Cal. Constitution Art. II secs. 1-10, 13-15; Art. XVIII sec 3
ARTICLE 2 VOTING, INITIATIVE AND REFERENDUM, AND RECALL
SECTION 1. All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.
SEC. 2. A United States citizen 18 years of age and resident in this State may vote.
SEC. 2.5. A voter who casts a vote in an election in accordance with the laws of this State shall have that vote counted.
SEC. 3. The Legislature shall define residence and provide for registration and free elections.
SEC. 4. The Legislature shall prohibit improper practices that affect elections and shall provide for the disqualification of electors while mentally incompetent or imprisoned or on parole for the conviction of a felony.
SEC. 5. (a) A voter-nomination primary election shall be conducted to select the candidates for congressional and state elective offices in California. All voters may vote at a voter-nominated primary election for any candidate for congressional and state elective office without regard to the political party preference disclosed by the candidate or the voter, provided that the voter is otherwise qualified to vote for candidates for the office in question. The candidates who are the top two vote-getters at a voter-nominated
primary election for a congressional or state elective office shall, regardless of party preference, compete in the ensuing general election.
(b) Except as otherwise provided by Section 6, a candidate for a congressional or state elective office may have his or her political party preference, or lack of political party preference, indicated upon the ballot for the office in the manner provided by statute. A political party or party central committee shall not nominate a candidate for any congressional or state elective office at the voter-nominated primary. This subdivision shall not be interpreted to prohibit a political party or party central committee from endorsing, supporting, or opposing any candidate for a congressional or state elective office. A political party or party central committee shall not have the right to have its preferred candidate participate in the general election for a voter-nominated office other than a candidate who is one of the two highest vote-getters at the primary election, as provided in subdivision (a).
(c) The Legislature shall provide for partisan elections for presidential candidates, and political party and party central committees, including an open presidential primary whereby the candidates on the ballot are those found by the Secretary of State to be recognized candidates throughout the nation or throughout California for the office of President of the United States, and those whose names are placed on the ballot by petition, but excluding any candidate who has withdrawn by filing an affidavit of noncandidacy.
(d) A political party that participated in a primary election for a partisan office pursuant to subdivision (c) has the right to participate in the general election for that office and shall not be denied the ability to place on the general election ballot the candidate who received, at the primary election, the highest vote among that party’s candidates.
SEC. 6. (a) All judicial, school, county, and city offices, including the Superintendent of Public Instruction, shall be nonpartisan.
(b) A political party or party central committee shall not nominate a candidate for nonpartisan office, and the candidate’s party preference shall not be included on the ballot for the nonpartisan office.
SEC. 7. Voting shall be secret.
SEC. 8. (a) The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.
(b) An initiative measure may be proposed by presenting to the Secretary of State a petition that sets forth the text of the proposed statute or amendment to the Constitution and is certified to have been signed by electors equal in number to 5 percent in the case of a statute, and 8 percent in the case of an amendment to the Constitution, of the votes for all candidates for Governor at the last gubernatorial election.
(c) The Secretary of State shall then submit the measure at the next general election held at least 131 days after it qualifies or at any special statewide election held prior to that general election. The Governor may call a special statewide election for the measure.
(d) An initiative measure embracing more than one subject may not be submitted to the electors or have any effect.
(e) An initiative measure may not include or exclude any political subdivision of the State from the application or effect of its provisions based upon approval or disapproval of the initiative measure, or based upon the casting of a specified percentage of votes in favor of the measure, by the electors of that political subdivision.
(f) An initiative measure may not contain alternative or cumulative provisions wherein one or more of those provisions would become law depending upon the casting of a specified percentage of votes for or against the measure.
SEC. 9. (a) The referendum is the power of the electors to approve or reject statutes or parts of statutes except urgency statutes, statutes calling elections, and statutes providing for tax levies or appropriations for usual current expenses of the State.
(b) A referendum measure may be proposed by presenting to the Secretary of State, within 90 days after the enactment date of the statute, a petition certified to have been signed by electors equal in number to 5 percent of the votes for all candidates for Governor at the last gubernatorial election, asking that the statute or part of it be submitted to the electors. In the case of a statute enacted by a bill passed by the Legislature on or before the date the Legislature adjourns for a joint recess to reconvene in the second calendar year of the biennium of the legislative session, and in the possession of the Governor after that date, the petition may not be presented on or after January 1 next following the enactment date unless a copy of the petition is submitted to the Attorney General pursuant to subdivision (d) of Section 10 of Article II before January 1.
(c) The Secretary of State shall then submit the measure at the next general election held at least 31 days after it qualifies or at a special statewide election held prior to that general election. The Governor may call a special statewide election for the measure.
SEC. 10. (a) An initiative statute or referendum approved by a majority of votes thereon takes effect the day after the election unless the measure provides otherwise. If a referendum petition is filed against a part of a statute the remainder shall not be delayed from going into effect.
(b) If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.
(c) The Legislature may amend or repeal referendum statutes. It may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without their approval.
(d) Prior to circulation of an initiative or referendum petition for signatures, a copy shall be submitted to the Attorney General who shall prepare a title and summary of the measure as provided by law.
(e) The Legislature shall provide the manner in which petitions shall be circulated, presented, and certified, and measures submitted to the electors.
SEC. 11. (a) Initiative and referendum powers may be exercised by the electors of each city or county under procedures that the Legislature shall provide. Except as provided in subdivisions (b) and (c), this section does not affect a city having a charter.
(b) A city or county initiative measure may not include or exclude any part of the city or county from the application or effect of its provisions based upon approval or disapproval of the initiative measure, or based upon the casting of a specified percentage of votes in favor of the measure, by the electors of the city or county or any part thereof.
(c) A city or county initiative measure may not contain alternative or cumulative provisions wherein one or more of those provisions would become law depending upon the casting of a specified percentage of votes for or against the measure.
SEC. 12. No amendment to the Constitution, and no statute proposed to the electors by the Legislature or by initiative, that names any individual to hold any office, or names or identifies any private corporation to perform any function or to have any power or duty, may be submitted to the electors or have any effect.
SEC. 13. Recall is the power of the electors to remove an elective officer.
SEC. 14. (a) Recall of a state officer is initiated by delivering to the Secretary of State a petition alleging reason for recall. Sufficiency of reason is not reviewable. Proponents have 160 days to file signed petitions.
(b) A petition to recall a statewide officer must be signed by electors equal in number to 12 percent of the last vote for the office, with signatures from each of 5 counties equal in number to 1 percent of the last vote for the office in the county. Signatures to recall Senators, members of the Assembly, members of the Board of Equalization, and judges of courts of appeal and trial courts must equal in number 20 percent of the last vote for the office.
(c) The Secretary of State shall maintain a continuous count of the signatures certified to that office.
SEC. 15. (a) An election to determine whether to recall an officer and, if appropriate, to elect a successor shall be called by the Governor and held not less than 60 days nor more than 80 days from the date of certification of sufficient signatures.
(b) A recall election may be conducted within 180 days from the date of certification of sufficient signatures in order that the election may be consolidated with the next regularly scheduled election occurring wholly or partially within the same jurisdiction in which the recall election is held, if the number of voters eligible to vote at that next regularly scheduled election equal at least 50 percent of all the voters eligible to vote at the recall election.
(c) If the majority vote on the question is to recall, the officer is removed and, if there is a candidate, the candidate who receives a plurality is the successor. The officer may not be a candidate, nor shall there be any candidacy for an office filled pursuant to subdivision (d) of Section 16 of Article VI.
ARTICLE 18: AMENDING AND REVISING THE CONSTITUTION
SEC. 1. The Legislature by roll call vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately.
SEC. 2. The Legislature by roll call vote entered in the journal, two-thirds of the membership of each house concurring, may submit at a general election the question whether to call a convention to revise the Constitution. If the majority vote yes on that question, within 6 months the Legislature shall provide for the convention. Delegates to a constitutional convention shall be voters elected from districts as nearly equal in population as may be practicable.
SEC. 3. The electors may amend the Constitution by initiative.
SEC. 4. 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. If provisions of 2 or more measures approved at the same election conflict, those of the measure receiving the highest affirmative vote shall prevail.
