Left Coasting : Plug and play democracy

Californian voters learn to live with constitutional gridlock

by Rosalea Barker

In the photo at left, the pages held together by the pink paper clip are the US Constitution; those held together by the binder clip are California’s as it was when this book was published by the California State Assembly in 2001. In his foreword, the Chief Clerk of the Assembly, Dotson Wilson, explains that the state’s first Constitution, adopted in 1849, was amended only three times in the thirty years before it was replaced by the present one, which “has been amended over 460 times since its adoption. It is one of the most extensive Constitutions in the world.” In the ten years since this November 7, 2000 version of the constitution was published, the number of amendments has risen to more than 500, prompting a movement to call a constitutional convention in 2011.

One of the ways in which the constitution can be amended is by placing on the ballot, propositions that are initiated by the citizens of California. An initiative is defined as “the power of the electors to propose statutes and amendments to the constitution and to adopt or reject them.” In the case of a constitutional amendment, the proposers of the initiative must get signatures equal in number to 8 percent of the votes for all candidates for Governor in the previous gubernatorial election to qualify it for the ballot; for statutes the qualifying signatures must equal 5 percent.

The most famous citizen-initiated constitutional amendment—the effects of which are still a hot political potato today—was passed by 64.8 percent of California voters in June 1978. In California, property taxes are assessed and collected at the county level, and they are used to pay for public safety, infrastructure, schools, county hospitals, recreational facilities—basically everything that makes for a civilized society. At the time of the election, the financial impact was projected as: “Commencing with fiscal year beginning July 1, 1978, would result in annual losses of local government property tax revenues (approximately $7 billion in 1978-79 fiscal year).” In addition, Prop 13 required a 2/3 vote of Legislature to enact any change in state taxes designed to increase revenues.

Proposition 13 reduced individuals’ property taxes by about 57 percent, according to the Howard Jarvis Taxpayers Association’s website. “The Proposition 13 Revolution swept the country and made headlines around the world. It began a change in thinking about the tax burden property owners had to bear. Proposition 13 also started a revolution in the people turning to the initiative process to gain greater control over their lives.”

In 1979, in response to an attempt to adopt the initiative process in Minnesota, the Citizens League of that state put out a position paper urging a No vote on introducing the process. The report traces the history of the initiative and referendum movements from the Granger Movement of the 1860s and 1870s, through the Populist Movement of the mid-1890s, to the Progressive Movement of 1900-1920, which is when the majority of the states that allow initiatives adopted the process—including California in 1911. In 1978, 23 states used some form of the initiative process; 24 states use it today. Minnesota is not one of them.

The key driving force in those three movements was the idea that state legislatures were beholden to commercial interests and the political self-interest of elected officials rather than to the constituents who elected them. But, as the introduction to a 2002 report commissioned by the California Legislature states:

“The days when a grassroots movement or a committed band of reformers could qualify an initiative without major financial support are, for practical purposes, over at the statewide level. Today, many people believe that initiatives are almost exclusively controlled by many of the same economic and political interests that engage in the legislative process. Rather than simply providing a citizen vehicle to enact laws, it has become an alternative method for special interests to advance their causes.”

SCA4 2009—gutting the ballot in exchange for a 2/3 vote on the Budget

A second method that can be used to amend the constitution originates in the Legislature itself. If two-thirds of the membership of both the Assembly and Senate concur, “A proposed amendment or revision shall be submitted to the electors and if approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise.”

Which brings us to the rather odd proposal for a constitutional amendment that will be on the June 2010 primary election ballot—one that may, in effect, ensure that no third party or independent candidate for congressional or state elective office in California will ever be on the ballot in a general election, beginning with the general election in November 2012. Senate Constitutional Amendment No. 4 will go on the ballot as part of the deal Senator Maldonado cut in exchange for his vote enabling the passage of the California budget with a 2/3 majority in February 2009.

In the same way that citizen-initiated ballot measures were seen as a way to protect citizens from the bad effects of the influence of money and political self-interest in the legislative arena, party primaries were originally seen as a way to give voters registered with a particular political party more clout to fight the influence of money and political self-interest within the party structure. The direct primary was first adopted by Wisconsin in 1903 and was applied to state after state in the next fifteen years.

Up until 1996, California had a “closed” primary system—only voters registered with a particular political party could vote that party’s ballot. In the March, 1996 election voters adopted a statute initiative, Prop 198, which changed the closed primary system to what is known as a “blanket” or “open” primary, in which all registered voters may vote for any candidate, regardless of political affiliation and without a declaration of political faith or allegiance. However, all the parties would still be represented on the November general election ballots.

The Democratic Party of California challenged that statute all the way to the US Supreme Court, which held, in June 2000, that Prop 198 was unconstitutional because it violated a political party’s First Amendment right of association. With that proposition now overturned, the California Legislature then passed a bill that made all primaries after January 2001 use a “modified” closed primary system that permits unaffiliated (“decline to state”) voters to participate in a primary election if authorized by an individual party’s rules and duly noticed by the Secretary of State. In the February 2008 presidential primary election, for example, a DTS voter could use a Democratic or American Independent Party ballot, but not a Republican or Green Party one.

What Republican Senator Maldonado now proposes is a return to Proposition 198’s open primary, with one very big difference—only the two candidates who get the most votes in any race will be on the November ballot. The significance of this difference is exemplified in this quote from the California Voter Foundation’s guide to the 1998 primary election, which was the first election to use the Prop 198 form of ballot:

“But the bottom line is, your vote counts now more than it ever did before. So spend it wisely. For example, if you are registered with a minor party, your party’s candidates probably have no competition in the primary election. You know your party’s candidates are going to be on the ballot in November no matter what. So why spend your vote there? You can use your vote in one of the contested primaries in that race instead.”

Of course, Republicans and Democrats and DTS voters also exercised their right to vote for any party’s nominees in whatever way they wished, perhaps skewing the results.

So how does the current proposal get around the unconstitutionality of Prop 198? Well, the measure (available here) prohibits individual parties or party central committees from having a “nominee”, except informally, but they can still actively promote their “anointee”. This Seattle Post Intelligencer report on SCOTUS upholding Washington State’s “Top Two” primary system gives some idea of the legal wrangling involved.

Pass the aspirin, please!

If you’re still reading this far, your head is probably pounding as loudly as mine is as it tries to wrap itself around all these shenanigans—made possible in one way or the other by Howard Jarvis’s 1978 “revolution” in the frequency with which people began using the initiative process to fiddle with statutes and the constitution.

Another Legislature-initiated proposition that will be on the June ballot seeks to amend parts of what Proposition 13 put into the constitution; and yet another seeks to implement public financing for campaigns for Secretary of State. Two “citizen”-initiated measures relate to auto insurance (statute amendment) and public utilities (constitutional amendment). One campaign committee for the latter recently received $3 million from Pacific Gas and Electric, which goes to show just how far we’ve come from the ideal of initiatives enabling grassroots reform against the power of corporate influence.

Referring to the plethora of ballot measures that are currently trying to qualify for the November ballot, and in a masterly understatement, academic Bruce Cain is quoted in this NY Times article as saying: “Lots of people are unhappy, but for so many different and conflicting reasons that it is hard to envision where we will end up. It could be a chaotic jumble.”