dissenting.
I dissent to Division 1 of the opinion.
1. The ballot language reads:
Shall the Constitution be amended to provide that the General Assembly may authorize lawsuits against the state and its departments, agencies, officers, and employees and to provide how public officers and employees may and may not be held liable in court?
2. This language is affirmatively misleading. It is misleading because our constitution already has authorized “lawsuits against the state and its departments . . .” through the state’s action in creating an insurance fund. Art. I, Sec. II, Par. IX of the Constitution of Geor*57gia of 1983;3 Martin v. Dept. of Public Safety, 257 Ga. 300 (357 SE2d 569) (1987); Price v. Dept. of Transp., 257 Ga. 535 (361 SE2d 146) (1987).
3. (a) The 1990 amendment sought to change Art. I, Sec. II, Par. IX by vitiating the existing law (i.e., sovereign immunity is waived by the establishment of insurance coverage), and by providing that sovereign immunity would be waived only by the General Assembly’s enactment of a state tort claim act; or possibly by other legislation that “specifically provides that sovereign immunity is thereby waived and the extent of such waiver.”4
(b) A ratification of the 1990 amendment will accomplish exactly the opposite of what the ballot language clearly suggests.5
4. (a) Mere ambiguity in ballot language — or imprecision or omission — should not invalidate ratification. Rather, invalidity should follow only from an affirmative misstatement by the ballot language of the effect of the proposed amendment.
(b) It is difficult to imagine a plainer case of affirmative misstate*58ment than this case. Consider:
Decided March 17, 1992. Rand & Ezor, Samuel S. Olens, Richard Kopelman, Trunnell & Associates, John W. Trunnell, Jr., for appellants. Michael J. Bowers, Attorney General, Charles M. Richards, Senior Assistant Attorney General, Eric A. Brewton, Assistant Attorney General, for appellees. Tony Center, William S. Stone, Craig T. Jones, James D. Hollingsworth, William O. Carter, amici curiae.(i) The voters were asked whether they wanted the right to sue the state.
(ii) The voters answered “yes.”
(iii) Because they answered “yes,” their existing rights to sue the state have been terminated!
I am authorized to state that Justice Benham joins in this dissent.
(a) Sovereign immunity extends to the state and all its departments and agencies. . . . Also the defense of sovereign immunity is waived as to those actions for the recovery of damages for any claim against the state or any of its departments and agencies for which liability insurance protection for such claims has been provided but only to the extent of any liability insurance provided. Moreover, the sovereign immunity of the state or any of its departments and agencies may hereafter be waived further by Act of the General Assembly which specifically provides that sovereign immunity is hereby waived and the extent of the waiver. . . .
(b) The General Assembly may provide by law for the processing and disposition of claims against the state which do not exceed such maximum amount as provided therein. [Id.]
The pertinent language of the proposed amendment is:
(a) The General Assembly may waive the state’s sovereign immunity from suit by enacting a State Tort Claims Act, in which the General Assembly may provide by law for procedures for the making, handling, and disposition of actions or claims against the state and its departments, agencies, officers, and employees, upon such terms and subject to such conditions and limitations as the General Assembly may provide. . . .
(e) Except as specifically provided in this Paragraph, sovereign immunity extends to the state and all of its departments and agencies. The sovereign immunity of the state and its departments and agencies can only be waived by an Act of the General Assembly which specifically provides that sovereign immunity is thereby waived and the extent of such waiver.
What the General Assembly did in drafting ballot language so contrary to the effect of the proposed amendment evokes remembrance of the opera Iolanthe, and of the Lord Chancellor’s advice to the Queen:
Queen: You have all incurred death; but I can’t slaughter the whole company! And yet (unfolding a scroll) the law is clear — every fairy must die who marries a mortal! Lord Chancellor: Allow me, as an old Equity draftsman, to make a suggestion. The subtleties of the legal mind are equal to the emergency. The thing is really quite simple — the insertion of a single word will do. Let it stand that every fairy shall die who doesn’t marry a mortal, and there you are, out of your difficulty at once. [The Complete Plays of Gilbert and Sullivan, New York: The Modern Library (n.d.), 286.]