The Guarantee Clause
William M. Wiecek, The Guarantee Clause of the U.S. Constitution
Anya J. Stein, “The Guarantee Clause in the States”
Anya J. Stein, “The Guarantee Clause in the States: Structural Protections for Minority Rights and Necessary Limits on the Initiative Power,” 37 Hastings Const. L. Q. 343 (2010)
Introduction
The Guarantee Clause [FN2] protects the republican form of government and provides essential structural protections for individual rights. It promises to protect not only the political structures of representative government, but also the individual rights of citizens–especially politically unpopular minorities. By participating in those representative structures, citizens are afforded constitutional protection from state initiatives that place their rights on the ballot for a majority plebiscite.
The United States Supreme Court has consistently held that the Guarantee Clause is nonjusticiable in the federal courts under the political question doctrine. [FN3] This position has generated substantial criticism from legal scholars who contend that the Guarantee Clause was designed to protect individual rights. [FN4] Even if the Court continues to dismiss cases brought under the Guarantee Clause, however, state courts are also constitutionally obligated to adjudicate these challenges. [FN5] State courts have two affirmative textual grounds for this obligation. First, the Supremacy Clause [FN6] requires state judges to adjudicate federal constitutional challenges to provisions of their own laws and state constitutions. Second, the United States Supreme Court has interpreted the Guarantee Clause itself to obligate the States to provide their citizens with a republican form of government. [FN7] 1
State ballot initiatives are vulnerable to uses that violate the Guarantee Clause’s promise to protect the republican form of government. Recently, California’s divisive Proposition 8 presented the State’s courts with a ballot initiative that placed minority rights on the ballot for a majority vote, and which purported to alter the individual rights of a minority group under the California constitution. [FN8] California courts were obligated to analyze Proposition 8 for its consistency with the protections of the Guarantee Clause. Although the Guarantee Clause’s structural protections serve to reinforce substantive rights protected in the Bill of Rights, judicial review under the Guarantee Clause is an independent inquiry from a determination of whether an initiative like Proposition 8 is otherwise constitutional under the Equal Protection Clause.
I. Defining the Republican Form of Government
Legal scholars have [proposed] considerably different theories regarding what defines the republican form from other democratic systems of government. Some scholars argue that all state initiatives are per se violations of republican government. [FN11] Others argue that the central meaning of republicanism is popular sovereignty, and that direct democracy is therefore perfectly consistent with, although not required by, a republican form of government in which most lawmaking is done by representative decision makers. [FN12] This Note adopts a definition of a republican form of government under the Guarantee Clause as one that requires, at a minimum, a deliberative lawmaking process by elected representatives.
Alexander Hamilton argued that deliberative lawmaking by elected representatives was a virtue that distinguished a republic from a democracy because it better ensured laws would be enacted for the common good. [FN19] Like [James] Madison, Hamilton believed that the procedural mechanism of deliberative lawmaking by elected representatives would ensure more just laws and better public policies. When voters’ long-term interests conflict with their immediate desires or impulses, Hamilton argued, it is the duty of elected representatives, whom the voters have appointed to act as guardians of those interests, to “withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.” [FN20]
The United States Supreme Court’s definition of the republican form of government under the Guarantee Clause has been consistent with these defenses of the republican form. In 1891, the Court in In re Duncan2 endorsed a definition of republicanism under the Guarantee Clause which emphasized the delegation of lawmaking power to elected representatives who legislate for the common good and protect against the impulsivity of majority factions. Chief Justice Fuller wrote for the majority:
By the Constitution, a republican form of government is guarantied [sic] to every State in the Union, and the distinguishing feature of that form is the right of the people to choose their own officers for governmental administration, and pass their own laws in virtue of the legislative power reposed in representative bodies, whose legitimate acts may be said to be those of the people themselves; but, while the people are thus the source of political power, their governments, National and State, have been limited by written constitutions, and they have themselves thereby set bounds to their own power, as against the sudden impulses of mere majorities.
Because initiatives are enacted by direct majority vote, and bypass these republican processes of formal debate and deliberation by elected representatives, the substantive laws enacted by initiative also suffer. State ballot initiatives do not benefit from the Hamiltonian process of “cool and sedate reflection” [FN23] and instead risk basing public policy on the “temporary delusions” [FN24] of a majority faction at the expense of both the long-term common good of the political community and the individual rights of minority voters.
Although this critique of initiative lawmaking as self-interested and shortsighted may apply to many laws enacted by the initiative process, [FN25] not all state initiatives amount to federal constitutional violations. When the initiative process is used to place the individual rights of minorities on the ballot for a popular vote, however, this process not only results in bad public policy but also violates the Guarantee Clause.
B. The Guarantee Clause’s Connection with Individual Rights and Equal Protection
In Plessy v. Ferguson (1896), the majority of the justices rejected constitutional challenges to Louisiana’s state-enforced segregation policy on privately run passenger trains. [FN42] Justice John Harlan wrote a forceful dissent in which he argued that Louisiana’s segregation laws were unconstitutional because they violated the guarantee of a republican form of government in the States. [FN43] He argued that although slavery had been abolished, state-enforced racial segregation remained an unconstitutional scheme because it made a minority group of American citizens legally inferior, and so interfered with the proper functioning of a representative form of government. [FN44] Justice Harlan contended that: “Such a system is inconsistent with the guaranty [sic] given by the constitution to each state of a republican form of government, and may be stricken down by congressional action, or by the courts in the discharge of their solemn duty to maintain the supreme law of the land, anything in the constitution or laws of any state to the contrary notwithstanding. “
State courts should interpret United States Supreme Court cases like Plessy and Baker [v. Carr, 1962] to stand for the connection between the substantive individual rights protected by the Equal Protection Clause, and the equally important structural rights to a republican form of government protected by the Guarantee Clause. The Guarantee Clause provides independent, judicially enforceable structural protections for individual rights which supplement the substantive protections of the Bill of Rights. State courts should not interpret federal political question jurisprudence to relieve them of their own obligation to adjudicate challenges brought under the Guarantee Clause.
B. The Supreme Court of California: In re Pfahler
In re Pfahler (1906)3 presented the Supreme Court of California with a challenge to the validity of the initiative power under the charter of the City of Los Angeles. [FN75] The challenge arose from the petitioner’s arrest and incarceration for violating a municipal ordinance prohibiting the slaughtering of animals within certain geographical limits. [FN76] The petitioner conceded that if the ordinance had been enacted by the city council through the ordinary legislative process — by vote of the city council and approval of the mayor — it would be a valid use of the local police power under the California Constitution. Because the ordinance had been enacted through the initiative process, the petitioner claimed it had never actually been legally enacted and therefore he should be released. [FN77] The Los Angeles charter had been amended in 1903 to allow for local ordinances to be proposed and enacted by initiative, as well as providing for a referenda process, although only the initiative process was challenged in the case. [FN78]
The Supreme Court of California was presented squarely with a Guarantee Clause question: Whether an initiative power purporting to grant the voters of a chartered municipality the authority to enact local laws that the local legislature refuses to approve is a “forbidden departure from the republican form of government guaranteed by the Constitution of the United States.” [FN81] The court first assumed that, despite language to the contrary in Luther v. Borden and other federal cases, the petitioner’s question was judicially cognizable because it was brought in state court. Next, the court turned to the merits, considering it well within its capabilities to determine whether this use of the initiative process was such a “forbidden departure” from the republican form of government so as to violate the Guarantee Clause. The court held that it was not such a departure, but limited its holding to the local context, holding only that the Guarantee Clause “does not prohibit the direct exercise of legislative power by the people of a subdivision of a state in strictly local affairs.”
The In re Pfahler court makes two distinctions in its reasoning that limit the precedential effect of the case. First, the court distinguishes between the uses of the initiative process at the municipal level versus at the state level, and clearly limits its holding on the constitutionality of the initiative power to the local context. Second, the court makes an implicit distinction between the use of the initiative process to enact laws and its use to amend a state constitution.
VI. The Guarantee Clause and the California Constitution’s Revision/Amendment Distinction
The Proposition 8 petitioners’ arguments were raised pursuant to the revision/amendment distinction under the California Constitution, but the principles behind this distinction are equally relevant to a challenge brought under the Guarantee Clause. Although the California Supreme Court ultimately rejected the petitioners’ arguments for a structural interpretation of the revision/amendment distinction and upheld Proposition 8, the Guarantee Clause presented the court with an alternative basis in the Federal Constitution for finding Proposition 8 unconstitutional before it was placed on the ballot.
