The Right Call by the Court

Supreme Court Objects to Bilingual Ballot Title; Justices Indentified Two Genuine Flaws

If you’re going to propose a constitutional amendment to state voters, the least you ought to do is write a ballot title that is straightforward,
accurate and clear. The authors of a proposal to limit bilingual education in Colorado failed the test, and now must wait two more years to take their case to the people.

Linda Chavez, who heads One Nation Indivisible, blames “politics,” not “good legal reasoning” for the fact that the state Supreme Court this week banned the bilingual measure from the ballot. Yet there is reason to dispute her analysis.

For one thing, the court’s vote was unanimous, meaning it included moderate and liberal justices alike, as well as the lone appointee of Gov. Bill Owens
(Ben Coates, whose judicial tendencies are unknown).

The other reason to doubt that politics played a role is that the court’s opinion is clearly correct on the basic facts: The ballot title, which is what voters see at the polls, was indeed badly worded in two spots.
Supporters of the measure can argue that the flaws weren’t serious enough to justify throwing it off the ballot, but they can’t deny the problems.

They can’t deny, for example, that the opening sentence of the ballot title describes the measure’s purpose in language that is equivalent to campaign rhetoric. The title asks whether the Colorado Constitution should require all children in public schools “to be taught English as rapidly and effectively as possible.”

Now, the universal answer to that question would be “yes,” among supporters and detractors of bilingual education alike. That’s a clue that the words amount to sloganeering. As the Supreme Court pointed out, “they mask the policy question regarding whether the most rapid and effective way to teach English to non-English speaking children is through an English immersion program. This question is a subject of great public debate.”

A ballot title should tell voters what the measure would do, not proselytize through words like “fair,” “reasonable” or “most effective.”

The other flaw in the ballot title was its failure to explain the purpose of a waiver available to kids eligible for English immersion programs. The court said the lack of explanation would mislead voters. We think it would merely have confused them. Still, why confuse them?

Both problems, of course, are easily remedied. Proponents merely need to remove a few offending words, add a phrase to meet the court’s other objection, and collect signatures for the 2002 ballot.

If there was one disturbing note in the ruling, it was a concurring opinion by Justice Alex Martinez, joined by Michael Bender, who strained mightily to argue that the amendment also violated the so-called single subject rule. If a majority on the court had agreed, it’s hard to see how the measure could ever have been reworked for the ballot.

Fortunately, a majority of justices refused to crush the initiative in that fashion. Opponents of bilingual education have been delayed, but like every other citizens’ group, they have a right to their day with voters.

If they’re persistent, they’ll still have it, too.

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