Cal Prop. 8 and Direct Democracy "Run Amok"

12/08/2008 05:12 am ET | Updated May 25, 2011
  • Bennet Kelley Host, Cyber Law and Business Report; political columnist; internet lawyer

In July 1964 President Johnson signed the Civil Rights Act of 1964, which NAACP Secretary Roy Wilkins called "the Magna Carta of Human Rights". Four months later President Johnson was reelected in a historic landslide over Arizona Senator Barry Goldwater. This victory was tempered by California's passage of Proposition 14 which not only reversed a state anti-housing discrimination law but also amended the state constitution to protect property owners' "right to discriminate".

Two generations later the celebration of Senator Obama's historic and cathartic victory over another Arizona Republican was clouded by the narrow passage of California's Proposition 8 overturning the State Supreme Court's decision that the right to marry was a "fundamental right" which should not be abridged on account of sexual orientation. As the nation celebrated the dawn of a post-racial age, a mere 14 percent of the state population was able to revive the "right to discriminate".

Prop. 8's apparent passage despite the opposition of Senator Obama, Governor Schwarzenegger and the state's ten leading newspapers is simply an embarrassment for a state that prides itself as a gateway to the future. Prop. 8 also is a poster child for California's flawed initiative process and hopefully will serve as an impetus to correct a process David Broder once called "direct democracy run amok".

The initiative process had a noble birth as it was conceived nearly a century ago by Governor Hiram Johnson as a tool for the voters to break the railroad's hold on Sacramento. According to a 2002 study by the National Conference of State Legislatures (NCSL), however, the process has "evolved . . . into a tool that is too often exploited by special interests." The NCSL study also noted that the initiative process "lacks some of the critical elements of [representative democracy], including deliberation . . . compromise" and checks and balances designed to protect minority interests; a point highlighted by the passage of Prop. 8.

Let Prop. 8 be the impetus by which Californians reestablish some sanity to the initiative process. In over 200 years, this country has enacted only 17 constitutional amendments since the Bill of Rights. Californians voted on 18 amendments to its constitution in 1990 alone. Amazingly, constitutional amendments may be approved in primaries (which get nearly one-third less turnout) by a simple majority. In contrast, Nevada requires that constitutional amendments be approved by the voters twice during the general election. Amending a state's constitution should be harder than electing a dog catcher. Any amendments should be limited to general elections and require either a super-majority of registered voters or approval by both a majority of the voters and a super-majority of the legislature

Limits need to be placed on the number, subject matter and duration of initiatives. California ballots have become so absurdly long that Governor Johnson's tool has become a burden. In 1990 alone, voters considered 43 statewide measures in the primary and fall elections. It is axiomatic that voters cannot make informed decisions on propositions if there are too many for them to read or follow. It is clear that voters are overwhelmed, since nearly 18 percent of those voting in the 2004 general election failed to vote on at least one of the propositions.

There should be a set limit on the number of initiatives on the ballot, with only the first initiatives to qualify or to the initiatives with the most signatures appearing on the ballot. Initiatives also should be limited to the general election which has a larger turnout.

Subject matter limitations should address repeat initiatives, such as this year's abortion parental notification measure, and "ballot box budgeting." In this decade nearly half of all non-bond measures dealt with budget or tax matters. The recent budget crisis highlighted the extent that the state's ability to raise and spend money was predetermined by past initiatives. This experience suggests that California should follow other states that prohibit ballot measures from directing how the state collects or spends it money, or at least require that such measures be revenue neutral. For example, Mississippi requires that initiatives calling for new spending identify the amount and source of revenue required while any tax cut proposal must identify corresponding spending cuts by program.

In addition, nearly eighty percent of Californians believe that only some or few of the measures are understandable to most voters. That is why initiatives should be limited to matters which both affect the public as a whole and are readily understandable to the voters such that they could make a reasonably informed decision based on the official voter guide.

Finally, approved initiatives should not be set in stone and left untouchable by the legislature. Votes on propositions are ad hoc decisions fixed in time and, unlike the legislature, voters do not engage in oversight of measures passed. The legislature should have the ability to save the state from unintended consequences of enacted measures, either by permitting amendment after an initial period of four years (or even earlier with a super-majority) and/or having all propositions expire unless reenacted after six years or some other period.

These measures would go a long way to preserving a worthwhile mechanism that simply has grown out of control. The fact is, however, that these proposals are included in various reform proposals offered by multiple commissions, the Sacramento Bee, the Los Angeles Times, and NCSL and have been debated for over a decade. As Prop. 8 demonstrated all too clearly, however, the time for studies has passed; it is now time for action.