Harris Should Not Circulate The “Sodomite Suppression Act” to Voters

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)

Does an attorney general of California have a duty to approve for circulation any ballot initiative she receives?

The legal consensus is that Attorney General Kamala Harris does. Reviewing and titling an initiative for circulation is a ministerial act that the a.g. Is supposed to perform without comment. Previous court rulings have found that Harris does not have discretion.

Still, I’d like to see Harris block the “Sodomite Suppression Act” from going out to voters. This initiative would require that anyone who touches a person of the same gender for sexual gratification be put to death by “bullets to the head or by any other convenient method.”

Harris would be justified in refusing to clear it for circulation for any number of reasons. It advocates murder, and her job involves protecting the public and enforcement of the laws. It’s obviously unconstitutional – and Harris has sworn an oath to defend the constitution.

But it goes beyond that to this point: we simply should not permit consideration of initiatives that violate fundamental human rights.

I’ve written here before about the need for a Human Rights exception when it comes to ballot initiatives. Initiatives are the people’s process, and people need to be able to bring forth their ideas, and get a hearing. And public officials must protect it. But when you are taking away fundamental human rights – as in the right to live – it is appropriate to give our public officials a formal exception that they can invoke to block an initiative that violates fundamental human rights.

It would be best to have a formal process and clear standard for this – with the power entrusted to a particular official, or to the courts, or even to a committee of citizens. And the exception should be tailored so that it is invoked only rarely.

Many friends and sources of mine disagree with this, and they don’t want even this initiative blocked. They are rightfully wary about letting elected officials mess with the initiative process. And they point out, correctly, that Harris and other attorneys general have misused their power to write titles and summaries of measures to favor their own political interests. Which is why I’ve also argued for putting the title and summary process, and other ministerial functions, in the hands of citizens’ juries, who would be more likely to produce fair, clear language.

But supporters of the initiative process must also recognize that huge damage can be done to the legitimacy of the process by initiatives that violate such fundamental rights. The right to initiate laws or constitutional amendments would be stronger for giving some entity to power to invoke a human rights exception.

In fact, the best way to strengthen the process would be to build a citizen-led participatory infrastructure around our initiative process – to create space and more time for deliberating over initiatives, fixing initiatives, putting them on the ballot, and developing clear descriptions and arguments. (The Citizens Initiative Review in Oregon is already doing some of this). Let citizens themselves, drawn at random from the population, do all these things – and let citizens keep off the ballot initiatives that violate our human rights.

In the meantime, Harris would be wise to block this measure and fight to defend her decision in the courts – while calling publicly for just this sort of participatory infrastructure.

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