of each statewide ballot measure. Proponents and foes are encouraged to write their arguments on both sides of the issue. This information is available on the Internet at www.sos.state.nv.us/.

But Nevada initiative sponsors can choose any title they desire and are not restricted to a single subject.

Unlike Colorado, Nevada permits conflicting ballot measures. That is why Question 4 and companion Question 5, the "Stop Frivolous Lawsuits and Protect Your Legal Rights Act," which is also supported by trial lawyers, are allowed to co-exist on the ballot with Question 3, the "Keep Our Doctors in Nevada" initiative.

Question 3, proposed by doctors, seeks to change a 2002 state law that established a $350,000 cap on damages that an injured patient could collect for pain and suffering with exceptions for gross negligence and special circumstances as determined by the court. The doctors want to remove the exceptions to the cap and have it apply to each case rather than be multiplied by each plaintiff and defendant in the case.

Questions 4 and 5 are proposed constitutional amendments that have the potential to do the opposite by eliminating the caps.

"The titles of these initiatives are deliberately designed to seduce the voters," UNR political science professor Eric Herzik said. "Of course voters want their insurance rates rolled back, and they also want to save their doctors. But voters rarely read the fine print, which is why this is effective marketing."

Most states that allow ballot initiatives are west of the Mississippi River. The initiative-reform movement was part of the Progressive Era of the late 19th and early 20th centuries. The movement was led by citizens who were tired of the legislative domination that railroad and mining companies enjoyed in the West.

California-led tax revolts in the 1970s renewed interest in ballot initiatives as a form of direct democracy. But the sophistication of the process has rapidly advanced in the past 10 years, thanks in part to consulting firms that specialize in writing and marketing ballot measures. Marketing includes the use of focus groups to test the popularity of proposed measures before they land on the ballot.

That hasn't stopped many initiatives from being confusing to voters, according to Kim Alexander, president of the nonpartisan California Voter Foundation. The foundation, based in Davis, Calif., is an advocate of voter education via the Internet.

"The legislative process is deliberative, but initiatives are often written in a vacuum," Alexander said. "A lot of initiatives are just poorly drafted, but there is no requirement in California that you draft them well.

"Often times a special interest will try to get something done in the legislature and will use the initiative process as a hammer."

In Nevada, both doctors and lawyers came away disappointed from a special legislative session in 2002 that resulted in the $350,000 cap on damages for pain and suffering for medical malpractice per plaintiff and per defendant, with the gross-negligence and special-circumstances exceptions. Two years later, both sides have taken their fight to the voters in the form of Questions 3, 4 and 5.

The number of citizen-backed ballot initiatives declined in the United States from 93 in 1996 and 76 in 2000 to 57 this year, said Kristina Wilfore, executive director of Washington-based Ballot Initiative Strategy Center. Of Nevada's eight statewide measures, six are citizen-backed initiatives and two were referred by the Legislature.

"It's a myth that the initiative process is increasing and out of control," Wilfore said.

The left-leaning strategy center, which supports initiatives backed by teachers and organized labor, helped prepare the arguments in favor of Question 6, the "Raise the Minimum Wage for Working Nevadans" initiative.

This proposed constitutional amendment seeks to raise the minimum wage from $5.15 an hour to $6.15 an hour for workers without health insurance, but would allow employers to continue paying $5.15 an hour if they provide health insurance.

Wilfore said the potential confusion over the ballot issues backed by the lawyers and doctors could be because of the complexity of the medical malpractice issue.

"Whether the lawyers are being disingenuous to the voters, I don't know," she said. "On the flip side, doctors say they are fleeing the state and yet they're not."

Robert Stern of Los Angeles, co-author of successful California ballot initiatives that require lobbyists and candidates to make financial disclosures, said that because it is often complicated to amend a law, he doesn't believe that most ballot measures are "purposely convoluted."

Stern, president of the nonpartisan Center for Governmental Studies that researches self-government issues, also said studies show that people generally make the right decision when they vote "yes" on an issue. But he said there is no question that groups with deep pockets have come to rely on ballot initiatives to push their agendas.

"There are very wealthy special interest groups that find it easier to use the initiative process than to go to the legislature," Stern said. "The U.S. Supreme Court has also said that you cannot limit paid circulators of petitions and that has made it easier to qualify initiatives."

In essence, special interests have taken over the very initiative process that was started to combat them, Herzik said.

"The initiative process has been taken over by professional political marketing groups that are hired by special interest groups who don't get their way in the legislature," Herzik said. "It's a cottage industry, and Nevada is on the cutting edge of it."

One idea Wilfore said Nevada may want to consider for future elections is to require public forums, as Montana does, so that proponents and foes can explain ballot measures.

"We support better systems to let people know who is backing these initiatives," Wilfore said.

For now, Pardo said, the League of Women voters encourages people who want more information on Nevada's ballot measures to refer to the Easy Voter guide. The guide can be accessed via the Internet at www.easyvoter.org/nevada. Copies are also available at Smith's Food & Drug Centers and Albertsons supermarkets and at Nevada Department of Motor Vehicles offices, Pardo said.

"The secretary of state's office might want to take a look at the initiative process and demand that the wording of these initiatives be straightforward," Pardo said. "Until that happens, I think we will have to continue to come out with the Easy Voter guides."

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