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November 6, 2016

Do we need to worry seriously about voter confusion in the states in which the future of the death penalty is on ballot?

The question in the title of this post is prompted by this recent article from Governing headlined "As Voters Decide Death Penalty's Fate, Ballots Confuse Some: This year's proposals aren't as simple as marking whether you're for or against capital punishment."  Here are excerpts:

The death penalty is legal in 30 states, but a growing number have repealed it in the last decade.  Depending on the election, California and Nebraska could be next.  While voters in those two states decide whether to do away with capital punishment, voters in Oklahoma — where botched executions have led to a temporary moratorium — could strengthen their state's ability to carry it out....

[But] like the issue of capital punishment, this year's ballot measures on the topic are complicated.

In Nebraska, the state legislature overrode their governor to repeal the death penalty in 2015, but the law never went into effect because opponents gathered enough signatures to put a referendum on the ballot.  If voters ultimately uphold the law, it would be the first state under GOP control to ban capital punishment since 1973.

But first, voters will have to figure out which side they stand on — something that could be difficult for many.  The ballot measure gives voters two options: "repeal" or "retain." People who choose "repeal," as confusing as it may be, won't be voting to repeal the death penalty — they'll be voting to repeal the legislature's repeal of the death penalty and thus keep the option of executions available.

Nebraska GOP Gov. Pete Ricketts is campaigning in favor of capital punishment and has contributed about $400,000 to the effort.  In his veto letter to state lawmakers last year, he said their vote on a death penalty ban “tests the true meaning of representative government.”  Though a bipartisan majority of legislators overrode his veto, Ricketts may be correct that the public is with him: An August poll found that about 58 percent of likely voters in Nebraska are in favor of the death penalty.

In California, the ballot features two conflicting propositions — one that would repeal the death penalty and another that would keep it.  If both measures earn a majority of votes, whichever gets more will go into effect.  Most polls suggest the pro-death penalty measure will pass.

And in Oklahoma, the legality of capital punishment isn't up for a vote. Instead, voters will decide whether to add a section to the constitution that affirms the state’s authority to carry out executions, regardless of which method is used.  After several botched executions, the state halted any future ones until further notice. Oklahoma's ballot measure would also exempt the death penalty — but not specific methods of execution — from being invalidated by courts as cruel and unusual punishment.  "It takes away the debate on whether or not we should have capital punishment," said state Rep. John Paul Jordan in an interview with The Oklahoman.  "It allows us to direct our attention as a Legislature towards how we implement it and how we do it in the most humane way possible.”

Critics of the Oklahoma ballot question say the constitutional amendment is unnecessary, undermines the authority of the courts and could invite expensive lawsuits.  Several civil rights experts have raised concerns that the measure would strip citizens of their constitutional protections against cruel and unusual punishment.  Nevertheless, a July poll found that more than 70 percent of likely voters supported the constitutional amendment.

Although polling in all three states suggest that a majority of voters support the death penalty, there's evidence that the framing of the question makes a major difference in how people respond. I n Oklahoma, when likely voters were asked if they supported the death penalty, three-quarters said yes.  But when given the option of eliminating the death penalty and replacing it with a life sentence without parole, along with other financial penalties, a slight majority favored a ban on the death penalty.

November 6, 2016 at 03:03 PM | Permalink

Comments

More on the general question:

http://www.acslaw.org/acsblog/elections-and-the-death-penalty

And, yes, it sounds like wording matters. At least, "won't be voting to repeal the death penalty — they'll be voting to repeal the legislature's repeal of the death penalty" sounds confusing.

I'm not a big fan of these measures. We have republican government for a reason and some one-off popular measure to decide the question is dubious.

Posted by: Joe | Nov 6, 2016 3:40:49 PM

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