This public domain photo is of middle-schoolers (and hopefully a teacher). Amendment 85 would require ballot titles to be written at no more than 8th-grade reading levels, even if they’re about complex topics.

At its simplest, Amendment 85 (formerly known as Initiative 234) has two main purposes. First, it would amend the Colorado Constitution by adding a statement saying all ballot questions should be written at an 8th grade reading level. Second, it would prohibit the state from mandating language for ballot measures that would be at above the 8th grade reading level.

This is a proposed Constitutional amendment, so it will require at least 55% of the vote to pass.

The actual initiative is short enough to include the language in full here:

SECTION 1. In Colorado Constitution Article V, Section 1, add (5.6) as follows:
(5.6) BALLOT QUESTIONS SHALL BE IN PLAIN LANGUAGE AT NO MORE THAN AN EIGHTH-GRADE READING LEVEL. NO STATUTE MAY INTERFERE WITH THIS PROVISION BY MANDATING LANGUAGE PRECEDING, FOLLOWING, OR IN A BALLOT TITLE OF AN INITIATIVE.

Why 8th Grade Level?

Some voters don’t read ballot measures until it’s time to vote. People who only read the “ballot title” on the ballot and nothing else might find the language to be confusing, sometimes even if they have the capacity to read at higher levels. Ballot titles are typically written to capture the legal purpose(s) of the ballot measure – not to explain human impacts or add context, or to help people understand how it might work in practice.

Voters do have options available to them to help them understand ballot measures. The State of Colorado sends a “Blue Book” to all registered voters, while voters on local issues in cities or counties might get a TABOR notice pamphlet. Media outlets and (ahem) election guides also typically cover some or all ballot issues. But the fact remains that some voters don’t do any of this, and might not understand what they’re voting on if they just read the ballot title.

While there are many, many sources of information about reading levels and comprehension, a few points from Michigan Tech University might illustrate the issue quickly:

The ballot measure language does not specifically require any one digital platform or other system to analyze whether a measure is at 8th grade level or not. There are many digital systems available that can very quickly do an analysis. (Editor’s note: I experimented with the “Hemingway” platform to test a few sections of language for this post, but I’m not saying it’s better or worse than any others.)

Why Oppose Mandated Language in Initiatives?

Over time, there have been several measures in Colorado that mandated language to be included with ballot measures. For example, the 1992 Taxpayer’s Bill of Rights (TABOR) requires all tax or debt-related ballot measures to include the following language at the beginning of a title as appropriate: “SHALL (DISTRICT) TAXES BE INCREASED (first, or if phased in, final, full fiscal year dollar increase) ANNUALLY…?” or “SHALL (DISTRICT) DEBT BE INCREASED (principal amount), WITH A REPAYMENT COST OF (maximum total district cost), …?”

Just for example, a ballot measure under TABOR might begin with “SHALL CITY DEBT BE INCREASED $400 MILLION, WITH A REPAYMENT COST OF $650 MILLION…” (Editor’s note: I ran this through the Hemingway readability program, and it said this intro I prepared as an example is at the 7th grade level.)

TABOR critics or skeptics have long noted that this mandatory language only mentions the quantity of tax or debt increases, and not any other dimensions like the anticipated practical effects of revenue changes. Therefore, it might emphasize the amount of spending or borrowing above all other factors. Since TABOR, voters passed Proposition GG to require a tax bracket table be added to any ballot question that changes state income taxes, while the state law passed under House Bill 21-1321 requires language be placed in a ballot title for measures that increase or reduce taxes to show how those changes will impact state and local budgets.

To parse the wording of the second sentence of Amendment 85, it seems as if it’s meant to disallow mandated initiative language if it’s above 8th grade reading level. The Colorado Blue Book interprets the sentence as meaning passing Amendment 85 would prohibit laws “that may interfere with the plain language requirement.”

However, this writer has some concern that this second sentence of Amendment 85 might have retroactive effect. By saying “no statute shall interfere,” it’s not specifically saying “no NEW statute.” Bills that have passed in the past become statutes. If for some reason the plain wording of this second sentence means existing statutes that require specific ballot language might be OK if the language is at 8th-grade reading level or below, it might mean some existing statutes might be fine while others might not be. (Editor’s note – I contacted the state Legislative Council to ask whether it might be retroactive, and they were unable to answer the question.)

