By Daniel Victor, New York Times

Surely, even in these fractured times, just about everyone could agree on an anti-slavery measure (pdf).

Right?

Lawmakers in Colorado unanimously agreed to put a question onto the Nov. 8 ballot, asking if voters would like to remove an archaic reference to slavery in the state’s constitution that allows it as a punishment for crime.

There was virtually no public opposition or campaign against the amendment, which was supported by Republicans and Democrats. Newspapers editorialized in favor, and activists considered it a slam dunk.

What could go wrong?

As it turns out, plenty.

As of Thursday afternoon, votes were still being counted — but the effort looked as if it was doomed to defeat, with the “no” votes leading the “yes” votes by more than 35,000 with almost 2.4 million votes cast. A recount is possible.

Was it a hidden racist vote? Could more than 1 million people in Colorado really be in favor of keeping a slavery loophole?

Activists and lawmakers bewildered by the defeat say the answer may be much more simple: Voters say they were disoriented by a mouthful of a ballot question, leaving them unsure what “yes” and “no” actually meant.

The tongue-tying question read: “Shall there be an amendment to the Colorado Constitution concerning the removal of the exception to the prohibition of slavery and involuntary servitude when used as a punishment for persons duly convicted of a crime?”

“I think people were confused by the language,” said Rep. Joe Salazar, a Democrat who sponsored the bipartisan legislation to put the question on the ballot. “I don’t think this was a pushback at all by individuals saying they wanted slavery in the constitution. I just think the language was too confusing.”

The punishment exception was referring to prison labor when it was written in 1876, but constitutional law experts say it is now unnecessary because of current labor practices.

“Many people thought, ‘If I vote yes, I’m voting to put this language in the constitution,’ because it seemed inconceivable that it was already there,” said Melissa Hart, a professor at the University of Colorado Law School.

Even well-educated lawyers Hart spoke with were surprised to learn that not only was the language in the state’s constitution, but it also remains in the 13th Amendment of the U.S. Constitution, which abolished slavery when it was ratified in 1865. It states: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

The language goes back even further — to when the U.S. territory was expanding. Both the Northwest Ordinance in 1787 and the Missouri Compromise in 1820 prohibited slavery but carved out the same exception for criminal punishment.

At the time, labor camps in prisons were common as a way to rehabilitate criminals, Hart said. Since the prisoners were working without payment, it was considered a form of indentured servitude.

But in the current day, the idea that there could be any situations in which slavery would be allowed did not sit well with activists.

“It just shouldn’t be a Colorado value,” said William Dickerson, a community activist with Together Colorado, a faith-based organization that led the campaign to remove the language. “It shouldn’t be in the bedrock of our founding document, both on the state level and on the national level.”

Activists said the effort might also have been hurt by a state voter guide that was mailed to every registered voter, which was required to list arguments for and against the amendment. It said the change could “result in legal uncertainty around current offender work practices in the state.”

That was a “paper-tiger argument” that was concocted to meet the legal standard for having an argument against it, but few people were genuinely concerned, Salazar said. Nonetheless, some voters could have been persuaded by it, he said.

The voter guide also said that 25 states did not have language related to slavery in their constitutions, and that those states had had no issues with their prison work and community service programs. “Removing the language reflects fundamental values of freedom and equality, and makes an important symbolic statement,” it said.

Though stunned by the apparent defeat, those supporting the change are vowing to get the question on a ballot again — next time, with simpler language.

“We’re going to do it again,” Salazar said. “We’re going to make sure we finally rid the constitution of that language.”

To Learn More:

Amendment T: No Exception to Involuntary Servitude Prohibition (Ballot Measure, Colorado Legislature) (pdf)

Mississippi Finally Officially Ratifies Anti-Slavery Amendment (by Noel Brinkerhoff and David Wallechinsky, AllGov)