In California, a revision requires a two-step process: (1) a constitutional convention, or a two-thirds vote by both houses of the legislature; and (2) ratification of the changes by a majority vote of the electorate. [FN131] An amendment, on the other hand, effects a less fundamental change to the constitution, and may be accomplished by a simple majority vote of the electorate through the initiative process. [FN132]
The California Constitution’s distinction between constitutional changes that may be accomplished by amendment and changes that may only be accomplished by revision was explained by the California Supreme Court in 1894: “The very term “constitution” implies an instrument of a permanent and abiding nature, and the provisions contained therein for its revision indicate the will of the people the underlying principles upon which it rests, as well as the substantial entirety of the instrument, shall be of a like permanent and abiding nature. On the other hand, the significance of the term “amendment” implies such an addition or change within the lines of the original instrument as will effect an improvement, or better carry out the purpose for which it was framed. “ [citing Livermore v. Waite, 1894].
The initiative process may be fully consistent with a republican form of government where it is used to pass an amendment which affects all citizens in the state equally. An initiative proposing to amend the state constitution to provide a legal right to physician-assisted suicide, for example, would be consistent with the Guarantee Clause because all state citizens would have to live with the consequences of the policy they chose to enact, and because the majoritarian process could be used to reverse the amendment in the same way that it was enacted. Likewise, under the California Constitution’s revision/amendment distinction, such an initiative should constitute “an addition or change within the lines of the original instrument,” [FN135] should be classified as an amendment, and could be enacted by a majority vote through the initiative process.
On the other hand, an initiative that amends a state constitution to uniquely effect the individual rights of a politically unpopular minority group is inconsistent with a republican form of government. Proposition 8, for example, proposed to amend the California Constitution to deny gay and lesbian couples alone the right to marry while preserving this right for all other couples. In this situation, the use of the initiative process is inconsistent with the structural protections inherent in a republican form of government because it bypasses the deliberative lawmaking process and the structural protections that process provides for the individual rights of minorities. Here, the minority group that is uniquely harmed by the initiative also lacks the ability to use the majoritarian process to reverse the initiative measure. As the petitioners argued under the revision/amendment distinction, this type of initiative should be classified as a revision, because it changes the “underlying principles” [FN136] of the constitution’s protections of individual rights, and may not be enacted by a bare majority of the electorate through the initiative process.
David A. Carrillo & Stephen M. Duvernay, “California Constitutional Law: The Guarantee Clause and California’s Republican Form of Government”
David A. Carrillo , Stephen M. Duvernay, “California Constitutional Law: The Guarantee Clause and California’s Republican Form Of Government,” 62 UCLA L. Rev. Discourse 104 (2014)
ABSTRACT
In the two decades since New York v. United States was decided, commentators have debated what should give rise to a justiciable Guarantee Clause claim. One common argument is that direct democracy inherently conflicts with the requirement, implicit in the Clause, that states provide a republican (representative) form of government. An offshoot of this argument claims that courts should conjure up substantive Guarantee Clause remedies and strike down specific initiatives that infringe individual rights. It is no surprise that California is a frequent target of this criticism.
This Article argues that California’s initiative system, by design and in operation, is aligned with the scope and purpose of the Guarantee Clause, and reinforces rather than undermines the state’s republican form of government. While an initiative can be used to amend the state constitution, laws that fundamentally change the basic governmental plan or framework must pass through the republican strictures of the revision process. Furthermore, the California Supreme Court’s decision in Strauss v. Horton highlights the primary pitfall of stretching the Guarantee Clause beyond its limits to protect individual rights. At its core, the Clause is directed at the structure of state government. Individual rights are better policed and protected by other constitutional guarantees, such as due process and equal protection, that are designed to protect them
Introduction
The Guarantee Clause of the U.S. Constitution provides, in relevant part, that “[t]he United States shall guarantee to every State in this Union a Republican1 Form of Government.”2 The Supreme Court traditionally treated Guarantee Clause claims as nonjusticiable political questions, starting with the Supreme Court’s refusal to get tangled in a mid-19th century skirmish between two factions claiming to be the one true government of Rhode Island.3 Consequently, this constitutional provision lay dormant for much of the nation’s history. This changed two decades ago when, in New York v. United States,4 the Supreme Court reexamined the conclusion that cases under the Guarantee Clause are nonjusticiable and cracked the courthouse door to Guarantee Clause claims.5
Ultimately, New York raised more questions than it answered. The Court did not squarely address the broader issue of justiciability, and the opinion offers only a few limited guideposts for future claims. This much is clear: After New York, some questions raised under the Guarantee Clause may be justiciable under some circumstances. Commentators subsequently seized on the uncertainty of the New York decision as an opportunity to divine the Guarantee Clause’s meaning and suggest what circumstances should give rise to a justiciable claim.6 But while professors and pundits heavily debated these issues over the last twenty years, lower courts provided little intervening guidance on Guarantee Clause claims, and New York remains the Supreme Court’s last word on the subject.7
Though the full scope and import of the Guarantee Clause remains open for interpretation, this Article takes a modest approach. It evaluates whether California’s mechanisms of direct democracy are consistent with the requirement, implicit in the Guarantee Clause, that the state provide a republican form of government. The Article describes how a California court could approach a claim that an initiative violates the Guarantee Clause by viewing the matter from a structural viewpoint. We conclude that, from this structural perspective, a state’s use of direct democracy does not necessarily conflict with the Guarantee Clause. Furthermore, California’s initiative system is consistent with its obligation to provide a republican form of government. We also consider (and reject) the idea that, in its new formative phase, the Guarantee Clause be adapted to protecting individual rights.
Part I of this Article examines the constraints the Guarantee Clause imposes on the structure of state government. Part II examines whether in general institutions of direct democracy comport with those constraints. Part III argues that popular sovereignty in California is congruent with the purpose of the Guarantee Clause, and its structural limits are adequate to preserve the state’s republican form of government against direct democracy’s excesses. Finally, Part IV argues that the structural nature of the Guarantee Clause makes it ill-suited to protecting individual rights from particular uses of the initiative process.
I. The Guarantee Clause’s Structural Framework: State Integrity, Republican Institutions, and State Flexibility
Pinning down the scope and substance of the Guarantee Clause in the absence of clear guidance from the Supreme Court poses a significant challenge. We find persuasive Professor Fred Smith’s recent analysis of the text and purpose of the Guarantee Clause. Thus, we begin by outlining Professor Smith’s useful framework for discussing the provision.8
Smith identifies two key concepts that animate the Clause. First, Article IV, Section 4 is directed in significant part to the protection of “state integrity,” and specifically, to protecting the “existence, stability, and parity” of the states against internal and external threats.9 The Guarantee Clause serves this end by way of the “republican principle” that “affirmatively guarantee[s] that the ultimate power in state governments rest [s] in the hands of the people.”10 Second, this “republican principle” has a structural focus that encompasses popular sovereignty and majority rule within a system of representative *109 government.11 Thus, although the Guarantee Clause imposes constraints on the structure of state government– it “necessarily implies a duty on the part of the States themselves to provide” a republican form of government12–it does not foreclose a state’s ability to experiment within the broad sphere of republicanism.13
The Supreme Court’s decision in New York is in accord. Though brief, the analysis in that case is consistent with this dual focus on structural stability and flexibility. There, after assuming the claim was justiciable, the Court held that the challenged statute did not violate the Guarantee Clause because it did not interfere with the states’ political independence or popular electoral accountability14 and did “not pose any realistic risk of altering the form or the method of functioning of [the state’s] government.”15
Similarly, Professor Smith and the New York decision are consistent with the original American conception the republican form of government. James Madison explained in the Federalist Papers that the motivating concern behind the guarantee was the specter of nonrepublican political institutions (“aristocratic or monarchial innovations”) that could subvert the stability of a state and weaken the Union.16 But he acknowledged that the states would retain authority to define and experiment with the structure of their government so long as they remain republican.17 As Professor Mayton put it, “[T]he Guarantee Clause is more than just a negative, more than a federal veto respecting “aristocratic or monarchial innovations.” As well, the Clause assures a particular flexibility in state government, which is the states’ ““right” to choose and to experiment with various forms of government and “to claim the federal guarantee” for those choices and experiments: Subject only to the condition that these choices and experiments remain within the zone of popular sovereignty. It is by this assurance of the states’ right to choose and to “claim the federal guarantee” for their choices, that the Guarantee Clause stands as a considerable part of federalism.18
California took advantage of the opportunity to experiment with its own unique version of a republican state government, in which the electorate exercises significant power through institutions of direct democracy. Part II examines how California’s institutions of direct democracy square with the Guarantee Clause.
