Timing for an Abolish-the-Death-Penalty Measure

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

In the wake of Gov. Gavin Newsom’s action to issue a moratorium on the death penalty, Assemblyman Marc Levine filed a constitutional amendment, ACA 12, to abolish the death penalty. Given the backlash against Newsom’s action there is no guarantee that the Democrats, despite their supermajorities in both houses, would garner the necessary two-thirds vote to put the amendment on the ballot. But if they do, I would look for it sooner rather than later.

There was immediate conjecture that a constitutional amendment to abolish the death penalty could join other criminal law reforms aimed for the November 2020 ballot. Already qualified for that ballot is a referendum on the bail reform passed by the legislature and an initiative to roll back sentencing reforms and to reclassify violent crimes.

However, Democratic strategists don’t want to see the anti-death penalty amendment on the November ballot. Since abolishing the death penalty received a negative vote from the people as recently as 2016, a renewed effort might bring more Republicans and middle of the road voters to the polls. As the Nooner’s Scott Lay points out in his piece on this page there are implications for down ticket senate and assembly races Democratic candidates may not want to deal with in a General Election. Voters in a number of districts represented by Democrats strongly supported the death penalty in prior recent elections.

The issue would not have the same impact in a primary election. Therefore, the March primary would be a safer bet and a more likely destination if the measure moves this legislative session.

Remember, when Gov. Jerry Brown signed the law that all initiatives appear on General Election ballots? That left the primary ballot open for all legislative actions that required a vote of the people. For example, a legislative-passed constitutional amendment, Proposition 69, to create a lockbox for transportation funds, appeared at the June 2018 primary election.

The March primary means the death penalty measure would not get tangled up with the other criminal justice measures. More importantly, the Democratic turnout in March may be even greater than the expected robust turnout in November.

The hotly contested, close competition among the numerous candidates seeking the Democratic presidential nomination could serve as a strong magnet drawing Democratic voters to the polls. Yes, a big voter turnout is expected in November in this blue state with President Trump on the ballot. However, there is also the possibility of Democratic voters saying “why bother” when they are certain the state will go for the Democratic candidate whomever he or she is.

In March, a measure to abolish the death penalty could turn up Republican turnout a notch, but it will not Match the greater attraction of the presidential primary, perhaps giving the amendment a greater chance for success.

Then again, the first voters Levine and his Democratic co-authors of ACA 12 have to persuade are their fellow Democrats in the legislature to put it on the ballot. Political reality and voters’ repeated preference to keep the death penalty may be too big an obstacle to secure the necessary legislative votes.

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