Denise Cross / flickr

Referendums on legislative actions may be making a comeback in California.

Earlier this week, opponents of Senate Bill 277, the mandatory vaccination measure, began their quest to refer that legislative action to the voters for the November 2016 election. Already qualified to appear on that ballot is a referendum on banning single use plastic bags in the state.

Taking on legislative acts via direct democracy is not so common. The first obstacle is the short 90-day period allowed to gather the necessary signatures. Of course, with the low voter turnout in the last gubernatorial election, the number of signatures needed has dropped. Now, obtaining just 365,880 valid signatures will place a measure on the ballot.

While 49 referendums made it to the California ballot between 1912 and the most recent general election in 2014, 34 of those referendums appeared on ballots prior to the end of World War II. If you dismiss the referendums dealing with Indian Gaming and all the money that supporters and opponents on that issue have to help qualify a measure, since 2002, only two referendums have qualified for the ballot — a health care measure in 2004 and a redistricting referendum in 2012.

Now, we could see two on the next ballot. Maybe more.

Elections analyst, Allan Hoffenblum of the California Target Book, told the Los Angeles Times he thinks the vaccination referendum could qualify. “It’s a minority of people but it’s a sizeable minority of people. I would be surprised if it didn’t qualify. There is a lot of intensity.” Hoffenblum said.

While the measure may qualify, it faces big obstacles to overturn the legislative action. Polls indicate support for mandatory vaccination of school children. The PPIC poll in May found that 67 percent of all Californians and 65 percent of parents of public school children support the mandate. Furthermore, while passionate opponents of the law would be good foot soldiers in an effort to get the measure passed, there remains a question of how much money could be raised to deliver the message statewide.

And, while pharmaceutical companies have claimed a distance from the law, they could play a financial role in any ballot contest in support of the law.

In addition, there is the often difficult to understand requirement that if you are for the referendum but against the law you must vote “No.” The referendum essentially asks if you support the law passed by the legislature, “Yes” or “No.” The question is not whether you support the referendum. Voters can be confused.

Could other referendums come along?

Probably the most well-known referendum in California history was the battle over a peripheral canal. Voters overwhelmingly rejected the canal in June 1982. A proposal in the same vein, Gov. Jerry Brown’s push for Delta Tunnels, could face a referendum if legislation passed to move the tunnels plan forward. (There is already an initiative effort that would require a vote of the people on major projects like the tunnels that is in the works. If tunnel legislation becomes law before the initiative is voted upon, opponents of the tunnels may turn to a referendum.)

Then there is SB350 to cut 50 percent of all petroleum use by 2030. If passed this term, could opposing oil companies mount a referendum and ask voters if they agree?

Other major issues that could arise from the special sessions will not face referendums. If tax increases are passed by the legislature, they will become law without opponents having the opportunity to refer that action to voters.

Article 2, Section 9(a) of the state Constitution prohibits referendums “providing for tax levies or appropriations for usual current expenses of the state.”

Gov. Brown has previously indicated that he doesn’t plan to ask voters about a tax increase this time around, and the voters can’t use the referendum power to demand a vote on taxes.

Proponents of the bill say the passage is a victory for science and public health, while opponents decry the bill’s infringement upon parental rights.

Assemblywoman Melissa Melendez, R-Lake Elsinore, said in a prepared statement that the issue at hand with SB277 was not “whether or not you support vaccines” but “about the freedom to make our own choices as citizens”:

“I am concerned this legislation is yet another overreach of the state trying to dictate how we live our lives. As a mother, I made the choice to have my children vaccinated because I believe that was right for my family. By denying the ability for parents to choose what is right for their children, we are robbing Californians from one of their most essential liberties. This is not about vaccines; it is about whether or not the government should be telling us how to raise our children.”

But during the Assembly hearing, Assemblywoman Lorena Gonzalez, D-San Diego, said, “As a mother, I understand that the decisions we make about our children’s health care are deeply personal. While I respect the fundamental right to make medical decisions as a family, we must balance out with the fact that none of us has a right to endanger others. SB277 strikes a balance.”

“This isn’t just about Disneyland,” said Assemblywoman Catharine Baker, R-San Ramon, referring to the measles outbreak that occurred last year. “And this isn’t just about the need to make sure we wait for a crisis.”

Assemblyman Mike Gatto, D-Glendale, voiced his opposition to the bill, calling it a “slippery slope” and said it sets a precedent where the state could mandate nearly anything “in the name of the common good, protecting others and stopping an outbreak.” He emphasized that the Legislature is “tasked with drawing lines” and said SB277 does not demonstrate where the line for medical necessity “reasonably ends to justify a law.”

