Ex-justices see big problems with California initiative process

Despite the 2014 adoption of the most significant reforms to the initiative process in recent California history, two former state Supreme Court justices have gone public with criticism over the dominant role of money in direct democracy, suggesting that the process should be made harder and citing concerns about voter overreach.

The biggest 2014 change approved by the Legislature at the behest of the Think Long for California government reform group requires the Legislature to be notified when a ballot measure gets at least one-quarter of necessary signatures. At that point, lawmakers can confer with measure sponsors about qualms they have with their proposals. They can also head off ballot fights by passing legislation addressing the issues cited in ballot measures.

This is what happened in 2016 with a proposed measure raising the state minimum wage was circulated. The Legislature instead produced its own version of the plan, which Gov. Jerry Brown signed.

The second most important change requires the Legislature to hold public hearings on initiatives which qualified for the ballot via signature-gathering. The hearings must be at least 131 days before the election, promoting closer scrutiny of such legislation.

Special interests, money play dominant roles

But in an interview with the San Francisco Chronicle, former state Chief Justice Ron George said much more needed to be done to improve the initiative process. George said the very groups that direct democracy was supposed to help keep in check – powerful special interests – “have managed to seize control of the initiative process and, in a way, perverted the whole function of it.”

“If you are willing to pay [signature gatherers enough] … I think you can qualify anything for the ballot,” he said. Those signature gathers in many cases “have no idea what the measure involves.”

George, who was chief justice from 1996 to 2011, also said the initiative process made it “far too easy” for the public to change laws – and the ballot measures they enact can only be changed, in most circumstances, by another ballot measure. Voters have approved more than 500 state measures since direct democracy began in 1911. To make the ballot, a citizen initiative must have signatures that total at least 5 percent of the votes cast for governor the previous gubernatorial election. For 2020, the threshold is just more than 623,000 votes. Twelve measures qualified for the November 2018 ballot. Six passed.

Majority uses votes to ‘impose will’ on a minority

In a recent speech in Berkeley, former state Supreme Court Justice Kathryn Mickle Werdegar, who served on the court from 1994 to 2017, raised additional concerns. She depicted voters as being eager to make sweeping changes in state laws in ever-broader areas and said initiatives are “empowering a majority to impose its will on a minority.” She also said voters didn’t appreciate that justices were expected to tweak ballot measures to ensure they stayed within constitutional boundaries and expressed frustration with the criticism she got in 1996 for a decision in which she concluded part of the state’s “three strikes” crime bill went too far in reducing judicial review.

One of the examples of a ballot measure that may go too far that was cited by the Chronicle was a proposed initiative to put a maximum of five years on alimony. In a telephone interview, Steve Clark – the Huntington Beach software engineer who is behind the proposal – said he was “unpleasantly shocked” at the idea his measure dealt with an issue that should be left to the Legislature. But he said that this view of alimony law reflected the “entitlement state” attitudes of many Californians.