II. Direct Democracy and the Guarantee Clause
The Supreme Court has not addressed the merits of whether direct democracy institutions are within the flexibility furnished to the states under the Guarantee Clause. When the question reached the Court, predictably it held the case was nonjusticiable.19 But the Court has recognized that “a State is afforded wide leeway when experimenting with the appropriate allocation of state legislative power.”20 And California cases dating back over a century confirm that direct democracy is complementary to the state’s republican form of government.21 Indeed, the California Supreme Court has emphasized that “notwithstanding our continuing representative and republican form of government, the initiative process itself adds an important element of direct, active, democratic contribution by the people.”22
This is consistent with the experience of other states evaluating their own institutions of direct democracy. For example, the Washington Supreme Court observed that “[n]o court in this or any other jurisdiction has invalidated any law on the ground that its passage by initiative violated the Guarantee Clause.”23 After noting that the weight of authority supported the conclusion that Guarantee Clause challenges to initiatives were not justiciable, the court rejected such a challenge as frivolous because even “[t]hose courts which have treated the issue as justiciable have uniformly rejected the contention that use of the initiative process is inconsistent with the ‘republican form of government’ guaranteed by U.S. Const. art. IV, § 4.”24 Those decisions are effectively the last word on the subject, as we have found no subsequent serious challenge to direct democracy institutions in federal courts or state courts of last resort.25
Despite the ready acceptance of direct democracy by those courts, scholars continue to squabble over whether direct democracy is antirepublican.26 In light of the apparent lack of interest in this issue by the Supreme Court, and the absence of any real judicial support for ending direct democracy institutions, for practical purposes, this remains a schoolyard debate. And so it is unrealistic to forecast that either the United States or California Supreme Court would rely on the Guarantee Clause to dismantle the state’s initiative system, particularly given both courts’ reticence to rely on that clause for far more modest purposes.27 Therefore, it is unlikely that the near future will see a high court decision (state or federal) holding that the mere inclusion of direct democracy features in a state constitution violates the Guarantee Clause. But acknowledging the practical reality does not end the discussion. We still must consider, from a doctrinal standpoint, why this is the right answer. In other words, it is well enough that courts are unwilling to dismantle direct democracy institutions on Guarantee Clause grounds–in the next part we will explore a supporting rationale.
III. California’s Structural Constitutional Protections Are Adequate Safeguards for the State’s Republican Government Against Direct Democracy
We rejected in the previous Part the concept that all direct democracy features in a state constitution necessarily violate the Guarantee Clause. The question remains, however, whether particular initiatives can violate the Guarantee Clause. Certainly, a law that fundamentally alters “the form or the method of functioning”28 of a state’s republican institutions may run afoul of the Clause. But California’s initiative process cannot achieve that degree of change. As discussed below, the California Constitution contains structural safeguards that ensure the initiative process cannot fundamentally change the structure or framework of the state government. California’s primary safeguard29 is the restriction on the ability to revise the California Constitution. The California Constitution provides that “[t]he legislative power of this State is vested in the California Legislature … but the people reserve to themselves the powers of initiative and referendum.”30 It further explains that “[t]he initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.”31 The initiative power can be used to amend, but not revise, the California Constitution.32 This binary scheme categorizes an initiative measure as either a revision or an amendment. Revisions are laws that “fundamental[ly] change … the basic governmental plan or framework” set forth in the California Constitution.33 An amendment is any law that effects a more modest addition or change to the state’s constitution.34 The state constitution imposes a much higher procedural barrier to enacting revisions than it does for amendments,35 while judicial doctrine prevents accomplishing structural changes through the procedurally more expedient amendment route. These procedural and substantive limitations impose a critical check on the initiative power–one that to an extent parallels the Guarantee Clause’s focus on governmental structure.
The California Supreme Court’s decisions reinforce the view that the state’s initiative process is consistent with the Guarantee Clause. For example, in Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization, the Court rejected a challenge that an initiative (Proposition 13, Cal. Const., art. XIII A) was invalid because it constituted a revision rather than an amendment.36 In rejecting the challenge, the Court cited the initiative system itself as evidence that reliance on direct democratic processes does not render the state’s government antirepublican:
[W]e are convinced that article XIII A … does not change our basic governmental plan. Following the adoption of article XIII A both local and state government will continue to function through the traditional system of elected representation …. It should be borne in mind that notwithstanding our continuing representative and republican form of government, the initiative process itself adds an important element of direct, active, democratic contribution by the people.37
Since New York, commentators have also suggested that California’s structural limitation on the state’s initiative process and the Guarantee Clause have similar effects:
[The] amendment revision distinction [sic] may be analogous to the Guarantee Clause. Initiatives which restructure California government in an anti-republican manner may constitute revisions of the constitution, hence beyond the initiative power. California courts have the power to enforce this constitutional limitation, having done so on several occasions.38
The comparison between the Guarantee Clause and the California Constitution, however, has limits. Being consistent with the Guarantee Clause is different from being its analogue. While the Guarantee Clause is directed at securing and preserving a republican form of government, the California Constitution does not place any substantive limits on the revision power, which could, in theory, be used to accomplish antirepublican ends. Preservation of republican virtue is not the object of California’s restrictions on initiative amendments, nor is it a necessary result of enforcing the restriction. The virtue protected is preserving the integrity of the state government from a certain degree of change without a duly deliberative process.
Consequently, it is important to emphasize a key distinction between the Guarantee Clause and the amendment/revision dichotomy under California law. While the Guarantee Clause is directed at securing and preserving a republican form of government, the California Constitution does not proscribe the ability to revise the constitution in an antirepublican manner. This means a revision establishing a California monarchy could be procedurally proper under the state constitution but unconstitutional under Article IV.
Those theoretical distinctions aside, one practical point is quite clear: Key to the effectiveness of California’s structural constitutional protections for the state’s republican form of government is the willingness of the California Supreme Court to enforce the constitutional requirements for revisions against creative direct democracy efforts. The California Supreme Court most recently and comprehensively addressed the revision/amendment issue in Strauss v. Horton.39 That decision demonstrates the state high court’s commitment to the view that the revision/amendment distinction exists to police attempts at restructuring the state government rather than efforts to redefine individual rights.
In Strauss, opponents of Proposition 8 challenged the validity of that initiative, arguing that it constituted a revision that could not be adopted through the initiative process. After extensive analysis of the relevant precedent, the Court summed up what makes a constitutional revision: “[T]he numerous past decisions of this court that have addressed this issue all have indicated that the type of measure that may constitute a revision of the California Constitution is one that makes “far reaching changes in the nature of our basic governmental plan” or, stated in *117 slightly different terms, that “substantially alter[s] the basic governmental framework set forth in our Constitution.”40
From there, the Court concluded that the measure was a constitutional amendment that could properly be adopted by initiative because “Proposition 8 works no such fundamental change in the basic governmental plan or framework established by the preexisting provisions of the California Constitution–that is, ‘in [the government’s] fundamental structure or the foundational powers of its branches.”’41
A few points from Strauss underscore how the Court’s interpretation and enforcement of the amendment/revision distinction closely track the purpose of the federal Guarantee Clause.
