We the Legislature

Joe Mathews
Connecting California Columnist and Editor, Zócalo Public Square, Fellow at the Center for Social Cohesion at Arizona State University and co-author of California Crackup: How Reform Broke the Golden State and How We Can Fix It (UC Press, 2010)

In a 5-4 decision preserving Arizona’s redistricting commission (and presumably California’s by extension), the U.S. Supreme Court had a direct and useful reminder for Californians: when we cast ballots on ballot initiatives, we’re acting as the state legislature.

Specifically, the court found that while the U.S. Constitution requires the State Legislatures to handle redistricting, the people are acting as the legislature when they vote on referenda or initiatives. “Our precedent teaches that redistricting is a legislative function, to be performed in accordance with the State’s prescriptions for lawmaking, which may in­clude the referendum and the Governor’s veto. The exer­cise of the initiative, we acknowledge, was not at issue in our prior decisions. But as developed below, we see no constitutional barrier to a State’s empowerment of its people by embracing that form of lawmaking,” Ruth Bader Ginsburg wrote in the majority opinion.

That, of course, runs in direct conflict with how Californians think and talk about direct democracy. We see ballot initiatives as wonderful precisely because they have nothing to do with the legislature. We are wary of any changes that would give the legislature any real power in the initiative process.

We ought to re-think how we think. And the Supreme Court shows the way. If we are serving as the Legislature when we vote on Prop Whatever, we ought to act like it. We need to read what we vote on. We need to have debates. We should have a process to amend initiatives both before and after we vote on them. And we need infrastructure for public participation.

And of course, the test of whether an initiative can be voted upon shouldn’t be money. It should be whether the idea, under scrutiny from legislators (the people), is any good. A process – a jury, a commission, a poll – to permit measures to make the ballot without a multimillion dollar signature gathering campaign should be required.

After all, we initiative voters are the Legislature. And the people’s Legislature we have now is so dominated by money and power it makes the elected legislature in Sacramento look positively Athenian.

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