Attorney General’s First Test on Ballot Title and Summary

Joel Fox, editor and co-publisher of Fox and Hounds Daily, recently commented on Attorney General Xavier Beccera's performance in facing his first test of approving the title and summary of a controversial and highly watched ballot initiative when the gas tax repeal measure came before him. How did he fare, according to Fox?

Fox states that a major concern when a new California Attorney General takes office is how she or he will prepare titles and summaries for ballot initiatives. Fox advocats that a non-partisan official, such as the Legislative Analyst, take on the task of writing the title and summary, which has great impact on whether voters sign initiative petitions or choose to approve or reject ballot measures. However, the Attorney General, a clearly partisan position, currently fills the role.

The previous Attorney General, Kamala Harris, was accused of having her thumb on the scale, crafting a title and summary to favor a more liberal political ideology, especially noted in dealing with public pension reform measures.

A number of Republican observers say Becerra is following the Harris pattern. Particularly with this tax repeal measure, given that the gas tax was championed by Gov. Jerry Brown who is responsible for putting Becerra in the Attorney General’s chair.

The author of the gas tax repeal, Assemblyman Travis Allen, raised objections to the title and summary issued by Becerra and threatened to sue for changes.

Assemblyman Kevin Kiley, who authored a bill to give the Legislative Analyst the power to write titles and summaries on initiatives, said of the gas tax repeal measure,  "There is no question that the ballot title and summary are a cynical effort to mislead, misdirect, and misinform."

Pete Peterson, one time candidate for Secretary of State and current Dean of the Pepperdine Graduate School of Public Policy noted that if the measure qualifies, the Attorney General would have a second bite at writing a title and summary, and Peterson predicts Becerra will rip the measure even harder.

Words matter when it comes to explaining an initiative in a small, limited space—but so do politics.

The title of the initiative written by the Attorney General is a dodge avoiding the blistering word "tax." The title reads: "Eliminates Recently Enacted Road Repair and Transportation Funding By Repealing Revenues Dedicated for Those Purposes." Feels like funding headed for the roads is being taken away but doesn’t indicate that the money comes from the new "tax."

However, in the body of the summary the AG makes up for the absent word "tax" by being quite specific that a 12-cent gas tax, 20-cent diesel tax, and vehicle fees up to $175 would be eliminated. All, well and good, although the summary did not mention that the taxes and fees are tied to inflation.

One Allen complaint is that the summary says the money is going for road repair and other transportation purposes. There is no guarantee of that, the assemblyman contends, and indeed, the legislature put up a separate measure to appear on the 2018 ballot to more or less guarantee that the money would be used for transportation purposes.

Still, there are features of the tax increase bill, such as bicycle and pedestrian projects and state park and agricultural programs outside of road repair that a reader of the title and summary would know nothing about.

The financial analysis as part of the summary says the money is "primarily" for state and local highways and roads and mass transit. I suppose "primarily" is supposed to cover bicycles and parks.

Allen also protests the sentence in the summary that the Independent Office of Audits and Investigations will be eliminated. That office was created by the bill in which the gas tax was increased and the office does not exist yet. Allen argues that when gathering signatures for the initiative the summary speaks of eliminating an office that is not there. From the Attorney General’s perspective, the argument is that if and when the measure is on the ballot in November 2018, the office will exist and that the initiative would cancel it.

I’ve been through a number of challenges of title and summary language before courts. Judges tend to give deference to the attorney general but some changes have occurred. We’ll see if a judge agrees with the assemblyman’s challenges and makes a few changes.

Of course, the perception of fairness of a title and summary often depends on your political point of view. But clarity for the voters understanding a measure and facts should prevail in writing titles and summaries. Including the direct fact that the initiative repeals a tax in the title would have been fairer and more accurate.