1. State Integrity. The analysis in Strauss demonstrates how the design of the California Constitution promotes state integrity, just as the Guarantee Clause does: California already has a republican form of government, and the restrictions on revisions act to preserve that status quo. The California Supreme Court’s treatment of the amendment/revision issue in that case is an application of the overarching principle that the procedural and substantive constraints preserve the state’s fundamental governmental framework by requiring significantly more process to revise the constitution than is needed to amend it by initiative. The Court’s fidelity to the strictures imposed on the initiative process and its defense of the constitutional structure writ large are consistent with the concept of state integrity that animates the Guarantee Clause.42
2. Popular Sovereignty and the Principle of Majority Rule. Another prevailing theme in Strauss is reliance on the popular sovereignty principle encoded in the state constitution that “[a]ll political power is inherent in the people” and that the people may “alter or reform their government.”43 This is the essence of popular sovereignty. To that end, Californians have devised a system in which the constitution may be amended by initiative on a majority vote. In the words of Justice Kennard, “[w]hen the voters have validly exercised this power, as they did here, a judge must enforce the Constitution as amended.”44
This may seem, at first, to be counterintuitive: How is popular sovereignty, as expressed through the initiative, consistent with republican government? After all, doctrinaire republican government theory holds that although the people have a right to form and to participate in government (which they exercise by choosing their representatives), once that choice is made the previously diffuse participatory right of the people is vested in the representative alone and nothing remains of the people’s right.45
But the right to ordain, alter, and abolish a constitution is central to republican government.46 If that is true to some degree for a limited government of enumerated powers like the federal government, then it must be even more so for a plenary state government. While the delegation and social contract theories of the federal constitution, and its lack of direct democracy tools, suggest that going forward the people have delegated all their power to the representative government so created,47 California better embodies the “consent of the governed” theory, as the people and the electorate exercise powers on an ongoing basis.48 If popular sovereignty, majority rule, and reformative powers are all supports for a republican government, then the fact that those powers exist in greater measure in California’s government (compared with the federal government) should provide greater security for a republican form of state government.
3. The Revision Process is an Overriding, Fundamentally Republican Check. The revision process provides an independent level of republican protection. A measure that alters California’s “basic governmental plan or framework” cannot be passed by initiative. Therefore, such a law would be subject to the republican restriction of the revision process, namely, proposal by a two-thirds majority of the Legislature or through constitutional convention, followed by popular ratification in a statewide election.49 This ensures that any law that could implicate the Guarantee Clause necessarily would be channeled through the revision process, where it would be vetted either by the Legislature or in convention, and then approved by the people, before it takes effect. These more-burdensome procedural requirements ensure that potential revisions benefit from greater involvement from the elected representatives or the electorate (or both), and the higher bar imposed by the deliberative process makes revisions simultaneously less likely to occur and more likely to be well-considered when they do.50 This system strongly favors the status quo, viz., a representative republic with significant direct democracy institutions, over truly radical changes.51 From any of those perspectives, then, the revision’s procedural requirements operate to preserve a republican form of government in California.
* * *
In sum, the California Supreme Court’s interpretation and enforcement of the distinction between amendments to, and revisions of, the state constitution are aligned with the scope and purpose of the Guarantee Clause and are consistent with maintaining California’s extant republican form of government. Next, we consider the idea that, despite its structural nature, the Guarantee Clause can be pressed into service as a protector of individual rights.
IV. Direct Democracy, the Guarantee Clause, and Individual Rights
As discussed above,52 revision issues under the California Constitution, like the Guarantee Clause, concern the form of government. The Strauss court correctly focused on that principle.53 Thus, revision issues under the California Constitution are analytically and doctrinally distinct from equal protection issues under the U.S. Constitution. The Strauss decision therefore correctly focused on whether the structure of California’s government was affected by Proposition 8 and not “whether the provision at issue is wise or sound as a matter of policy or whether we, as individuals, believe it should be a part of the California Constitution.”54 Nevertheless, the Strauss court considered arguments about the initiative’s effect on individual rights and the decision invites discussion of a common claim made by opponents of direct democracy: The Guarantee Clause should be used to police against majoritarian excesses and strike down exercises of direct democracy that infringe individual constitutional rights, particularly rights that protect minority groups.55
It is not difficult to read Strauss and be sympathetic to this line of thinking. The Court’s treatment of the issue of individual rights in Strauss is instructive. In response to the argument that Proposition 8 constituted a revision because it “‘eliminat[ed]’ or ‘stripp[ed]’ same-sex couples of a fundamental constitutional right,” the Court found that Proposition 8 had only a “limited effect” on the privacy, due process, and equal protection rights of same-sex couples, and that it left the core substantive constitutional rights recognized in the Marriage Cases intact.56 In reaching this conclusion, the Court reiterated that measures that discriminate on the basis of sexual orientation generally are subject to strict scrutiny under the state’s equal protection guarantee.57 Importantly, the Court left open the question of “whether a measure that actually deprives a minority group of the entire protection of a fundamental constitutional right or, even more sweepingly, leaves such a group vulnerable to public or private discrimination in all areas without legal recourse, would constitute a constitutional revision under the provisions of the California Constitution.”58
Even assuming one agrees with this description of equal protection, it remains an equal protection issue–one not capable of resolution under the Guarantee Clause. Even if an initiative threatening widespread and substantial infringement of minority rights could constitute a revision, it almost certainly would violate other fundamental constitutional rights. Under either approach, the structural issue would be secondary to the discriminatory abridgment of individual rights. Accordingly, it would be unnecessary in such a case to reach the difficult questions of whether the measure is a revision or whether the Guarantee Clause is violated, because the case would be more amenable to resolution on other grounds.
This highlights the primary pitfall of adapting the Guarantee Clause to protect individual rights. At its core, the Guarantee Clause is directed at the structure of state government and is not a backstop to secure individual rights. There is no need to stretch the Guarantee Clause beyond its limits to protect individual rights that are specifically protected by other constitutional provisions.59 A litigant claiming that an initiative destroys or infringes her rights already has several tools at her disposal: she could bring a due process or equal protection challenge, assert a takings claim, or even rely on the Privileges or Immunities Clause60–to say nothing of California’s independent constitutional guarantees.61 Those protections are directed at precisely the sort of evils that proponents of the individual rights theory fear will result if the initiative process runs amok.62 Finally, not only is the Guarantee Clause unnecessary to enforce individual rights, but conjuring up substantive Guarantee Clause rights to strike down an initiative is inapt–it would be akin to raising a Third Amendment challenge to a warrantless search of your house.63
There is little doctrinal basis, and little practical reason, to shoehorn an individual rights defense theory into the Guarantee Clause. That clause serves its intended purpose as a structural provision, and the many provisions expressly aimed at protecting individual liberty already serve their purpose. True, for every wrong there is a remedy.64 But use the right tool for the job.
Conclusion
The Guarantee Clause secures to each state a republican governmental structure. Within those bounds the people retain the ultimate authority to define the framework and substance of their state government. Within those bounds the people retain the ultimate authority to define the framework and substance of their state government. California’s system of direct democracy is both the product and embodiment of the people’s power. And yet the state’s direct democracy institutions are designed to insulate California’s form of government from fundamental change by popular whim and to ensure that such a change is vetted through republican processes. Although it may sound like a difficult balance to strike, the decision in Strauss confirms that the existing structural constitutional protections serve that end.
Furthermore, simply because the Guarantee Clause remains largely undefined does not transform the provision into a constitutional safeguard-of-last-resort for enforcing individual rights, and the U.S. Supreme Court’s silence cannot support expanding the provision so far beyond its core protection of governmental structure. The courts remain free to enforce fundamental individual rights under the constitutional provisions designed to secure them. After all, we have made it this far without using the Guarantee Clause for such an expansive purpose, and the Republic still stands.
Overlooked in this debate are the roles of the people, the political process, and the operation of the very republican government secured by the Constitution. California’s voters elect their representatives. The state’s citizens are at liberty to petition, lobby, cajole, and protest to effectuate change. Voters can recall politicians, run for office, invalidate legislative statutes, and enact their own initiative statutes and constitutional amendments. These ordinary acts of participatory democracy are the keystone of our political system, the expression of the republican principle that animates the Guarantee Clause. It is the people who bear ultimate responsibility for their government, good, bad, or ugly.
Direct democracy: the initiative and referendum
David B. Magleby, Direct Legislation: Voting on Ballot Propositions in the United States
American Federation of Labor v. Eu (1984), 36 Cal.3d 687
AFL-CIO v. Eu (1984), 36 Cal.3d 687, 686 P.2d 609, 206 Cal.Rptr. 89
[From the Summary of the Court’s opinion: “SUMMARY. On an original petition for writ of mandate, the Supreme Court directed issuance of a writ commanding the Secretary of State not to take any action, including the expenditure of public funds, to place a proposed Balanced Federal Budget Statutory Initiative on the November 6, 1984, General Election ballot. The initiative contained a resolution calling on Congress to submit a balanced budget amendment and applied to Congress for a constitutional convention to propose such an amendment, mandated the Legislature to adopt the resolution and provided sanctions for its failure to do so, and further provided for adoption of the resolution by the people with directions to the Secretary of State to transmit it to Congress if the Legislature failed to adopt it within 40 legislative days.”]
