As Judge Cadei wrote in his one-page ruling, the Sodomite Suppression Act – also known as the “Shoot The Gays Initiative” – is “patently unconstitutional on its face,” and any further filing action “would be inappropriate, waste public resources, generate unnecessary divisions among the public, and tend to mislead the electorate.”

Regarding the ruling, Human Rights Campaign President Chad Griffin said in a press release:

“Lest there was any doubt, a heinous California ballot initiative seeking to put gay people to death has been found unconstitutional. HRC thanks Attorney General Kamala Harris for her continued leadership in standing up for the rights and dignity of LGBT Californians, and Superior Court Judge Raymond Cadei for recognizing that this barbaric initiative has no place on a ballot in California or anywhere else.”

The act was initially filed in February by Orange County attorney Matt McLaughlin, and called sodomy an “abominable crime against nature” and “a monstrous evil.” McLaughlin proposed gay and lesbian “offenders” should “be put to death by bullets to the head or by any other convenient method.”

Tori Rector/flickr

In March, Attorney General Harris requested the state Superior Court to relieve her from the responsibility of creating a title and summary for the initiative. “This proposal not only threatens public safety, it is patently unconstitutional, utterly reprehensible, and has no place in a civil society,” she said in a prepared statement. “If the court does not grant this relief, my office will be forced to issue a title and summary for a proposal that seeks to legalize discrimination and vigilantism.”

Since the filing, two larger issues have worked themselves into the discussion of reforming the state ballot initiative process.

First, because it costs $200 to submit an initiative and begin the process of gathering 365,880 signatures to get the measure on the ballot, some believe the fee should be raised in order to prevent abuse of the system.

Assemblyman Evan Low, D-Campbell, said in a release, “While the court’s ruling on this egregious initiative proposal is both legally and morally the right action to take, the events bring attention to the need to reform the initiative process.” He and Assemblyman Richard Bloom, D-Santa Monica, introduced Assembly Bill 1100, which would increase the filing fee from $200 to $8,000. The legislation since then has been amended to increase the fee to $2,500, but critics worry a higher fee would prevent legitimate grass-roots petitioners from gaining traction without the help of well-off backers.

Second, some advocate that the state attorney general should be given the power “to kill a proposal that would conflict with superseding law” – such as murder. Technically, any proposed initiative must be given a title and summary by the state attorney general, but some say the AG should have the authority to turn down the numerous long-shot and outright offensive measures that have come up throughout the years.

However, this kind of power could enable elected partisan officials to filter out all the measures that go against their own political agendas. Kim Alexander, president of the California Voter Foundation, told NPR that the initiative process must “be kept at arm’s length from the Legislature and the politicians who frequently want to usurp its power.”

After more than a century in California’s political spotlight, the state’s initiative process will be getting a major revise next year. Even more surprising, both Democrats and Republicans in the famously partisan Legislature are happy to see it happen.

While Republicans made up most of the limited opposition when SB1253 made its way through the Legislature, the two GOP leaders, state Sen. Bob Huff of Diamond Bar (Los Angeles County) and Assembly member Kristin Olsen of Modesto, both voted “aye.”

“It was a bipartisan effort,” said former state Sen. Darrell Steinberg of Sacramento, the Democrat who authored the bill. “People like the initiative process but believe it can be improved.”

The measure opens the way for increased collaboration between lawmakers and backers of initiatives by requiring the Legislature to hold a joint public hearing on a proposed initiative as soon as 25 percent of the required signatures are collected. It also calls for the attorney general to open a 30-day public review before approving an initiative for circulation and lets supporters amend the initiative during that time.

A much-bigger problem: Slanted ballot language

These reforms make sense and should lean to cleaner ballot measures.  But if one looks back over the past 15 years, all of the biggest outrages in the initiative process involved another problem that the Legislature declined to try to fix: the extraordinary way that the last three attorneys general — Bill Lockyer, Jerry Brown and Kamala Harris — have slanted ballot language to achieve the outcome that Democratic special interests prefer.

Gov. Schwarzenegger’s bid to use a 2005 special election to force through major reforms was hurt badly by Lockyer’s ballot titles and language. Proposition 76 would have created a rainy-day fund and a less chaotic budget process. Lockyer made it sound like an attempt to hurt school kids, titling it “State Spending and School Funding Limits. Initiative Constitutional Amendment.”

In one week alone in 2010, then-Attorney General Jerry Brown had his ballot language thrown out by judges who agreed that Brown wasn’t playing fair on a ballot measure challenging AB 32 and one making it easier to pass a state budget without Republican votes. (He tried to sabotage the first one, Prop. 23, and promote the second one, Prop. 25.)

Kamala Harris has continued this unfortunate tradition. This CalWatchdog post looks at her attempt to help trial lawyers with their misleading 2014 ballot measure.

Lockyer, Brown and Harris all say they don’t draft the language; instead, they depict it as a chore that they leave to their “professional staffs.” But if that were the case, then why have all three AGs opposed reforms transferring ballot-language responsibilities to the FPPC, the LAO or a panel of retired judges?

Because they know being able to compose ballot language on measures digging with the biggest issues of the day gives the California attorney general extraordinary power.

The worst ballot-language abuser of all

But the twist to all this is that the single worst abuser of the privilege of writing ballot descriptions was the Legislature itself. In 2008, Democrats in the Assembly and Senate directly wrote the highly misleading title and summary for Proposition 1A, the measure which provided $9.95 billion in bond seed money for the bullet-train project. Here’s the summary:

SAFE, RELIABLE HIGH-SPEED PASSENGER TRAIN BOND ACT. To provide Californians a safe, convenient, affordable, and reliable alternative to driving and high gas prices; to provide good-paying jobs and improve California’s economy while reducing air pollution, global warming greenhouse gases, and our dependence on foreign oil, shall $9.95 billion in bonds be issued to establish a clean, efficient high-speed train service linking Southern California, the Sacramento/San Joaquin Valley, and the San Francisco Bay Area, with at least 90 percent of bond funds spent for specific projects, with federal and private matching funds required, and all bond funds subject to independent audits?'”

This prompted a Howard Jarvis Taxpayers Association lawsuit. That suit led a state appellate court to issue a jaw-dropping decision that forever banned the Legislature from writing ballot language.

The bill lengthens the signature gathering period a month, a plus for grassroots organizations. It allows proposition proponents to pull an initiative if a legislative compromise is reached, an incentive for ballot measure authors to work with the Legislature and vice-versa; and certainly a step that can save state money and voter aggravation.

The measure also brings the Legislature into initiative discussions early. Once proponents collected 25 percent of the signatures needed to qualify for the ballot, the Legislature would hold committee hearings on the measure. This, of course, means additional work for committee staff and members and those who count the signatures.

Tim Draper’s unsuccessful Six Californias initiative, under these rules, would have had its day in front of legislative committees (and one would assume be covered by many media observers).

Last bridge

However, SB1253 didn’t cross the last, crucial bridge.

Discussed endlessly in the work group was the sensitive issue of writing the titles and summaries for ballot initiatives. Currently, that job resides with the attorney general.

Attorneys general of both parties have been criticized over the years for slanting titles and summaries to benefit certain political interests. This should not come as a shock because the attorney general is a partisan officer.

That is why many supported turning over the initiative title and summary authorship to a more neutral party.  The idea of removing the job of writing a ballot initiative title and summary from a partisan elected official is one I long supported, as I recommended in 2011 at a conference sponsored by the Supreme Court Historical Society and the League of Women Voters.

That reform did not make it into SB 1253 — a bridge too far for a majority of the working group and Steinberg, but a bridge that should be crossed.