Problems with California’s Initiative Process

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By Chris Micheli

The initiative has been a form of direct democracy for more than a hundred years in the State of California. The initiative is a method of lawmaking that requires a vote of the people instead of a vote of the Legislature in order for a measure to become law. To qualify for a statewide ballot, statutory initiatives must receive signatures of voters equal to 5% of the votes cast for all candidates for Governor at the last gubernatorial election. Constitutional amendment initiatives must receive signatures equal to 8% of the same number of votes.

The Secretary of State has done an analysis of the success rate for initiatives in California. During the past 101 years (1912 through July 2013):

1,767 initiatives were titled and summarized for circulation

Of these, 1,311 (74.1%) failed to qualify, and another 92 were withdrawn from circulation

360 initiatives (20%) qualified for the ballot

Of the 360 that qualified, only 122 were approved by the people.

Historically, therefore, only one in five proposed initiatives has qualified for the ballot, and only one in three of those that qualified have been approved.

Unfortunately, California’s initiative process suffers from a number of problems and consideration should be given to alternatives that would address these problems. Some of the problems that have been identified with the initiative process include:

Language of Initiatives — Some initiatives have drafting problems with ambiguous or contradictory language. Unfortunately, as opposed to legislation, ballot measures are not review by the Legislative Counsel. There is no formal drafting process and no legal review by experts in drafting laws.

Short Time Period — There is a small window of time to obtain the required number of signatures. This results in very high costs of signature gathering as initiative campaigns are forced to hire professional signature-gathering firms that substantially increases the costs.

Lack of Understanding — Very few voters actually read the summaries and ballot arguments, let alone the language of proposed laws appearing on the ballot, As a result, many voters do not know or understand the initiatives and what they are voting for or against. For example, the November 2012 statewide ballot pamphlet was about 150 pages in length.

Majority Vote — Ballot measures that make major law changes, or that commit significant state spending, only require a majority vote of the people.

Cost Prohibitive — The costs of promoting an initiative are prohibitive for most citizens or groups. Whether it involves the costs of qualifying and advertising are so great that only major interest groups have the resources necessary to sponsor and/or effectively oppose initiatives.

The initiative process has largely been taken over by interest groups and the “initiative industrial complex.” As a result, some view the original purpose of the Initiative has been frustrated.

Some of the alternatives for changes that could be considered include:

Legislative Review — Require legislators to consider a proposed ballot measure for one year of a legislative session before the measure can be placed on the statewide ballot.

Voter Review — Require that enacted measures be returned to voters periodically, such as every eight to ten years, for another vote to determine whether the measure should remain in effect.

Higher Vote Threshold — Initiatives that involve new spending must either specify a revenue source or be approved by a supermajority vote of the electorate.

Increased Fees — It costs $2,000 to submit a ballot measure to the Attorney General for title and summary, which permits signatures to be gathered. This amount should be substantially increased.

Legislative Counsel Drafting — Initiatives would be required to be drafted by the Office of the Legislative Counsel before being submitted to the Attorney General for title and summary so that drafting issues are properly addressed.

Chris Micheli is a Principal with the Sacramento governmental relations firm of Aprea & Micheli, Inc. He also serves as an Adjunct Professor at McGeorge School of Law in its Capital Lawyering Program.

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