Election Ballot as Advisory Poll

Joel Fox
Editor and Co-Publisher of Fox and Hounds Daily

Two separate California appellate court decisions last week – one directly, one indirectly – deal with the question that voting on state ballot measures can be used to simply get voters’ opinions. The court was directly dealing with the status of advisory measures in the case of Proposition 49 to upend the Citizens United case. The court decision on California’s bullet train is not so direct but ultimately may have the same result.

Proposition 49, the Amendment to Overturn Citizens United Ruling, asks voters whether Congress shall propose, and the California Legislature ratify, an amendment to the U.S. Constitution to overturn Citizens United v. Federal Election Commission to allow for full regulation or limitation of campaign contributions.

The supposed goal of the measure is to take the temperature of the public on limiting spending on politics. The purpose of the measure is something different.

Some, like Sacramento Bee columnist Dan Walters, have argued the true purpose of the proposition may be to bring more Democrats to the polls in an off-year election that contains little drama or incentive to increase voter participation.

The Howard Jarvis Taxpayers Association challenged whether the ballot should be used as a thermometer of public opinion in a lawsuit. HJTA, taking the case directly to the Third District Court of Appeals argued that the bill putting the measure on the ballot was an illegitimate exercise of legislative power, that the ballot was reserved for lawmaking not advisory actions.

The appellate court disagreed, rejecting the lawsuit 2 to 1 without comment.

Another appellate court decision checked a lower court ruling saying that the state failed to comply with the law with its initial plan for the San Francisco to Los Angeles high-speed-rail. The lower court had ruled that the state failed to meet legal requirements in the 2008 bond law passed by voters, especially provisions for funding the bullet train.

The upper court said that funds were available to proceed with the project at this stage. However, the appeals court made it clear that the ruling reflected the conditions in the preliminary bullet train plan, not the final version.

While a narrow decision, this ruling raises concerns that perhaps a court would find that the dictates in the bond’s wording do not have to be followed but that a general idea of what the voters approved is enough. In other words – the vote could be advisory.

Consider that supporters of the high-speed-rail argued — before the Appeals Court decision came down — that the vote was not exactly meant to follow the promises made in the ballot argument.

As I wrote a couple of months ago, the former chairman of the state’s rail agency, Rod Diridon, said the language in the law provides “guidelines, not hard and fast rules. ” Meanwhile, Richard Katz, former rail board member and state legislator, was quoted: “People voted for the concept of high-speed rail.”

It appears staunch supporters of the bullet train look at the bond vote as an advisory measure for the train.

A dangerous precedent will be set if the legislature can interpret the law as an advisory to go forth on a broader concept but not necessarily follow provisions in the law on which the voters made a judgment.

In 1984, the California Supreme Court removed a true advisory measure from the state ballot that urged Congress to pass a balanced budget amendment. The court declared that the ballot measure was not a “public opinion poll.”

The state Supreme Court may be soon called upon to see if it will uphold its own precedent setting decision.

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