A statewide poll from the Public Policy Institute of California released earlier this year revealed that more than two-thirds of California adults support barring unvaccinated children from attending public schools.

The bill now heads to the governor’s desk.

According to a summary from the health committee, SB277:

“Eliminates non-medical exemptions from the requirement that children receive vaccines for certain infectious diseases prior to being admitted to any public or private elementary or secondary school, or day care center. Specifically, this bill:

1. “Deletes the exemption based on personal beliefs from the existing immunization requirement for children in child care and public and private schools. Deletes related law requiring a form to accompany a personal belief exemption (PBE).
2. “Exempts students enrolled in home-based private schools or in an independent study program from the existing immunization requirement.
3. “Permits the California Department of Public Health (DPH) to add diseases to the immunization requirements only if exemptions are allowed for both medical reasons and personal beliefs.”

Assemblyman Devon Mathis, who has been a vocal critic of SB277, said in a prepared statement, “This bill, and my opposition, is not about vaccines, it is about combating an overreaching government from infringing on our Constitutional Rights, Parental Rights, Religious Freedoms and protect the relationship between the patient and their chosen medical professional.”

Assemblywoman Lorena Gonzalez, who voted yes on SB277 in the health committee vote, tweeted on Tuesday:

“#SB277 passes the Assembly Health Committee, 12-6. Proud to have voted AYE for science and children’s health. Next stop, Assembly floor.”

The bill now goes to the Assembly for consideration.

Sweeping changes

As CalWatchdog.com previously reported, state Sens. Richard Pan, D-Sacramento, and Ben Allen, D-Santa Monica, had to rewrite key passages of the bill’s language in order to head off potential constitutional challenges to its treatment of kids without the specified vaccinations.

The bulk of the original bill remained intact, however, sweeping away California’s longstanding and generous rules permitting parents to keep their children vaccine-free. “Several Republican senators tried to stall the bill by introducing a series of amendments that would have reinserted the religious exemption and required labeling of vaccine ingredients,” according to the Sacramento Bee. But Democrats moved swiftly to shut them down.

For some critics, barring unvaccinated children from public school remained a bone of contention. “It’s clear that a large portion of concerned parents will likely withhold their children from public schools because of their concerns or lack of comfort from the vaccination process,” said GOP state Sen. John Moorlach, according to the Christian Science Monitor.

But some carveouts were set to remain. “The legislation only addresses families that will soon enroll their children in school,” as Newsweek observed. “Under the proposed law, children who aren’t currently immunized are not required to get vaccinated until seventh grade. The law still allows families to opt out due to medical reasons, such as a history of allergies to vaccines and inherited or acquired immune disorders or deficiencies.”

The so-called grandfather clause represented a major concession to parents’ groups, which had succeeded in stalling Pan and Allen’s legislation once before. Now, as the San Jose Mercury News reported, “more than 13,000 children who have had no vaccinations by first grade won’t have to get their shots until they enter seventh grade. And nearly 10,000 seventh-graders who today aren’t fully vaccinated may be able to avoid future shots because the state does not always require them after that grade.”

Regulatory momentum

Despite the lenience built into the advancing legislation, the pro-vaccine logic that propelled it has already increased momentum for an even more assertive approach to enforcing inoculation.

As KQED News has noted, “two other vaccine-related bills are making their way through the Legislature a bit more quietly. One would require preschool and child care workers to have certain vaccinations; another seeks to improve vaccination rates for 2-year-olds.”

“If SB792 becomes law, California will be the first state in the country to require that all preschool and child care workers be immunized against measles, pertussis and the flu.”

Supporters of the ratcheted-up regulation sought to head off more controversy by downplaying the invasiveness and inconvenience of their approach. “We certainly aren’t out to arrest people who aren’t vaccinated,” said Kat DeBurgh, executive director of the Health Officers Association of California, a group that sponsored SB792. “We wanted to make this just like any other violation of code that an inspector would look for. If you don’t remediate, then there is a fine to the day care center.”

At the same time, pro-vaccination analysts have speculated that the Golden State will save money the more it ensures vaccination. Referring to a recent study showing that Iowa’s health care spending would double if it added a personal belief exemption, Tara Haelle suggested that California’s “health care cost savings would be far more substantial” once its exemption was eliminated, although, she conceded, “no thorough analyses are currently available.”