CA’s history of direct democracy sometimes brings out ‘crackpots’

challengedThis week, lawmakers once again loudly proclaimed their outrage at a proposed ballot initiative that would allow voters to decide whether gay people should be shot.

The notion is both sickening and unconstitutional, but it’s also part of California’s political process dating back to 1911. The Golden State is one of 24 states that use the initiative process.

The issue arises as several other groups in the past month have submitted paperwork to the state Attorney General’s office to get the ball rolling on a wide range of ballot measures. After the paperwork is signed, supporters must collect 365,000 signatures to put their issue before voters.

There are currently 33 measures filed with the AG for the 2016 ballot.

The state’s largest service employees union, the SEIU, submitted a request to the state AG’s office in late April for a measure that would boost the minimum wage statewide to $15 an hour by the year 2021.

Another group seeks to curtail the state’s often-generous alimony law.

Then there’s the aforementioned “Sodomite Suppression Act.”

The latter effort has put the state’s system of proposition-as-change in the national spotlight. State Attorney General Kamala Harris is seeking more time to figure out how to refuse the measure without violating the rights of the gay-killing advocate, who lists his name as Matthew McLaughlin.

Most scholars say Harris can’t halt it; the law allows even something as unconstitutional as murder to be put to a vote.

Every election year, “a lot of people will come up with an initiative idea and throw it into the system, and you have a lot of crackpots,” said Kenneth Miller, associate professor of government at Claremont McKenna College, who developed the Miller-Rose Institute Initiative Database of all statewide initiatives approved by voters through 2014.

“Most of the things that succeed are done by interest groups, trade association, labor unions, business groups,” Miller said.  “Usually not individuals at large.”

Among states using the ballot to enact statewide policy change, California voterCalifRates copys are second only to Oregon in the number of measures approved, 121.

California voters have passed around 35 percent of measures since 1911, when the state approved the initiative process.

Many times these initiatives stem from a group or individuals who are sure that the state Assembly will never pass legislation to address their issue or grievance. Unless otherwise worded, propositions can only be undone by another voter-approved initiative or a legal challenge.

“Most states that use this approach to lawmaking were the western states, which at the time were a lot more politically fluid,” Miller said. “They were just starting to become states and didn’t have entrenched systems.”

Challenges to initiatives

A passed initiative doesn’t mean unchallenged, and California has by far the most challenges to voter decided propositions, with 78 percent being taken on post-passage, according to an analysis of data by

Since the ‘70s, around half of those challenges have been at least partially successful.

By far the most challenges have come to “Jessica’s Law,” approved with 71 percent of the 2006 vote. The law prohibited all sex offenders from living within 2,000 feet of schools and parks, with the goal of keeping them away from children. Nine legal objections have been made. It has so far survived, but one case led to a state Supreme Court ruling in March that it went too far and made it unconstitutionally difficult for convicts to find a place to live.

Its legacy continues to be cited; this session, eight bills cite the proposition in supporting various amendments to the law it created.

The second most frequently challenged proposition, from 1920, allowed non-citizens the right to own property. It was approved by 75 percent of voters. Of the five challenges, three failed, one succeeded in part and the other got rid of the measure’s effect altogether.

The most recent legal challenge to a proposition came regarding 2012’s Prop. 35, which passed with 81 percent of the vote, the highest margin ever for a state proposal. It provided for stringent penalties for human traffickers, though a camp in opposition contended that it peripherally targeted sex workers.

A federal court halted implementation of the measure, and last month the court prolonged the stay until September.

Legal foes, including the ACLU of Northern California, say they will seek a permanent injunction against the voter-approved law if legislation addressing the measure isn’t approved by September.

Prop. 213 in 1996 was approved by 77 percent of the voters and restricted lawsuits by uninsured motorists and drunk drivers. That measure was challenged twice in state court and upheld.

“Crackpots” not going anywhere

The “crackpots” pushing homicidal notions like sodomite suppression will probably be around for some time. Polls indicate California residents feel they are better at lawmaking than their elected officials.

Miller said that doesn’t seem to impede legislative efforts to alter or clarify the process.

Assembly Bill 535, introduced in February, seeks to create more specific language for initiatives. Assembly Bill 1457 would make a minor housekeeping change to a legal provision governing people collecting signatures for an initiative petition.

“You can imagine that state lawmakers would like to maintain a monopoly on lawmaking and not open it up to outsiders,” Miller said.

Added John Matsusaka, executive director of the Initiative and Referendum Institute and the University of Southern California: “Why some states allow the initiative and others do not, that is something of a mystery. Legislators usually dislike the initiative, so the puzzle is how so many states managed to adopt the process in the first place, given that it usually took a first action by the legislature.”

Steve Miller can be reached at 517-775-9952 and [email protected]. His website is

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