Broussard, J.
On March 18, 1984, respondent Secretary of State certified that the proposed initiative had received sufficient signatures to appear on the November 1984 ballot. Petitioners, organizations and individual California taxpayers opposed to the initiative,7 filed an original action in this court for writ of mandamus. We scheduled a special calendar to consider the matter before the ballots were printed for the forthcoming election.
We have concluded that the initiative, to the extent that it applies for a constitutional convention or requires the Legislature to do so, does not conform to article V of the United States Constitution. Article V provides for applications by the “Legislatures of two-thirds of the several States,” not by the people through the initiative; it envisions legislators free to vote their best judgment, responsible to their constituents through the electoral process, not puppet legislators coerced or compelled by loss of salary or otherwise to vote in favor of a proposal they may believe unwise.
We also conclude that the measure exceeds the scope of the initiative power under the controlling provisions of the California constitution (art. II, § 8 and art. IV, § 1). The initiative power is the power to adopt “statutes”8 – to enact laws – but the crucial provisions of the balanced budget initiative do not adopt a statute or enact a law. They adopt, and mandate the Legislature to adopt, a resolution which does not change California law and constitutes only one step in a process which might eventually amend the federal Constitution. Such a resolution is not an exercise of legislative power reserved to the people under the California Constitution.
In recent years a number of persons, including the current President, have urged the enactment of a constitutional amendment requiring a balanced federal budget. Numerous bills have been introduced in Congress. Although the Senate on one occasion approved a proposed constitutional amendment by the necessary two-thirds vote, the measure failed in the House of Representatives; thus the proposed amendment has never been submitted to the states for ratification.
In the meantime, proponents of the amendment attempted to avoid the necessity for congressional approval by resorting to the alternative method of proposing constitutional amendments – a convention called upon application of two-thirds of the states. As of this writing the legislatures in 32 of the necessary 34 states have formally applied to the Congress to call such a convention.5
Following this strategy, proponents have regularly introduced resolutions in the California Legislature calling for a convention to propose a balanced budget amendment. The Legislature has held hearings on some of these measures, but it has declined to adopt any resolution calling for a federal constitutional convention. The supporters of the balanced budget amendment now seek to compel action by the California Legislature by popular initiative.
II. Issues Arising Under Article V of the United States Constitution
Our discussion of the federal constitutional issues proceeds in three steps. First, we inquire whether the term “Legislatures” as used in article V refers to the representative body elected to enact the laws of the state – in California, the state Senate and Assembly – or to the whole of the state legislative power, including the reserved power of initiative. Our conclusion that it refers only to the representative body makes it clear that the people cannot by initiative apply directly to Congress for a constitutional convention. We then turn to two remaining questions: whether the people by initiative can (a) compel the Legislature to apply to Congress for a constitutional convention or (b) urge Congress to submit a proposed amendment to the states.
We conclude that when article V refers to an application by the “Legislatures” of two-thirds of the states, calling for a constitutional convention, it refers to the representative lawmaking bodies in those states. Any application directly by the people, through their reserved legislative power, would not conform to article V.
The drafters wanted the amending process in the hands of a body with the power to deliberate upon a proposed amendment and, after considering not only the views of the people but the merits of the proposition, to render a considered judgment. A rubber stamp legislature could not fulfill its function under article V of the Constitution.
We conclude that a state may not, by initiative or otherwise, compel its legislators to apply for a constitutional convention, or to refrain from such action. Under article V, the legislators must be free to vote their own considered judgment, being responsible to their constituents through the electoral process. The proposed Balanced Budget Initiative, to the extent that it mandates the California Legislature to apply to Congress for a constitutional convention, violates article V of the United States Constitution.
III. Issues Arising Under the California Constitution
The Balanced Budget Initiative contains three substantive sections. At the core of the initiative is the resolution set out in section 1, which calls upon Congress to submit a balanced budget amendment, and applies to Congress for a constitutional convention to propose such an amendment. Section 1 then mandates the Legislature to adopt this resolution. Section 2 provides that if the Legislature does not comply within 20 legislative days, the legislators’ compensation is suspended. Section 3 provides for adoption of the resolution by the people, and directs the Secretary of State to transmit it to Congress if the Legislature fails to adopt it within 40 legislative days.
Article IV, section 1 of the California Constitution declares that “[t]he legislative power of this State is vested in the California Legislature which consists of the Senate and Assembly, but the people reserve to themselves the powers of initiative and referendum.” Article II, section 8, subdivision (a) defines the initiative: “The initiative is the power of the electors to propose statutes and amendments to the Constitution and to adopt or reject them.” (Italics added.)17 Article II, section 9 defines the referendum in similar terms; it is “the power of the electors to approve or reject statutes.”
The question we face is whether the Balanced Budget Initiative proposes to adopt a “statute” within the meaning of article II of the California Constitution. (7) In resolving this question, we must bear in mind the declared “duty of the courts to jealously guard” the people’s right of initiative and referendum. (Martin v. Smith (1959) 176 Cal.App.2d 115, 117 [1 Cal.Rptr. 307]; Associated Home Builders, Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591 [135 Cal.Rptr. 41, 557 P.2d 473, 92 A.L.R.3d 1038].) “[I]t has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled.” Even under the most liberal interpretation, however, the reserved powers of initiative and referendum do not encompass all possible actions of a legislative body. Those powers are limited, under article II, to the adoption or rejection of “statutes.” As we shall explain, it does not include a resolution which merely expresses the wishes of the enacting body, whether that expression is purely precatory or serves as one step in a process which may lead to a federal constitutional amendment.
As of the 1920’s, the majority view was that under constitutional provisions such as that in California, the reserved power of initiative and referendum was limited to such measures as constituted the exercise of legislative power to create binding law – the kind of measure that would be introduced by bill, duly passed by both houses of the legislature, and presented to the governor for signature. That reserved power did not extend to the ratification of constitutional amendments, since a state in ratifying an amendment was not asserting legislative power under its own constitution, *712 but exercising a power delegated to the state legislatures by article V of the federal Constitution
Neither did that power extend to resolutions which merely declared policy or entreated action, since such enactments did not constitute the exercise of legislative power to create statutory law. the function of the initiative under the California Constitution is to enact (or repeal) statutes. The statute may declare policy as well as provide for its implementation. Indeed it is common for statutes, including initiative statutes, to contain a section which declares policy and provides a guide to the implementation of the substantive provisions of the measure.24 But an initiative which seeks to do something other than enact a statute – which seeks to render an administrative decision, adjudicate a dispute, or declare by resolution the views of the resolving body – is not within the initiative power reserved by the people.
We therefore conclude that the Balanced Budget Initiative is invalid as a whole because it fails to adopt a statute, and thus does not fall within the reserved initiative power as set out in article II of the California Constitution. We acknowledge the arguments of the proponents that there may be value to permitting the people by direct vote not only to adopt statutes, but also to adopt resolutions, declare policy, and make known their views upon matters of statewide, national, or even international concern. Such initiatives, while not having the force of law, could nevertheless guide the lawmakers in future decisions. Indeed it may well be that the declaration of broad statements of policy is a more suitable use for the initiative than the enactment of detailed and technical statutes. Under the terms of the California Constitution, however, the initiative does not serve those hortatory objectives; it functions instead as a reserved legislative power, a method of enacting statutory law. The present initiative does not conform to that model.
Let a peremptory writ of mandate issue commanding respondents not to take any action, including the expenditure of public funds, to place the proposed Balanced Budget Initiative on the November 6, 1984, General Election ballot. We reserve jurisdiction for the purpose of considering petitioners’ request for an award of attorney’s fees.
Bird, C. J., Mosk, J., Reynoso, J., and Grodin, J., concurred.
Costa v. Superior Court (2006), 37 Cal.4th 986
GEORGE, C.J.
This case arises from a legal challenge to Proposition 77, an initiative measure that was submitted to California voters at the November 8, 2005, special statewide election. The underlying challenge to the measure was brought after circulation of the initiative petition was completed but prior to the Secretary of State’s submission 2 of the ballot pamphlet materials to the State Printer, and sought to have the measure withheld from the ballot because of several differences between the version of the measure that was submitted to the Attorney General prior to the circulation of the initiative petition, and the version printed on the petition that subsequently was circulated for signature.
