Three States Legal Challenge Faces Hurdles

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

I’m not a fan of the Cal 3 States initiative filed by Silicon Valley entrepreneur Tim Draper and I’m not a legal scholar but I wonder if a court would reject a lawsuit filed to take the measure off the ballot before voters decide the question.

On rare occasions, courts in California have removed qualified ballot initiatives before the voters have a say. But the California Supreme Court has also noted that the initiative process is a cherished right of the people.

The Conservation and Planning League filed the lawsuit. Two significant points the court will consider is whether the legislature has to approve a dissection of the state, as the U.S. Constitution requires, and whether the statutory initiative is valid because the lawsuit says splitting the state requires a “revision” of the constitution and initiatives only allow for amendments.

Article IV, Section 3, Clause 1 of the United States Constitution provides that no state shall be formed within the jurisdiction of another state without the consent of the legislature of the state (and the approval of Congress.) The initiative attempts to deal with this issue saying through the initiative, if the measure passes, the people will be acting as the legislature giving consent.

This seems a similar argument that was decided in a U. S. Supreme Court case that had great importance to California—if an initiative could establish an independent legislative redistricting commission to create congressional districts rather than having the legislature perform this task. California followed this route, as did Arizona. The legislature in Arizona filed suit claiming that the U.S. Constitution specifically required that only the legislature could create districts.

By a 5 to 4 margin the Supreme Court backed the Arizona redistricting commission (and indirectly California’s commission, as well) allowing the initiative vote to stand as legislative acquiescence. Would that decision serve as precedent when the court considers the role of the initiative as a substitute for the legislature in the Cal 3 states case? By the way, a member of the majority in the Arizona redistricting case was the only Californian on the court, Anthony Kennedy, who is now retiring from the court.

The charge that the 3 States initiative is an impermissible revision of the state constitution has more power. However, defenders of the initiative could argue that, in the end, the state constitution is not being revised by the initiative but rather it is being abolished. If three new states are created they will undoubtedly form their own constitutions making major changes to the constitutional law that now governs California. Isn’t that the goal of the Cal 3 States measure?

I’m sure the lawyers on both sides will duel over finer points of the law than I raise here. But I do not think it is certain that the 3 States measure will be removed from the ballot.

The voters may have a say in November, after all—and as I stated in a previous post, I expect that say to be a resounding “no!”

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