If California voters always had their way, illegal immigrants wouldn't get public education and health care; the state would have "open" primary elections; landlords could practice racial discrimination; and cable television would be either free or illegal.
All these stances have been approved as ballot initiatives, and all were later struck down by the courts.
That's not to say courts overturn every hot-button measure: Initiatives barring bilingual education, ending affirmative action in state institutions and imposing term limits survived multiple legal challenges. But postelection litigation — such as that now surrounding Proposition 8, the constitutional ban on same-sex marriage — has become a regular part of California's initiative process, leading some to wonder how well that process is designed.
California is among 24 states that permit ballot initiatives, but it's not one of the 11 that restrict or ban measures impacting the state budget, nor one of the 13 requiring that petition signatures qualifying a measure for the ballot be distributed geographically across the state. It also has a relatively short period in which signatures can be gathered, even though it has the largest raw number signature requirement. And California is the only state that doesn't let the Legislature or an initiative's proponent repeal or amend it.
All of this together means California's initiative process is among the most powerful; the most susceptible to deep-pocketed proponents; and the hardest to undo. It's little wonder no state has considered as many ballot initiatives as California in the past few decades — 67 in this decade alone, including this month's — or that so many lead to lawsuits.
Joe Mathews, a New America Foundation senior fellow who blogs about the initiative process in California and elsewhere, said today's process is rooted in the early 20th century progressive tradition, written by "tough guys, outsiders to government" who thought government was fundamentally corrupt and had to be circumvented by the people.
"It's that kind of fighting tradition this thing comes out of. It's not a flexible system "... there's not a lot of room to negotiate, there's room to fight," Mathews said. A bipartisan California Constitution Commission reported in 1996 that the state's initiative process had "multiple problems" — it reduces legislative accountability; reduces existing laws' and programs' flexibility; lacks a way to evaluate initiatives' effects and revise them if they are not accomplishing their intended purpose; offers measures written by citizens' groups with little or no legislative experience without significant pre-election administrative or judicial review; and can have weighty issues decided in low-turnout elections.
Reform didn't happen, but there's still a thirst for it.
The Public Policy Institute of California found in the past few months that six in 10 likely voters in the state say public policy decisions made by voters through ballot initiatives are probably better than those made by the governor and Legislature. Still, almost the same number say there are too many propositions on the state ballot and believe minor or major changes are needed in the initiative process.
"Voters complain the ballot is too full, that initiatives are confusing, that there's too much special interest money," said PPIC president and CEO Mark Baldassare.
And 78 percent of likely voters say they would favor a system to review and revise proposed initiatives before they are voted upon in order to try to avoid legal issues and drafting errors.
"They would really like to have a neater and cleaner process where they're not voting on things that might turn out to be unconstitutional or challenged in the courts for one reason or another, and that's Democrats and Republicans alike," Baldassare said.
Some states already require pre-ballot legal reviews of all initiatives. For example, Florida requires that after proponents have gathered 10 percent of the total number of signatures they need from at least seven of the state's 25 congressional districts, those signatures be submitted for certification and the initiative's language be submitted to the state Supreme Court for a legal review. If the court approves it, proponents gather the rest of the signatures needed to put it on the ballot; if the court finds it is unconstitutional, addresses more than one subject or is invalid for any other reason, it's dead.
The Los Angeles-based Center for Governmental Studies in May published "Democracy by Initiative: Shaping California's Fourth Branch of Government," which made recommendations for fixing California's process.
It suggested a 30-day public comment period should begin the day after the secretary of state determines proponents have reached the raw, not-yet-certified count of signatures needed to qualify a measure for the ballot, and the Legislature should have to hold a public hearing within 20 days of the signatures' certification. The Legislative Analyst's Office should prepare an impartial analysis of the measure far earlier than now required by law, it recommended, and proponents should be allowed to withdraw their initiative from the ballot if the Legislature enacts an acceptable version of their proposal; if a legislative compromise is unobtainable, proponents should be able to place either their original initiative or an amended version of that initiative on the ballot after the 30-day public comment period.
The Legislature should be allowed to amend any initiative after enactment, so long as that's approved by a two-thirds vote of both chambers and is consistent with the measure's original purposes and intent, the CGS. report recommended.
Also, the secretary of state's office should be required to publicize the drafting assistance it and the legislative counsel's offices are legally required to provide during the initiative drafting process; and the petition-circulation period should be lengthened from 150 to 365 days to lessen the reliance on paid signature gatherers; and contributions to ballot measure committees should be limited to $100,000, or $10,000 to candidate-controlled ballot measure committees.
CGS President Bob Stern, who drafted the Political Reform Act of 1974 — enacted by voters as Proposition 9, with some provisions later invalidated by the courts — served on a 30-member nonpartisan commission convened in 2000 by then-Assembly Speaker Bob Hertzberg to suggest initiative process reforms. That commission's suggestions went nowhere, he said. The Legislature has little interest in reforming a process it hates and probably would rather abolish it altogether, but it would never incur the public's wrath by doing so.
"Basically, it'll take an initiative to improve the initiative process, but where do you get the resources to qualify the initiative?" Stern asked. "We're actually talking to people now about the possibility of reforming the process. We'll know better by the middle of the year whether there are groups that want to do something about it."
Proposition 14 (1964): Nullifying a state law against racial discrimination in home sales and renting
Proposition 15 (1964): Banning paid cable television
Proposition 21 (1972): Rolling back school desegregation measures including busing
Proposition 5 (1982): Repealing the state's inheritance and gift taxes
Proposition 68 (1988): Limiting political campaign contributions
Proposition 105 (1988): Requiring a variety of public disclosures from corporations, household cleaner manufacturers, nursing home operates, ballot initiative proponents and others
Proposition 164 (1992): Imposing term limits on California's members of Congress
Proposition 198 (1996): Creating blanket primary elections in which each voter's ballot lists every candidate regardless of party affiliation and lets the voter choose freely among them
Proposition 225 (1998): Instructing California's state and federal lawmakers to support a proposed U.S. constitutional amendment imposing congressional term limits