How Rules Can Impact Laws

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Joey Sciarra

Sometimes, the rules for lawmaking can be as or more important than the laws they enable.

Take SB 1039, a bill that has worked its way through the legislature to create a new process for which statewide propositions appear on the ballot. Although Brown and his Democratic colleagues won't publicly admit it, this legislative change may well give Brown and his temporary tax increases proposal an advantage in November that he otherwise would not have.

Confused? Hold on, this isn't nearly as wonkish as it seems.

Until now, proposals have been assigned their place on the ballot as a result of the order in which they have qualified after gathering the necessary number of signatures. SB 1039 would change that order by placing constitutional amendments at the top of the proposals, with statutes ordered below.

The official idea behind the new law is that constitutional amendments carry more weight than statutes because of their permanence in state law -- until they're "permanently" changed by another amendment, of course.

So what difference does that make? Maybe more than what meets the eye.

Governor Jerry Brown's ballot proposal to temporarily increase sales taxes and income taxes for the wealthy has been drafted as a constitutional amendment. Even though the tax increases have fixed times for expiration, the Brown proposal contains some minor permanent changes, thus the listing as a constitutional amendment.

Brown's proposal will be on the same ballot with two other tax-related proposals, one to increase all income taxes and another to increase corporate taxes. The folks associated with the Brown proposal would just as soon see it appear separately from its competitors, lest it be lost among all others.

Without the change, the Brown proposal would be listed ninth among the 11 proposals. 

Some people upon reading this might just shake their heads and go on to the sports pages, or some other news much more meaningful than what appears to be parliamentary drivel. But there may be something to the change.

Political scientists who love minutiae have long known that the order of names in an election can have an impact on the outcome.

Known as the "ballot order affect," studies show that the first name in a list of candidates tends to attract about two percent more votes than it would were it placed elsewhere. That's why many states rotate name orders.

Which takes us back to SB 1039. By placing Brown's proposal at the top of the ballot, will it gain a slight edge over the others? It's unknown whether voters will react to proposed laws the way they react to candidate names. But if the Brown constitutional amendment passes by two percent or less, the sponsors in Sacramento may have an extra large smile on their faces November 7th.

Larry Gerston teaches political science at San Jose State University and is the political analyst for NBC Bay Area.

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