When you look at the initiative process we have, it’s clear that the California Supreme Court made the right decision this week in the Prop 8 case. But the decision also shows why we need a different initiative process.
The court said that initiative sponsors have standing to defend a measure in court when, as in the case of the Prop 8 same-sex marriage ban, the attorney general and governor won’t.
That fits California’s initiative process – which is an independent entity, separate from the other governmental branches. Yes, the attorney general writes a title and the secretary of state has a role in initiatives. But what distinguishes California’s initiative process is this separation from other branches – and the resulting inflexibility. The legislature has no formal role on the front end of the process. And the legislature can’t amend an initiative statute once it’s passed – unless the initiative itself permitted amendment. No other state or country with the initiative process has such an inflexible rule.
In this context, it’s natural that initiative sponsors should be able to defend their own measures. But is the context wrong?
In a word, yes. The legislature should be able to negotiate directly, propose counter proposals for the same line of the ballot, and amend measures once approved. Measures should have to live within the existing budget.
California also might consider barring measures that affect “human rights” from the ballot. This is the rule in some European states and countries with the process. A judicial review of initiatives on this point should come before signature gathering and a campaign begins – to save time and expense.
In an initiative process like this – an initiative integrated with the system of government — it would be reasonable to require the attorney general and governor to defend a successful initiative.
But the process we have remains a world apart.