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.

San Diego City Councilman Todd Gloria will ask the City Council and state lawmakers to look into making it harder to put referendums on the ballot after legislation he supported, including raising the minimum wage, were derailed.

Since December 2013, business groups have gathered enough signatures to block three City Council decisions: an update to Barrio Logan’s community plan, an affordable housing linkage fee and an increase to the city’s minimum wage.

Voters overturned the Barrio Logan community plan update, and the City Council rescinded its decision on raising the linkage fee, a construction fee that goes toward paying for affordable housing. The minimum wage increase will go before voters in 2016.

Gloria said there was “documented deceit” by the paid signature gatherers who worked to qualify some of the referendums, and he wants to make the process more transparent.

“I think that every San Diegan has real questions about whether the referendary tool is really a tool of the people any longer, or is it really just a high-priced tool that’s reserved for folks who can afford lobbyists, consultants and others to really affect a political outcome that they could not get through the normal public process,” he said.

That’s from a KPBS account from last month.

Direct democracy abuses: Ours are OK, not theirs

Gloria identifies a real problem. But this is a classic example of how hardball politics only offend a politician when his side is on the losing end. The most notable national example is the Senate filibuster rule requiring a supermajority of 60 votes to advance broad categories of legislation. When one party has 51 to 59 seats, it views the other party’s use of the filibuster as un-American and undemocratic. But when the same party is in the Senate minority, the filibuster is depicted as a wise way to slow down hasty and impulsive lawmakers and to encourage bipartisanship.

The San Diego Democrats who worry about the sanctity of direct democracy because of the deceptiveness of paid signature-gatherers have had little or nothing to say about the increasingly common practice of unions encouraging fake signatures to make it more likely that initiative petitions are invalidated when election officials’ samples of petitions show irregularities.

Here’s part of an overview of this phenomenon that I wrote for Cal Watchdog in November 2012:

For decades, signature-gathering to win placement of measures on the local or state ballot in California has followed a basic script. Once proponents gathered some 30 percent more signatures than the minimum threshold necessary, they shut down operations, confident that their measure would easily make the ballot.

But in the past three years, this script has been rewritten, at least when it comes to measures that threaten the interests of public employee unions or that target their supporters. …

In November 2009, an attempt to recall Assemblyman Anthony Adams, R-Claremont, never made the ballot even though proponents turned in 58,384 signatures –- 63 percent more than the 35,825 necessary to force a vote on whether Adams should be ousted. A random sample of 1,839 ballots had shown only 42 percent were valid.

Adams was a darling of unions for providing a decisive vote in the Legislature in February 2009 for $12.8 billion in higher income, sales and vehicle taxes, breaking past promises to his constituents. …

In July 2010, a proposed initiative to force the outsourcing of more government services by the San Diego city government faced a similarly mysterious demise. [Advocates] turned in 134,441 signatures -– 39 percent more than the 96,834 needed. But a random sample of 3 percent of signatures showed so many duplicate signatures and ineligible signers that officials estimated only 74,732 were valid.

In July 2011, a proposed initiative that would have changed the makeup of the San Diego Unified school board and likely weakened the local teachers union’s control of the board also failed. San Diegans 4 Great Schools turned in 129,283 signatures –- 39 percent more than the 93,085 needed. But a full hand count found that just 90,027 were valid –- with a stunning 11.4 percent of the signatures being duplicates.

A leader of San Diegans 4 Great Schools expressed bafflement at this “aberration.” But in San Diego political circles, it was accepted as a given that local union members had monkey-wrenched both the 2010 and 2011 initiatives.

This remains true. In San Diego, backers of ballot measures with any anti-union overtones have changed how they gather signatures, spending much more money and time to prevent this form of election fraud. Deceptive signature-gatherers are not the only problem with direct democracy in California’s second-largest city

Usually when an ad campaign starts on radio, there is an active political campaign behind it.

However this week when I did a Google search for “Californians Against Identity Theft,” the group which claims responsibility for the ad, nothing popped up. And even this morning when I researched the group, again nothing appeared in the Google searches.

But when I did one more search just after noon today, a new website popped up for “Californians Against Identity Theft,” claiming that ballot initiatives lead to ballot fraud, and identity theft. “Ballot fraud is any attempt to mislead voters or qualify a ballot measure in a way that skirts the rules,” the website states. “This includes misleading ballot titles, fake signatures, or people gathering signatures who aren’t allowed to do so.”

The radio ad features a woman telling her husband that pushy signature gatherers at the grocery story successfully convinced her to sign a petition. Her husband tells her that she should not have signed the petition because paid signature gatherers move from state to state stealing identities. “The Legislature called it an identity theft starter kit. Now we really need to watch our bank statements and credit information,” the husband says.

“That’s it, I’m not singing any more petitions. I guess the lesson here is not to give our name and address to anyone we don’t know,” replies the woman.

A brief story in the Sacramento Bee today reported that a website for the group was launched today, after they published the story about the ads. “Update 11:36 a.m.: A website for the group has been launched at this link.” 

“The group does not appear to have any ties to legitimate organizations dedicated to protecting consumers from identity theft, ” reports the Bee. A representative of Common Cause said he could not think of a situation where identity theft occurred from signing an petition and added  that the ad “sounded like an attempt to ‘provoke a fear’ to discourage people from signing petitions.”

A search of the Secretary of State’s website did not find any ballot measures sponsored by “Californians Against Identity Theft.”

But there have been many attempts to end the ballot initiative process. Currently, Assembly Bill 651 (Hueso), would require any firm that uses paid signature gatherers for petition circulation, register with the Secretary of State and pay a registration fee. The bill made its way through the Assembly already, and was recently amended in the Senate twice (latest version of the bill). The bill currently awaits a floor vote.

Another bill attempting to alter the initiative process was AB 6 (Saldana) from 2009, which would also have required petition firms to register with the Secretary of state and pay a fee. In the veto message of AB 6, Gov. Arnold Schwarzenegger said, “The people of California often exercise their important role in government oversight through the initiative, referendum and recall process. I cannot support a measure that places an undue burden on reform-minded Californians.”

SB 68 (Corbett) will “prohibit a person from paying another person, or being paid based on the number of signatures obtained on an initiative, referendum, or recall petition.” Democratic Sen. Ellen Corbett (San Leandro) said, “Some signature gathering firms compensate circulators based on the number of signatures they collect. Some circulators reach the deadline to qualify initiatives by illegally misinforming voters and forging names. Others have forged signatures onto their petitions by copying names they chose from a phonebook. Lastly, some have inserted carbon paper and a second petition behind the original one in order to collect signatures.”  SB 68 already made it through the Legislature and awaits the governor’s signature.”

The radio ad should arouse plenty of suspicion. This is one bill to watch closely, as well as the suspicious ad campaign, as it is using identity theft as a cover to alter the ballot initiative process and ultimately limit voter access.

(Listen to the ad here)

JULY 29, 2011