Does the typical California voter have the expertise to wade through hundreds of pages of ballot measure text and summary, replete with complicated details about state budget procedures and tax policy? Can voters remember, less than a week after the election, what Proposition 39 was supposed to do? Can they be expected to look up a dozen penal code sections in order to fully grasp the consequences of Proposition 35's Section 6(b)?
California's initiative process, which recently celebrated its 101st anniversary (and which just last week put 11 extremely complex policy questions before voters), rests on the premise that the people are sovereign and may overrule their elected representatives. The process asks a lot of voters. Does it ask more than other responsibilities of citizenship?
In the jury box, citizens are asked to sift through testimony, exhibits and arguments tossed at them by competing sides, often on issues well beyond their everyday expertise: What does the DNA evidence show? Did the defendant act like a reasonable person? How should we interpret the disclaimer? We trust that jurors rise to the occasion even when a defendant's life is on the line. Surely we should trust that voters do as well in the initiative process.
During election season, though, there is reason for pause. The jury process provides two safeguards that the initiative system lacks. First, in court, rules of evidence and a judge help restrict the mass of fact and argument that comes before the jury. If one lawyer tells an outright lie, another is there to refute it. Jurors are required to be present to hear the arguments so they can make up their own minds with complete information and a minimum of distractions. Voters, by contrast, are on their own and often rely on TV ads and slate mailers outside the context of a mediated debate.
Second, the jury gets a period away from the noise to deliberate: to discuss, compare, ask, answer and think. In the frenzy of a campaign there is no quiet time and precious little opportunity to separate intellect from emotion.
So what do we do? The best we can. Without the moderating influence of the courtroom, and absent much-needed reform of the initiative process, the citizen voter has to listen, read, talk, think and rethink. And sometimes make sound decisions, and sometimes mistakes, and start all over again when the next statewide election comes, two years later.