It’s been two months since Ronald George, chief justice of the California Supreme Court, gave a speech sharply critical of the ballot initiative process.
It was an important address. And, for the most part, the speech was on target in identifying California’s peculiar initiative process (we’re the only American jurisdiction in which a statute passed by initiative can only be altered by another vote of the people) as a culprit in the state’s governing and fiscal crisis.
But in the past couple months, as I’ve thought more about the speech, a few things have bothered me. I re-read it recently and offer two small criticisms, and one large one:
– George exaggerates in the speech how easy it is to qualify and pass an initiative constitutional amendment. California permits a relatively small number of petition signers – equal to at least 8% of the voters in the last gubernatorial election – to place before the voters a proposal to amend any aspect of our Constitution.” That’s not a relatively small number – right now, it works out to just under 700,000 valid signatures. As a pratical matter, petition circulators who want to be sure to qualify for the ballot need to gather more than 1 million signatures. That’s at least a $2 million process. There’s nothing “relatively small” about such an enterprise.
George also errs when he says that any measure that qualifies stands a “good chance” of passage. The chance is historically less than half. And any measure that’s on the ballot simply because it interests one peculiar interest doesn’t stand much chance at all.
– George compares Propositions 2 ( farm animal confinement) and Prop 8 (same-sex marriage ban) in a facile way. “Chickens gained valuable rights in California on the same day that gay men and lesbians lost them,” he said. This is an apples and oranges comparison. Well, sure. Chickens now will be able to stand and walk around in a cage. Gay men and women will have all legal rights California can give them – save the right to call their legally protected unions marriage. I believe they deserve that right and I opposed Prop 8. But I think it’s safe to say that even with their new “rights,” the chickens would trade places with gay Californians in a heartbeat.
– The Big Criticism. He gives the courts a free pass in civic dysfunction. George doesn’t talk about the courts, through judicially imposed mandates on prisons and furloughs and other spending-related matters, have contributed to the budget and governance crisis in California. I’d argue that the California Supreme Court, particularly through its Serrano decisions, bears no small measure of responsibility for the decline of the state’s education system.
But George sees the courts as victims of the initiative process and the budget crisis. “The court over which I preside frequently is called upon to resolve legal challenges to voter Initiatives,” he said. “Needless to say, we incur the displeasure of the voting public when, in the course of performing our constitutional duties as judges, we are compelled to invalidate such a measure.”
Cue the violins.
Judges have to make tough decisions. And sometimes they have to invalidate laws, whether they come from voters or from legislators. That is not evidence of there being something wrong with the initiative process.
Here’s hoping that the chief justice keeps speaking out on important topics at this crucial time – and that he addresses the judiciary’s role in getting us into this mess, and offers thoughts on what role judges have to play in getting us out of it.
The full text of the address is here for those who want to revisit it.