Ex-justices see big problems with California initiative process

The California Supreme Court in San Francisco.

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.

3 comments

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  1. Phil Hood
    Phil Hood 2 July, 2019, 22:27

    First, voters and students need education. The purpose of the initiative process were to help the people fight injustices particularly those related to concentrated power. It’s not to change alimony law or mandate educational practices. The whole system is out of control and, paradoxically, also perverted by big money.

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  2. Richard Rider
    Richard Rider 3 July, 2019, 01:05

    “California initiative process better than
    Sacramento sausage making”
    by Richard Rider

    Liberals in California vehemently dislike the state’s initiative process. Indeed, they recently tried to enact an effective ban on the process, but the bill was vetoed by Gov. Jerry Brown.

    These mislabeled “progressives” dislike citizen-signed propositions, as such measures bypass the institution the Big Government advocates control throughout most of the state —- elected officials. I doubt we’d be hearing the anti-proposition bleating from them if such were not the case.

    Moreover, the feigned concern about improprieties in signature gathering ignores the benefits of a full vetting of the prop once it is on the ballot —- especially compared to our chaotic state legislative procedures.

    I recommend an informative, humorous out-of-print book by the late State Senator H.L. Richardson —- “What Makes You Think We Read the Bills?”. Usually available via Amazon.com.

    Most of us know that in the closing days of each legislative session, our intrepid elected leaders vote on literally hundreds of ever-changing bills —- some even changed surreptitiously, or even entirely using a smarmy practice labeled “gut and amend.” No one knows what is in all —- or likely even most —- of the bills.
    Hearings are bypassed, or the bills voted on are quite different from the ones that went to the hearing months before. Seldom do the legislators hear a full debate by both sides. As the session deadline approaches, logrolling too often becomes the primary criteria for passing each other’s bills.

    It’s not your high school civics class version of government. No-sir-re-bob!

    Compare that unfixable legislative morass with the proposition process. Once a prop is ballot qualified, it cannot be amended. Each side gets to present their ballot arguments —- and those arguments are sent to all the registered voters in the state.

    Perhaps more important, we voters quickly can see (often just by the signers of the arguments) which groups are on which side —- a wonderful shorthand way of making an informed decision as to how to vote. And we have months to make our decisions. Additional information is available on who is FUNDING each side of each prop.

    Yes, the proposition system is awful. Capricious voters making sometimes ill-informed decisions.

    But, as comedian Henny Youngman responded when asked
    —- How’s your wife?
    —- “Compared to what?”

    Bad as the initiative process is, the legislative process is worse. The real world of capitol shenanigans trumps the idealized stereotype of wise officials judiciously deciding our fate. If you like just laws, you don’t want to visit this legislative sausage factory to see how it really works.

    BTW, one control we still need —- a super-majority to pass any law. And probably higher than a two-thirds majority. I doubt we’d miss most of the failed legislation —- or propositions.

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  3. eck
    eck 6 July, 2019, 20:54

    The 5% threshold is ridiculously low. Tere’s enough ignoramuses in this state to get just about anything on the ballot. It should be raised to at least 10%. Not gonna happen I’m afraid.

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Chris Reed

Chris Reed

Chris Reed is a regular contributor to Cal Watchdog. Reed is an editorial writer for U-T San Diego. Before joining the U-T in July 2005, he was the opinion-page columns editor and wrote the featured weekly Unspin column for The Orange County Register. Reed was on the national board of the Association of Opinion Page Editors from 2003-2005. From 2000 to 2005, Reed made more than 100 appearances as a featured news analyst on Los Angeles-area National Public Radio affiliate KPCC-FM. From 1990 to 1998, Reed was an editor, metro columnist and film critic at the Inland Valley Daily Bulletin in Ontario. Reed has a political science degree from the University of Hawaii (Hilo campus), where he edited the student newspaper, the Vulcan News, his senior year. He is on Twitter: @chrisreed99.

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