There’s an old story about Reagan and Gorbachev in a footrace. Reagan wins. The next day, Pravda reports that “Gorbachev and Reagan in international leader footrace; Gorbachev comes in second; Reagan comes in next to last.”
You can be literally true but misleading. You can defraud through omission.
That’s what the Memphis City Council did when it drafted the three ballot measures on the November 6th ballot. It’s the subject of a pending lawsuit challenging the misleading referenda language. A quick look shows that they are fatally deceptive in a variety of ways.
Each of the three referenda seeks to undo election reforms which Memphis voters passed overwhelmingly in 2008 — but which haven’t yet been tried, thanks in part to official obstructionism by protectors of the status quo.
One is a two-term limit for city officials. The others involve Instant Runoff Voting (IRV), which lets voters rank their 1st, 2nd, and 3rd choices; if no one gets a majority, you use the rankings to determine a majority winner, without the hassle, expense, ridiculously low turnout, and minority vote suppression involved with holding a separate “runoff” election later. IRV has a proven track record of success over decades in a dozen other U.S. cities.
Term limits force incumbents to resign after serving a proscribed length of time, and IRV makes elections more competitive. City Council incumbents want to kill both measures to make it easier to stay in power. This is bad enough, but the tricky language they’ve employed makes it worse.
The first referendum asks voters if they’d like to adopt a three-term limit for city officials — without informing voters that they have already adopted a two-term limit. It’s written in such a way to make voters think that if they want term limits, they should vote Yes, when, in truth, those who favor term-limits would likely want to vote No and keep the shorter term limit in place.
The second referendum would repeal IRV and go back to the way things were before its adoption, which would mean separate runoff elections for some council districts. But the ordinance fails to inform voters that doing so would cost the taxpayers more than $100,000 per year. This is a problem because a state statute says that the city is supposed to include an accurate estimate of the fiscal impact of such a ballot measure.
Indeed, in 2008, when voters first overwhelmingly passed IRV, the city complied with the statute and informed voters on the ballot that adopting IRV would save taxpayers $250,000 per year. This year, rather than informing voters that repealing IRV would cost $250,000 per year (or something in that range), the ballot says it’s impossible to estimate. It was possible in 2008, but impossible in 2018?
The third referendum would kill IRV by providing for plurality elections in all council districts, outlawing runoffs of any kind, “instant” or otherwise. Using this system, a candidate in a crowded field could win with only 25 percent of the vote, even if he is the least-preferred candidate of the majority of a district’s voters. Music to an incumbent’s ears.
This referendum directly contradicts the second referendum: Either we are using runoffs or we aren’t. It is fatally confusing.
We pointed out wording problems with the referenda as far back as last December, and we have been pointing out the fiscal-note problem repeatedly. Yet no corrective action was taken. It’s hard to escape the conclusion that the fix is in, that our leaders are either indifferent to — or hoping for — the voter confusion their language will cause.
Voters already complain that such ballot questions are worded in incomprehensible legalese. This is true and unnecessary: Neutral “plain language” explanations are required in other jurisdictions. These three referenda are even worse than normal.
What can you do about it? Vote No on all three, for one thing. Support “Save IRV,” for another, so we can get the word out. You can find out more at saveirvmemphis.com, as well as donate, volunteer, and get a yard sign.
There are sound policy reasons for voting No on all three referenda, starting with the simple observation that the people voted for term limits and IRV 10 years ago and neither has been implemented yet. But the misleading text is yet another reason. Supporting these referenda is rewarding bad behavior by the Memphis City Council.
Don’t let them get away with it.
Steve Mulroy is a law professor at the University of Memphis and a former Shelby County commissioner.