Three Ballot Initiatives, Not Quite As Awful As Usual

Joe Mathews
Connecting California Columnist and Editor, Zócalo Public Square, Fellow at the Center for Social Cohesion at Arizona State University and co-author of California Crackup: How Reform Broke the Golden State and How We Can Fix It (UC Press, 2010)

You gotta take your good news where you can get it when it comes to California’s dangerously inflexible system of initiative and referendum. So this year’s three ballot initiative – Propositions 45, 46, and 47 – qualify as good news.

It might be more precise to say: those three initiatives are less awful than usual.

I’m not talking about the policy substance of the initiatives – which involve health insurance rate regulation (45), liability for medical errors and some other things (46) or criminal charges and sentencing (47). One can make arguments for and against those policies. But the issues and the policies aren’t the first question you should ask about California ballot initiatives. The correct first question is, instead: is it possible to fix the errors in these things?

The default for California initiatives is to not permit fixing – or amendment – by the legislative body at all. We’re the only place on earth where this inflexibility is standard on initiative statutes. And it’s the fundamental problem of the process; once you do something by initiative, there’s little you can do to undo it.

Which brings us to the good – well, the not-so-awful news. All three of these measures depart from the norm by permitting legislative amendment. For that, their sponsors should be praised.

The praise shouldn’t be all that strong. Because the initiatives don’t make legislative amendment easy. All three require a super-majority vote of 2/3 – thus creating new supermajorities in supermajority-mad California – to amend the measure, and require such amendments meet the spirit of the initiative. Prop 47 also permits the legislature to use a majority vote to further reduce sentences of the crimes mentioned in the act.

These three initiatives also don’t include a reckless provision that has become a new standard of sorts for initiatives – provisions giving legal standing and a black check to the initiative’s own sponsors to defend their own measure in court. Effectively such provisions turn initiative sponsors into mini-attorneys general. Fortunately, none of the three initiatives on the ballot has any such provision.

Yes, this is a low bar – permitting fixes and not writing legal blank checks – but when it comes to California initiatives, you must lower your expectations.

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