Democratic Assemblymen Evan Low of Campbell and Richard Bloom of Santa Monica have proposed a 12-fold increase in the fee charged to obtain a title and summary for a proposed ballot measure. Low introduced the measure after a public uproar over an outrageous ballot measure that proposed a death penalty for gays and lesbians.

“We live in California, the cradle of direct democracy, but we also need a threshold for reasonableness,” Low said in a press release. “Amending laws and making statewide policy is not something that should be taken lightly.”

The bill, which passed the State Assembly in May on 46-28 vote, is now quickly moving its way through the State Senate.

Sodomite Suppression Act spawns fee hike

Since 1943, any Californian with $200 has been able to obtain the necessary paperwork to begin collecting signatures to put their proposal on the ballot. The reasonable filing fee has allowed average citizens and grassroots organizations to shape the political debate. Often times, the text, title and summary are enough to generate free publicity for an idea, including outrageous and blatantly unconstitutional measures.

Earlier this year, Orange County attorney Matthew McLaughlin paid his $200 filing fee and submitted the necessary paperwork to circulate “The Sodomite Suppression Act.” The proposed initiative would have “put to death by bullets to the head” gays and lesbians as well as banned anyone “who espouses sodomistic propaganda” from holding public office, receiving government benefits or being employed by the state.

Low said that the anti-gay measure inspired his decision to introduce Assembly Bill 1100 to increase the filing fee.

“It’s disturbing to hear that a licensed member of the California State Bar is putting forward a measure that attacks lesbian and gay members in our community,” Low said in a March press release announcing the bill. “But Mr. McLaughlin’s immoral proposal is the just the latest – and most egregious – example of the need to further reform the initiative process.”

Anti-gay measure blocked, filing fee hike remains

Attorney General Kamala Harris refused to grant the measure a title and summary, and instead sought court approval to ignore the initiative. Earlier this week, California Superior Court Judge Raymond Cadei ruled in Harris’ favor, granting her the legal authority not to issue a title and summary.

With the court’s ruling to block the measure, one consumer advocacy group says that the filing fee hike is no longer needed.

“While we have reservations about how the court short-circuited the process, its decision made the bill irrelevant,” Carmen Balber, executive director of Consumer Watchdog, wrote in a letter to state lawmakers. “And, unlike the courts, AB 1100 won’t guarantee an end to similar initiatives. But it will stop legitimate citizen initiatives.”

That position was supported by the Los Angeles Times, which recently noted in an editorial that “the fee should not be used as a tool to make it harder to file undesirable initiatives.” Yet, despite the court’s ruling, Low is unwavering in his mission to pass a 12-fold increase in the filing fee.

“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 said.

Right, left oppose filing fee hike

Asm. Evan Low

Even before the court’s decision to block the anti-gay measure, groups on both sides of the aisle expressed concerns that a fee increase could limit the ability of average citizens to use the state’s tools of direct democracy.

Consumer Watchdog, one of the most vocal opponents to the filing fee hike, reviewed filing fees for more than two dozen states that have an initiative process. The overwhelming majority have no filing fee, with just five states charging a nominal fee. Currently, Mississippi has the highest filing fee in the country at $500.

“It’s outrageous that the state that birthed direct democracy would charge its citizens an initiative filing fee that is five times greater than the next highest state – Mississippi,” Consumer Watchdog argued in its opposition letter.

Opposition to AB1100 isn’t limited to Consumer Watchdog. Both the California Taxpayers Association and the Howard Jarvis Taxpayers Association have formally opposed the bill.

The filing fee alone doesn’t put a measure on the ballot. The threshold for qualifying a ballot measure is 5 percent of the total votes cast in the previous gubernatorial election. As a result of California’s record low turnout in last November’s election, that threshold is at its lowest in three decades, but still requires 365,880 valid signatures.

In 2010, a similar proposal passed both houses of the Legislature before it was vetoed by then-Governor Arnold Schwarzenegger. “While well-funded special interest groups would have no problem paying the sharply increased fee, it will make it more difficult for citizen groups to qualify an initiative,” Schwarzenegger wrote in his veto message.

This year’s bill will be heard by the Senate Appropriations Committee on June 29.

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.”