The death of the California initiative process

Matthew Hoy
By Matthew Hoy on June 26, 2013

The Supreme Court handed down two decisions earlier today on the gay marriage issue. The first struck down the Defense of Marriage Act as being enacted solely because President Bill Clinton, who signed the legislation into law, hates gay people.

The second decision was to sidestep ruling on California's Prop. 8, which stated that marriage in the state was only between one man and one woman, by ruling that Prop. 8 supporters had no standing to appeal a ruling by an outrageously biased judge to the federal courts.

I'll leave it to others to better analyze what this means for gay marriage in the state, but I want to point out my immediate reaction to the ruling (on Twitter) and answer a couple critiques.

Which is exactly what happened with Prop. 8. Gov. Jerry Brown and Attorney General Kamala Harris are pro-gay marriage. They didn't want to defend the votes of 7 million Californians in opposition to their political preferences. (Ironically, the same Supreme Court that ruled that Prop. 8 supporters didn't have standing didn't have any concerns about allowing the House of Representatives attorneys to have standing after President Obama and Attorney General Eric Holder refused to defend DOMA.)

Which prompted Twitter user @azevin to disagree.

I'll give Avi Zevin the first point. In many cases a party with an actual injury should still be able to sue to have a proposition enforced, I'll leave it to California constitutional scholars and lawyers to determine how widely the courts are likely to apply that right. To take an example from recent news, let's say that Gov. Brown comes to his senses and acknowledges tomorrow that the California High Speed Rail project can't be built with the funding, ridership and other promises that were made to California voters when they approved the project.

Do proponents have standing to sue to force the state to go forward?

If the Prop. 8 proponents didn't have standing even though they gathered the signatures, paid for ads, got out the vote to defend their proposition in court, then I suspect that no one does.

The other suggestions Zevin noted don't offer much in the way of relief in this Democrat Party-run state either. While my state representative is a Republican, Republicans in the state couldn't get anything passed to remedy this sort of situation over Democratic opposition.

A proposition runs into the same problem.  Californians pass it. The Democrat governor and legislature don't want to enforce it, proponents don't have standing to sue.

Officially make the prop proponents agents? Why would Gov. Brown and AG Harris want to do that? They want the proponents to lose. If they can slash the tires on their bus and prevent them from ever getting to the courtroom to argue, why make them official and possibly lose?

I suspect that creating a standing position would suffer from a similar issue. How would this position be filled? Appointment by the governor or legislature? The Democrats control both, why not leave it vacant? The voters? And California voters would select someone of the opposite party why exactly?

The initiative process in California was designed by the original progressives around the turn of the 20th Century to offer citizens a way around the corruption of politicians in Sacramento. The Supreme Court today took that power away.

Zevin may be right that the initiative process isn't dead, but what conservative-leaning group would come into the state now to try and pass a politically popular (but not among the Democrat political class) initiative that would cost millions of dollars and lots of effort knowing that it could all be so easily undone in the courts?


And that's why the initiative process is dead.

*UPDATE* Today's sign that the apocalypse is near: Mother Jones magazine political blogger Kevin Drum agrees with me.

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June 2013



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