If voters aren’t careful, they easily could become confused and vote the opposite of their desires on the death penalty ballot issue that Nebraskans are being asked to consider this fall.
The Nov. 8 ballot will ask voters to choose “retain” or “repeal,” wording that is required by state law.
That sounds simple enough. But voters who haven’t studied up might find themselves rubbing their eyes in the booth when they reach the referendum.
A vote to “retain” would get rid of Nebraska’s death penalty.
A vote to “repeal” would retain it.
If that sounds backward to you, you’re not alone. Douglas County Election Commissioner Brian Kruse has been getting questions about the ballot language as he speaks to civic, business and neighborhood groups about the upcoming election. People tell Kruse the language is confusing. It happened again last week when the topic came up as he talked to the Douglas County Board.
Asked by County Commissioner Mike Boyle to explain the ballot item, Kruse started hesitatingly describing it, with Boyle and Commissioner Chris Rodgers weighing in to help.
“Retain keeps it without the death penalty, repeal reinstates,” Kruse told the board.
“It’s pretty confusing, but that happens,” Boyle said.
“It is,” Kruse agreed.
Kruse, who was there to brief the board on preparations for Election Day, told members the same two things he told the Millard Business Association last week. One: Election commissioners don’t write the ballots, they just print them. Two: “The good thing is, there’s plenty of time to be an informed voter.”
In an interview, Kruse said, “It will be very important that voters do educate themselves in terms of what their opinion is, and then which way to vote to express their opinion,” Kruse said.
Or at least read the ballot language carefully. Merely scanning through it and then filling in the oval next to the word that seems to represent a voters’ opinion on the death penalty could lead to voting against their own views.
The “retain” and “repeal” wording has no nefarious intent. Rather, it is rooted in what the referendum is actually about, in statutory requirements for how ballot measures are worded, and in how we normally talk about the death penalty.
The referendum is about Legislative Bill 268. The Nebraska Legislature passed the bill in 2015, and overrode Gov. Pete Ricketts’ veto of it. The bill does away with capital punishment in Nebraska, replacing it with life in prison without parole for first-degree murder.
Death penalty supporters launched a petition drive to repeal LB 268. They collected enough signatures to put the question on this year’s general election ballot as a referendum. That placed enforcement of the bill on hold.
Voters are being asked to decide whether to ratify the Legislature’s repeal of capital punishment.
State law proscribes how such a question must be put to the voters. It says the Nebraska attorney general must write the question, or ballot title, and an unbiased statement that explains the effect of a vote either way.
“The ballot title shall be so worded that those in favor of retaining the measure shall vote Retain and those opposing the measure shall vote Repeal,” the relevant law says.
Asked to explain how they arrived at the ballot language, the Nebraska Attorney General’s Office staff responded with a written statement.
“Under Nebraska law, Neb. Rev. Stat. 32-1410(2), the attorney general is required to prepare a ballot title and explanatory statement for the referendum measure,” Chief Deputy Attorney General David Bydalek wrote. “The explanatory statement, which precedes the ballot title, is required to explain in clear and concise language the effect of a vote to retain and a vote to repeal the measure.
“In this case the measure refers to the passage of LB 268 by the Nebraska Legislature over the veto of the governor. Given this requirement, the attorney general used clear and concise language as required by this statute so that voters would know that a vote to Repeal will keep the death penalty and a vote to Retain will eliminate the death penalty.”
The language is a bit of a touchy subject. Death penalty opponents filed a lawsuit over the ballot language last fall against Attorney General Doug Peterson, a death penalty supporter. The suit claimed the language was misleading and unfair because Peterson included the word “maximum.”
The disputed language states: “The purpose of Legislative Bill 268 ... is to eliminate the death penalty and change the maximum penalty for the crime of murder in the first degree to life imprisonment.”
Death penalty foes argued that implies that those convicted of first-degree murder could be sentenced to less-than-life terms if voters retain the repeal.
Lancaster County Court Judge Lori Maret ruled that Peterson’s inclusion of the word “maximum” did not make the ballot language insufficient or unfair.
Aaron Duncan, an assistant professor in the Department of Communication Studies at the University of Nebraska-Lincoln, said the ballot language itself is clear, if carefully read.
But the way the words are associated in our brains and the mental frame through which we view the language of the death penalty debate makes it look backward.
“The national debate is typically ‘repeal the death penalty, repeal the death penalty,’ or ‘retain the death penalty, retain the death penalty,’ ” Duncan said. “If you read the wording closely, it’s clear. But if you just sort of think of the general frame of the way the debate has happened in our lifetime, then it feels like the sides are on the opposite sides.”
It would be simpler to say, “Support the death penalty, or ban the death penalty,” Duncan said. “That’s unfortunately not the way language on referendums works.”
People who haven’t been following the news might not know that the Legislature had passed a law banning the death penalty. If they skim the ballot for key words, they could misunderstand why it’s on the ballot.
“We really have to engage consciously, thoughtfully, and read every word,” Duncan said. “That’s not something that we do all that often. ... There will be voters on both sides who afterward find out that they voted the wrong way.”
Advocates campaigning on both sides of the issue said they recognize that voters could be confused by the ballot language and some may end up darkening the wrong ovals.
“I think most Nebraskans will be able to accurately vote the way they want to vote,” said Dan Parsons, spokesman for Retain a Just Nebraska, the ballot organization that opposes the death penalty. Possible confusion over ballot language factored into the group’s decision to change its name earlier this year from Nebraskans for Public Safety.
Meanwhile, Nebraskans for the Death Penalty recently launched a “Vote Repeal” campaign that includes a website and Internet video, said Bob Evnen, one of the group’s founders.
“We will be ramping up the public education campaign,” he said.
World-Herald staff writer Joe Duggan contributed to this report.