We turn first to the question whether the type of challenge to an initiative measure raised in this case — namely, a claim that an initiative measure should not be placed on the ballot because the version of the measure submitted to the Attorney General differs from the version circulated for signature — appropriately is subject to preelection judicial review or instead ordinarily should be considered by a court only after the measure has been submitted to the voters and the election has been held.
Past California decisions have observed that, as a general rule, “it is usually more appropriate to review constitutional and other challenges to ballot propositions or initiative measures after an election rather than to disrupt the electoral process by preventing the exercise of the people’s franchise, in the absence of some clear showing of invalidity.” More recently, however, we noted that decisions after Brosnahan I “have explained that this general rule applies primarily when a challenge rests upon the alleged unconstitutionality of the substance of the proposed initiative, and that the rule does not preclude preelection review when the challenge is based upon a claim, for example, that the proposed measure may not properly be submitted to the voters because the measure is not legislative in character or because it amounts to a constitutional revision rather than an amendment. We held that a constitutional challenge that rests upon a claim that a proposed initiative measure violates the single-subject rule may, in an appropriate case, be considered and resolved prior to the election, emphasizing that the constitutional provision establishing the single-subject limitation by its explicit terms contemplates the possibility and propriety of preelection review in providing that “an initiative measure embracing more than one subject may not be submitted to the electors or have any effect.”
The legal challenge in the present case does not relate to the substantive validity of the initiative measure but rather involves a procedural claim pertaining to the preelection petition-circulation process. Past cases establish that, at least as a general matter, this type of procedural challenge — that is, a challenge based upon 2 an allegation that a proposed initiative measure has failed to comply with the essential procedural requirements necessary to qualify an initiative measure for the ballot (for example, an initiative petition’s alleged failure to have obtained the requisite number of qualified signatures)—may be brought and resolved prior to an election. (See, e.g., Assembly v. Deukmejian (1982) [preelection decision considering the effect of a variety of alleged defects in referendum petition, including claim that text of measure printed in petition varied from text of the enacted measure that was the subject of the referendum]; Epperson v. Jordan (1938) [preelection decision considering challenge to initiative measure contesting the completeness and accuracy of the Attorney General’s summary of the measure set forth in the circulated petition]; Clark v. Jordan (1936) [preelection decision sustaining challenge to proposed initiative measure on ground that “short title” set forth in circulated petitions violated statutory requirement that such title accurately describe the subject to which the petition relates, and finding it unnecessary to decide additional claim that petition was not supported by the required number of signatures]; Boyd v. Jordan (1934) [preelection decision sustaining challenge to proposed initiative based on misleading short title].) As these and similar cases implicitly recognize, because the question at issue in such a case is whether the initiative measure has satisfied the constitutional or statutory procedural prerequisites necessary to qualify it for the ballot, it is logical and appropriate for a court to consider such a claim prior to the election, because if the threshold procedural prerequisites have not been satisfied the measure is not entitled to be submitted to the voters. Unlike a challenge to the substantive validity of a proposed measure, it cannot properly be suggested that it would be premature to consider such a claim prior to the election, because the focus of the issue is solely upon whether the measure has qualified for the ballot, and not upon the validity or invalidity of the measure were it to be approved by the voters.
Furthermore, once a measure has been placed on the ballot and has been voted upon by the electorate, California decisions have been most reluctant to overturn the results of an election on the basis of a procedural defect that has occurred at the petition-circulation stage of the process, inasmuch as such a defect ordinarily will have no effect on the material that is before the voters or on the fairness or accuracy of the election result. The postelection context is significantly different from a preballot-qualification setting. An election is a completed act, a fait accompli. In contrast, the circulation and qualification of referendum petitions are part of an ongoing process that portends, at most, the potential of an election. In light of this well-established remedial limitation regarding postelection challenges, it cannot be said that there is no harm in postponing until after the election a determination of the validity of this type of procedural challenge to the petition-circulation process, because after the election the procedural claim may well be considered moot. Accordingly, we conclude that the trial court and the Court of Appeal did not err in entertaining the procedural challenge in this case prior to the election.
Of course, the circumstance that a challenge involves the type of claim that properly may be considered by a court prior to the election does not establish that the claim in question is valid or that it justifies withholding the challenged measure from the ballot. Particularly when a preelection challenge is brought against an initiative measure that has been signed by the requisite number of voters to qualify it for the ballot, the important state interest in protecting the fundamental right of the people to propose statutory or constitutional changes through the initiative process requires that a court exercise considerable caution before intervening to remove or withhold the measure from an imminent election. Only when a court is confident that the challenge is meritorious and justifies withholding the measure from the ballot, should a court take the dramatic step of ordering the removal of a measure that ostensibly has obtained a sufficient number of qualified signatures.
Perry v. Brown (2011), 52 Cal.4th 1116
Perry v. Brown (2011), 52 Cal.4th 1116, 265 P.3d 1002
CANTIL–SAKAUYE, C.J.
At the request of the United States Court of Appeals for the Ninth Circuit, we agreed to decide a question of California law that is relevant to the underlying lawsuit in this matter now pending in that federal appellate court. As posed by the Ninth Circuit, the question to be decided is “whether under article II, section 8 of the California Constitution, or otherwise under California law, the official proponents of an initiative measure possess either a particularized interest in the initiative’s validity or the authority to assert the State’s interest in the initiative’s validity, which would enable them to defend the constitutionality of the initiative upon its adoption or appeal a judgment invalidating the initiative, when the public officials charged with that duty refuse to do so.”
In addressing this issue, we emphasize at the outset that although in this case the question posed by the Ninth Circuit happens to arise in litigation challenging the validity, under the United States Constitution, of the initiative measure (Proposition 8) that added a section to the California Constitution providing that “only marriage between a man and a woman is valid or recognized in California”, the state law issue that has been submitted to this court is totally unrelated to the substantive question of the constitutional validity of Proposition 8. Instead, the question before us involves a fundamental procedural issue that may arise with respect to any initiative measure, without regard to its subject matter. The same procedural issue regarding an official initiative proponent’s standing to appear as a party in a judicial proceeding to defend the validity of a voter-approved initiative or to appeal a judgment invalidating it when the public officials who ordinarily provide such a defense or file such an appeal decline to do so, could arise with regard to an initiative measure that, for example, (1) limited campaign contributions that may be collected by elected legislative or executive officials, or (2) imposed term limits for legislative and executive *1125 offices, or (3) prohibited government officials from accepting employment after leaving office with companies or individuals that have benefited from the officials’ discretionary governmental decisions while in office. The resolution of this procedural question does not turn on the substance of the particular initiative measure at issue, but rather on the purpose and integrity of the initiative process itself.
In the past official proponents of initiative measures in California have uniformly been permitted to participate as parties — either as interveners or as real parties in interest — in numerous lawsuits in California courts challenging the validity of the initiative measure the proponents sponsored. Such participation has routinely been permitted (1) without any inquiry into or showing that the proponents’ own property, liberty, or other personal legally protected interests would be specially affected by invalidation of the measure, and (2) whether or not the government officials who ordinarily defend a challenged enactment were also defending the measure in the proceeding. This court, however, has not previously had occasion fully to explain the basis upon which an official initiative proponent’s ability to participate as a party in such litigation rests
As we shall explain, because the initiative process is specifically intended to enable the people to amend the state Constitution or to enact statutes when current government officials have declined to adopt (and often have publicly opposed) the measure in question, the voters who have successfully adopted an initiative measure may reasonably harbor a legitimate concern that the public officials who ordinarily defend a challenged state law in court may not, in the case of an initiative measure, always undertake such a defense with vigor or with the objectives and interests of those voters paramount in mind. As a consequence, California courts have routinely permitted the official proponents of an initiative to intervene or appear as real parties in interest to defend a challenged voter-approved initiative measure in order “to guard the people’s right to exercise initiative power” or, in other words, to enable such proponents to assert the people’s, and hence the state’s, interest in defending the validity of the initiative measure. Allowing official proponents to assert the state’s interest in the validity of the initiative measure in such litigation (along with any public officials who may also be defending the measure) (1) assures voters who supported the measure and enacted it into law that any residual hostility or indifference of current public officials to the substance of the initiative measure will not prevent a full and robust defense of the measure to be mounted in court on the people’s behalf, and (2) ensures a court faced with the responsibility of reviewing and resolving a legal challenge to an initiative measure that it is aware of and addresses the full range of legal arguments that reasonably may be proffered in the measure’s defense. In this manner, the official proponents’ general ability to appear and defend the state’s interest in the validity of the initiative measure and to appeal a lower court judgment invalidating the measure serves to enhance both the fairness of the judicial process and the appearance of fairness of that process.
