California / InitiatIive Reform

Special Election Sheds Light on Flawed Initiative Process

Special Election Sheds Light
on Flawed Initiative Process
November 25, 2005

While the special election voters were clearly unhappy with Governor Schwarzenegger, there was another election day actor with approval ratings even lower than the governor’s — the initiative process itself. The governor can redeem both himself and the initiative process by making initiative reform the first measure submitted for the 2006 ballot. The governor’s proposal should be guided by three principles: (1) voters are not legislators, but legislators are; (2) initiatives should have sufficient support; and (3) voters, like politicians, make mistakes.

Voters are not legislators and it is clear that voters are overwhelmed by the number of ballot measures, as nearly 18 percent of those voting in the 2004 general election failed to vote on at least one of the propositions. There needs to be a cap on the number of initiatives on each ballot since it is axiomatic that voters cannot make informed decisions on propositions if there are too many for them to read or follow.

In addition, nearly 80 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. This second criteria would spare voters from arcane matters and may even limit the trend towards “ballot box budgeting” given the complexities involved.

Teddy Roosevelt explained that the initiative process and representative government are meant to be complimentary not adverse. Initiative proponents should be able to draw on the legislature’s expertise through public hearings on all qualifying measures and should be permitted to incorporate any recommended changes. A summary of the legislature’s recommendations and findings also should be included in the voter guide.

In calling the special election, the governor hoped to take advantage of lower voter turnout for such elections. Initiatives, however, should pass with the appropriate amount of support, regardless of when the election is held.  The governor’s proposal should create a level playing field by requiring the approval of both a majority of the votes cast and a certain percentage of registered voters to ensure that all measures passed have widespread support.  There also should be a higher standard for constitutional amendments since amending the constitution should be harder than electing a dog catcher. Amendments should require at least either a majority of registered voters or approval by a majority of the voters and a super-majority of the legislature.

Finally, voters, like politicians, make mistakes and even change their minds. The initiative process, however, renders ad hoc decisions fixed in time without the checks and balances of representative government that are designed to protect minority interests or any subsequent oversight of measures passed.  Consider Proposition 14, which prohibited state and local governments from restricting housing discrimination and was overwhelmingly approved by California voters only months after Congress passed the Civil Rights Act of 1964. Prop. 14 is one of many voter initiatives eventually found to be unconstitutional, which is why the governor’s proposal should require that the voter guide include an opinion from the Attorney General on the constitutionality of any ballot measure.

Prop. 14 also teaches us that approved initiatives should not be set in stone and rendered untouchable by the legislature. The legislature should have the ability to save the state from bad decisions and the unintended consequences of enacted measures, either by permitting amendment after an initial period of four years (or even earlier with a supra-majority) and/or having all propositions expire unless reenacted after six years or some other period.

These measures would go a long way towards preserving a worthwhile mechanism that simply has grown out of control. Most of these proposals have been discussed in more than 20 major studies since 1990. The time for studies has passed; it is now time for action.