By Berwood Yost

The legal fight over the state's judicial retirement ballot question continues on as another court challenge gets underway. The plaintiffs claim the ballot wording offered by the Republican-controlled legislature is "manifestly deceptive" because, according to them, it does not provide enough information to voters. Are the plaintiffs right?

Legal arguments can't objectively settle this dispute, but there are objective, experimental tools that can tell us whether the ballot initiative is worded so that voters understand what they are being asked. Survey researchers commonly use a tool known as a "split-ballot experiment" to understand the effect that wording has on how people respond to a question.

A split-ballot experiment uses a random procedure to assign different forms of a question to survey participants. Properly designed, these experiments create groups of people who are identical in all ways except for the form of the question they receive. When differences appear in a split-ballot experiment, they are the result of the question's wording and not the result of who was asked the question.

Participants in the September Franklin & Marshall College Poll were randomly assigned to get one of three different question forms about the ballot initiative: the ballot initiative as it will appear on the ballot; the original ballot initiative that was scheduled to appear on the primary ballot; and a common language alternative that we created.

Here is the ballot initiative as it will appear on the November ballot:

"Shall the Pennsylvania Constitution be amended to require that justices, judges and justices of the peace be retired on the last day of the calendar year in which they attain the age of 75 years?"

Here is the ballot initiative wording as originally proposed for the May primary:

"Shall the Pennsylvania Constitution be amended to require that justices of the Supreme Court, judges and justices of the peace (known as magisterial district judges) be retired on the last day of the calendar year in which they attain the age of 75 years, instead of the current requirement that they be retired on the last day of the calendar year in which they attain the age of 70?"

And here is our common language alternative:

"The Pennsylvania Constitution currently requires that justices of the Supreme Court, judges, and magisterial district judges retire on the last day of the calendar year they turn 70 years of age. Should the state Constitution be amended to allow these judges to serve in office until they are 75 years of age?"

This experiment shows that each form of the question generates a different response. Nearly two in three (64 percent) registered voters in the state say they will vote "yes" to the question as it will appear on the November ballot; less than half (45 percent) say they will vote "yes" to the question as it would have appeared on the May primary ballot; and fewer than two in five (39 percent) say they will vote "yes" when asked the common language alternative.

We would expect all three forms of the question to produce similar results if the ballot question is commonly interpreted and understood, but they do not.

The most likely reason that responses to the second and third question forms differ so much from the first form is because the current judicial retirement age is left out of the question. In this case, people who already know the current retirement age for judges will understand and answer the question differently from those who do not. When it comes to feelings about the retirement age for judges, that knowledge appears to make a huge difference.

This experiment can't tell us if the ballot question was written to intentionally mislead voters, but it does tell us that the form of the November ballot question is likely to produce a different result from what would have been produced if the primary ballot question had been offered last May.

Ballot initiatives should be among the most direct exercises in democracy we have. But for this exercise to work the ballot questions themselves should provide voters with the information they need to make an informed decision. The ballot initiative scheduled for November does not seem to meet that standard.

There are many reasons that our elected officials should want to get this right, mainly because it is their responsibility to do so. If Pennsylvania were like the 26 other states that provide citizens access to the ballot through an initiative or referendum process, then the proper design of those questions would largely be the responsibility of those offering the proposal. But that's not how we do it here.

Perhaps it is time to change that.

Berwood A. Yost is the chief methodologist for the Franklin & Marshall College Poll, director of the Center for Opinion Research, and director of the Floyd Institute for Public Policy Analysis. byost@fandm.edu