Are There Laws Now?

There were laws in place regarding ballot title clarity before this year, but none mandating a specific grade level of readability. Language in CRS 1-40-106 currently says the state Title Board must consider whether ballot titles might be confusing, and especially must consider whether the title might be confusing as to what a “yes” or “no” vote would actually do.

This year, the state legislature passed HB 26-1320, which says titles must be written using “accessible language” which will be understood by the “widest possible audience.” This bill also allows the Title Board to consider whether the title could use alternatives to technical or specialized terminology, and whether the title could avoid complex phrasing, including double negatives or unnecessary qualifiers.

Amendment 85 Pro:

  • Ballot measure titles should be understandable to as many voters as possible, and keeping the language at an 8th-grade level means most people could understand the measure.

Amendment 85 Con:

  • Passing 85 could disallow some types of information that show voters the possible impact of what they’re voting on. Voters might instead get one-sided information.
  • Ballot initiatives create laws, which might be complex. It might not be in peoples’ best interest to keep information that might be above 8th-grade level off of ballot titles.

Links for More Information:

Proponents

  • A Brighter Colorado is supporting Amendment 85, while it also supports Amendments 81, 82, and 86 plus Propositions 132 and 136, and it opposes NN and 87. As of Oct. 6, it had reported total contributions of $2,612,150.00, including a non-itemized report from Oct. 6 of $2,305,525.00, $250,000 from McLean, Virginia-based Common Sense America, and $100,000 from Colorado Dawn.

Opponents

  • Vote Common Sense is opposing Amendment 85, while it also opposes Amendments 81, 82, and 84, and Propositions 132, 133, 134, 135, and 136. It has reported $646,500 in total contributions as of Oct. 6, including $200,000 from Washington, DC-based Green Advocacy Project, $100,000 from Merle Chambers of Denver, $65,0000 from Colorado Fund for Children & Public Education, $50,000 from Coloradans for Real Safety Solutions, $50,000 from Colorado Immigration Rights Coalition, $50,000 from Colorado WINS, and $35,000 from COBALT.

Richard’s Take

I will vote NO on this measure very largely because I don’t think this ought to be in the Constitution, plus I’m not convinced that the 8th grade readability metric is the only way to make sure people understand ballot measures. And just for laughs, I ran the actual ballot title for Initiative 234 through the Hemingway readability platform, and it came back as being at an 11th grade readability level.

I did appreciate learning that large percentages of general audiences understand information at the 8th-grade reading level. But with ballot initiatives, we are making law. There are things that might need to go into a ballot question that might not be easy to accurately force down to any given readability level. We should definitely not leave essential detail out of ballot questions, since people who do nothing but read the ballot question should have the opportunity to see at least the parts that really matter. And sorry, they might be moderately complex at times.

I’m also somewhat concerned that the second sentence in Initiative 234, about disallowing adding mandatory language to initiatives, might not only be about readability, since the initiative is sponsored by a conservative organization while some of the existing mandatory language was passed or proposed by liberals. I get to have trust issues while writing opinions. The liberal Bell Policy Center said “it will actually make voters less informed by stripping out important provisions that alert voters to the impacts of tax changes on their pocketbooks and state and local budgets.” Whether Bell’s right or not, this statement captures some of my concern.

Going back decades, language under TABOR only required voters to be told about how much debt or taxes might increase, but not what the new revenue might get them or what tax cuts might cost them. In my book, this is vitally important information in any type of economic decision making, especially since people might willingly spend more if they believe they’re going to get something better – or they might not want to cut spending if they’re going to lose something important. In any case, voters should have the opportunity to know these things, and I’m concerned that Amendment 85 might keep some of this essential information off the ballot.

By the way, the Hemingway readability platform put the second sentence of Amendment 85 at 13th-grade level, and actually said it was “hard to read.”

As it stands today, I feel that we have some good processes in place to ensure wide readability, even if maybe some small percentage of people still might not fully understand them. Between Title Board deliberations, HB 26-1320, and state law that existed before HB 26-1320, there’s a good framework in place, and of course we should continue trying to make things better. But I’m not at all convinced we need to put Amendment 85 into the Constitution, so I’m urging a “no” vote.