It’s November 6, 2018. You’ve waited in line at your polling site, you’ve received your ballot, and you’re now in the voting booth. You get to the bottom of the ballot and here’s the constitutional amendment ballot question that appears before you:
“[ ] FOR [ ] AGAINST Constitutional amendment to change the process for filling judicial vacancies that occur between judicial elections from a process in which the Governor has sole appointment power to a process in which the people of the State nominate individuals to fill vacancies by way of a commission comprised of appointees made by the judicial, executive, and legislative branches charged with making recommendations to the legislature as to which nominees are deemed qualified; then the legislature will recommend at least two nominees to the Governor via legislative action not subject to gubernatorial veto; and the Governor will appoint judges from among these nominees.”
Confused? You should be. Any good high school English teacher would refer to this ballot question as one big run-on sentence. Think about it: While you’re standing in the voting booth, the General Assembly has charged you to comprehend and then vote on a 101-word single sentence separated by two semi-colons. For all the jokes the Republican General Assembly makes about lawyers, this is the ultimate ballot question written by lawyers.
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A number of states require consumer- and voter-oriented bills to meet a minimum score on the Flesch Reading Ease Score. Rudolph Flesch, an Austrian who earned an English Ph.D, developed the formula in 1948 as a way to assess the reading ease of a text. The Flesch score ranges from 0 (very confusing) to 100 (very easy to understand). The Flesch formula is best applied to school texts, but state legislatures have extended the use to insurance policies. Our state, for example, requires that insurance policies meet a minimum Flesch score of 50 (fairly difficult) so consumers understand the insurance language. Oregon, for example, requires that constitutional ballot titles achieve a Flesch Score of not less than 60 (standard).
To put the Flesch Reading Ease Score in context, J.K. Rowling’s Harry Potter and the Sorcerer’s Stone scores a 80.6, Charles Darwin’s The Origins of Species scores 53, the average Harvard Law Review article scores a 34, and Immanuel Kant’s Critique of Judgment scores 18.4.
That brings us to the constitutional ballot question above. Better known as the Judicial Vacancy ballot question, the Flesch formula scores a -52.3. That’s right – a negative 52.3. According to the Flesch formula, such language is “impossible to comprehend.” The related Flesch-Kincaid Grade Level formula, a standard that corresponds to grade level required to understand such text, is 45.6. In other words, you’d need 45 years of formal education or multiple Ph.Ds to understand this constitutional ballot question.
The Republican General Assembly is asking voters to approve a ballot question that transfers powers from the governor to the General Assembly. Specifically, the ballot question would restrict the governor’s ability to appoint judges when a judicial vacancy occurs. Last week, Senate Democrats argued that such a ballot question is false and deceitful. To that argument, I would add that such a ballot question is utterly confusing and impossible to comprehend. Unless you have multiple Ph.Ds.