Confused about the 3 referendum questions on the April 4 ballot?

The Wisconsin Dept of Justice (DOJ) filed its response brief yesterday to a constitutional challenge to Wisconsin’s same-sex marriage ban approved in a 2006 statewide referendum composed of two questions being considered by the Wisconsin Supreme Court in a legal challenge posed by civil rights advocates.

The case, William C. McConkey v. J. B. Van Hollen, challenges the anti-gay marriage referendum on several constitutional grounds, arguing that the state’s resulting constitutional amendment should be overturned.

Constitutional Amendment Referendum

The language of the 2006 referendum reads:

Shall section 13 of article XIII of the constitution be created to provide that only a marriage between one man and one woman shall be valid or recognized as a marriage in this state and that a legal status identical or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized in this state? [Emphasis added]

Single Purpose

One of the issues addressed in the case is the constitutionality of the referendum formulation that poses more than one proposition in a single ballot question that confuses Wisconsin voters.

The related question of how to determine whether such compound-question referenda serve the same general purpose and comprise the same subject matter in accordance with some case law, will also be considered by the Court.

The DOJ argues that the "general purpose of the amendment was to preserve and protect the unique and historical status of traditional marriage as a union between one man and one woman,” echoing the ruling of Dane County Circuit Judge Richard Niess, who upheld the amendment last year, saying in part that the two propositions in the referendum are “two sides of the same coin.”

So how does the Court go about determining if two propositions serve the same general purpose?

McConkey argues and the Court of Appeals April 2009 decision agrees vis a vis Judge Niess, that the “proper legal standard and methodology” for determining a general purpose is unclear from existing case law.

The DOJ brief argues that existing case law accords deference to the legislature’s formulation of referendum questions on proposed constitutional amendments.

Both the DOJ and McConkey briefs suggest judicial standards of ascertaining legislative intent of referendum questions.

Single Subject

The compound formulation of a question promotes ambiguity rendering the electorate’s ballot preference unknown because voters are only able to get to cast one yes or no to the two different questions in clear violation of the " ? Article XII, section 1 of the Wisconsin Constitution.

The DOJ does not see it that way.

Reads the DOJ brief:

The two parts of the ballot question presented to voters in November 2006 related to and furthered the general purpose of the amendment: to preserve and protect the unique and historical status of traditional marriage as a union of one man and one woman. McConkey’s strained effort to conceptually dissociate the two propositions should be rejected.

One wonders how the same general purpose of two parts of the ballot question can be served[voted upon] and ascertained, when a voter might easily be in favor of the first question but not the second question of the referendum.

The strained effort in this matter is imputing a unitary coherence onto the religious right's compound formulation. Whatever the GOP and the religious right were thinking, they did not communicate their propositions clearly to Wisconsin voters.

See also:

- Objection, Compound Referendum
- Brief Looks to Doom Wisconsin Gay Marriage Ban

Yes, Madison and Milwaukee had a bumber crop of voters in the recall, however, that enthusiasm among moderates and liberals was pretty much limited to those two areas.  Outside of Milwaukee and Madison, conservatives were even more energized than they were in 2010 and liberals and moderates were just as shrug-prone as they were in 2010, if not more in many areas.

To show just how bad things have gotten for Dems in 2010 and the recall, consider the chart below.  Up until 2010, Moderates typically weighed-in somewhere close to 50%, conservaties somewhere close to 30% and liberals in the low 20s.  Then 2010 hit and Dems saw the worst turn-out patterns since 1994.  Everyone assumed (including me) that there was no way we could have another year like 2010.

Boy were we wrong.

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