The U.S. Supreme Court decision on Prop 8 has inspired bipartisan calls for a push to give initiative proponents a way to defend their initiatives when elected officials refuse to.
As I’ve explained in this space recently, this push is pointless at best (proponents already have standing where it matters) and problematic at worst (in that elected officials’ power to refuse to defend laws that blatantly violate people’s rights is a worthy check on the process).
But that doesn’t mean that the Prop 8 case shouldn’t inspire reform. It should. In fact, the entire experience of Prop 8 is itself very strong evidence that California should change the way it handles ballot initiatives that change the constitution.
The core problem Prop 8 exposes has to do with time. A constitution is supposed to be full of timeless principles, but California (and some other states) permit the constitution to be changed by the voters in one election by a simple majority. It’s like taking a snapshot in time to decide principles forever. For this reason, California is stuck with constitutional amendments on non-constitutional subjects that were approved long ago by voters now dead or gone. The effect is that we are governed by ghosts.
Prop 8 is a particularly egregious example of the problem. Voters narrowly approved the constitutional ban on same-sex marriage in November 2008, with just over 52 percent of the vote. But public opinion was changing rapidly on marriage, and, less than 5 years later, more than 60 percent of Californians now support legal, civil same-sex marriage – the very thing they made unconstitutional just a few short years ago.
So what’s the solution? Introduce the element of time into the constitutional amendment process. Before we add an initiative to the constitution, require voters to approve it at least twice – in successive elections. And before we add a legislative constitutional amendment to the ballot, require the legislature to approve it twice, in consecutive sessions.
This extends the time to deliberate, it gives more people the ability to participate in the decision-making, and it provides space for re-deliberation and for reaction if there’s a surprising result in the first round.
This is also a reform that has stood the test of time in other places. Eleven states require two passages by the legislature of constitutional amendment proposals. Our neighbor Nevada requires the passage of constitutional amendments in two elections.
I’m a believer in direct democracy, and other participatory forms, as crucial parts of any truly democratic system of governance. And so I would combine these limits on constitutional amendments with other changes that would make it easier to qualify referenda and initiative statutes (as opposed to constitutional amendments) for the ballot.
The combination of reforms – encouraging direct democracy around laws, while discouraging it around constitutional amendment – would make a ton of sense in California, with its monstrously long and confusing constitution.