We have cautioned that in most instances it may well be an abuse of discretion for a court to fail to permit the official proponents of an initiative to intervene in a judicial proceeding to protect the people’s right to exercise their initiative power even when one or more government defendants are defending the initiative’s validity in the proceeding. Thus, in an instance — like that identified in the question submitted by the Ninth Circuit — in which the public officials have totally declined to defend the initiative’s validity at all, we conclude that, in light of the nature and purpose of the initiative process embodied in article II, section 8 of the California Constitution and the unique role of initiative proponents in the constitutional initiative process as recognized by numerous provisions of the Elections Code, it would clearly constitute an abuse of discretion for a court to deny the official proponents of an initiative the opportunity to participate as formal parties in the proceeding, either as interveners or as real parties in interest, in order to assert the people’s and hence the state’s interest in the validity of the measure and to appeal a judgment invalidating the measure. In other words, because it is essential to the integrity of the initiative process embodied in article II, section 8 that there be someone to assert the state’s interest in an initiative’s validity on behalf of the people when the public officials who normally assert that interest decline to do so, and because the official proponents of an initiative (in light of their unique relationship to the initiative measure under art. II, § 8 and the relevant provisions of the Elec. Code) are the most obvious and logical persons to assert the state’s interest in the initiative’s validity on behalf of the voters who enacted the measure, we conclude that California law authorizes the official proponents, under such circumstances, to appear in the proceeding to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure. Neither the Governor, the Attorney General, nor any other executive or legislative official has the authority to veto or invalidate an initiative measure that has been approved by the voters. It would exalt form over substance to interpret California law in a manner that would permit these public officials to indirectly achieve such a result by denying the official initiative proponents the authority to step in to assert the state’s interest in the validity of the measure or to appeal a lower court judgment invalidating the measure when those public officials decline to assert that interest or to appeal an adverse judgment.
Accordingly, we respond to the question posed by the Ninth Circuit in the affirmative. In a postelection challenge to a voter-approved initiative measure, the official proponents of the initiative are authorized under California law to appear and assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure when the public officials who ordinarily defend the measure or appeal such a judgment decline to do so.
II. Relevance of State Law to Standing under Federal Law
Decisions of the United States Supreme Court establish that the determination whether an individual or entity seeking to participate as a party in a federal court proceeding or to appeal from an adverse judgment entered in such a proceeding possesses the requisite standing to satisfy the “case or controversy” provisions of article III of the United States Constitution is ultimately a question of federal law upon which the federal courts have the final say.
As the question posed by the Ninth Circuit indicates, in the present case two potential bases for standing are implicated: (1) The official proponents of a successful initiative measure may have authority to appear in court to assert the state’s interest in defending the validity of a duly enacted state law,9 or (2) the official proponents may have their own personal “particularized ” interest in the initiative’s validity. We briefly discuss the federal decisions that analyze the effect of state law on each of these potential bases for standing in federal court.
Standing to Assert the State’s Interest in an Initiative’s Validit
With respect to the question of who possesses standing to assert the state’s interest in defending the validity of a state constitutional provision or statute when the state measure is challenged in a federal proceeding, we believe . . . that a federal court will look to state law to determine whom the state has authorized to assert the state’s interest in the validity of the challenged measure.
We note in this regard that in its order submitting the present question to this court, the Ninth Circuit stated explicitly that, in its view, if the official proponents of an initiative have authority under California law to assert the state’s interest in the initiative measure’s validity in such a case, then, under federal law, the proponents would have standing in a federal proceeding to assert the state’s interest in defending the challenged initiative and to appeal a judgment invalidating the initiative.
B. Standing Based on “Particularized Interest”
Under the particularized interest standard, federal decisions establish that a federal court considers whether a prospective party is able to demonstrate “an invasion of a legally protected interest which is (a) concrete and particularized, … and (b) ‘actual or imminent, not “conjectural” or “hypothetical.” Although the United States Supreme Court has recognized that a state “has the power to create new interests, the invasion of which may confer standing” under federal law, not every interest that state law recognizes as conferring standing on an individual or entity to institute or to defend a particular kind of lawsuit in state court will be sufficient to establish that the individual or entity has a particularized interest to bring or defend an analogous lawsuit in federal court.
Proponents maintain that because they possess a fundamental right under the California Constitution to propose statutory or constitutional changes through the initiative process, they possess a personal, particularized interest in the validity of an initiative measure that they have proposed and that has been approved by the voters, an interest that would go undefended if they are not permitted to provide such a defense when the public officials who ordinarily defend a challenged state law decline to do so. Proponents argue that their personal, fundamental right guaranteed by the initiative provision would be nullified if a voter-approved measure they have sponsored is improperly and incorrectly invalidated because public officials who are hostile to the measure have failed to mount a defense or to appeal a lower court judgment striking down the initiative.
Plaintiffs, by contrast, assert that although the official proponents of an initiative may possess a personal, particularized interest under the California Constitution and the applicable statutory provisions in having an initiative measure they have proposed submitted to the voters, once an initiative measure has been approved by the voters the official proponents have no greater personal legally protected interest in the measure’s validity than any other member of the public. Accordingly, plaintiffs argue that once an initiative measure has been enacted into law, its official proponents do not possess a distinct, particularized interest in the initiative’s validity.
As we explain, we need not decide whether the official proponents of an initiative measure possess a particularized interest in the initiative’s validity once the measure has been approved by the voters. For the reasons discussed below, we conclude that when public officials decline to defend a voter-approved initiative or assert the state’s interest in the initiative’s validity, under California law the official proponents of an initiative measure are authorized to assert the state’s interest in the validity of the initiative and to appeal a judgment invalidating the measure. Because that conclusion is sufficient to support an affirmative response to the question posed by the Ninth Circuit, we need not decide whether, under California law, the official proponents also possess a particularized interest in a voter-approved initiative’s validity
III. Analysis of Initiative Proponents’ Standing Under California Law
Basis of Initiative Proponents’ Standing
Article II, section 1 of the California Constitution proclaims: “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.
Although California’s original 1849 Constitution declared that “all political power is inherent in the people,” it was not until 60 years later — in 1911 — that the California Constitution was amended to afford the voters of California the authority to directly propose and adopt state constitutional amendments and statutory provisions through the initiative power. In Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, we briefly described the history, significance, and consistent judicial interpretation of the constitutionally based initiative power in California: “The amendment of the California Constitution in 1911 to provide for the initiative and referendum signifies one of the outstanding achievements of the progressive movement of the early 1900’s. Drafted in light of the theory that all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted the people, but as a power reserved by them. Declaring it ‘the duty of the courts to jealously guard this right of the people’ …, the courts have described the initiative and referendum as articulating ‘one of the most precious rights of our democratic process….’ ‘It has long been our judicial policy to apply a liberal construction to this power wherever it is challenged in order that the right be not improperly annulled. If doubts can reasonably be resolved in favor of the use of this reserve power, courts will preserve it.’ ”
As a number of our past decisions have explained, the progressive movement in California that introduced the initiative power into our state Constitution grew out of dissatisfaction with the then-governing public officials and a widespread belief that the people had lost control of the political process. In this setting, “the initiative was viewed as one means of restoring the people’s rightful control over their government, by providing a method that would permit the people to propose and adopt statutory provisions and constitutional amendments.” The primary purpose of the initiative was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt. The 1911 ballot pamphlet argument in favor of the measure described the initiative as “that safeguard which the people should retain for themselves, to supplement the work of the legislature by initiating those measures which the legislature either viciously or negligently fails or refuses to enact….”
As a number of our past decisions have explained, the progressive movement in California that introduced the initiative power into our state Constitution grew out of dissatisfaction with the then-governing public officials and a widespread belief that the people had lost control of the political process. In this setting, “the initiative was viewed as one means of restoring the people’s rightful control over their government, by providing a method that would permit the people to propose and adopt statutory provisions and constitutional amendments.” The primary purpose of the initiative was to afford the people the ability to propose and to adopt constitutional amendments or statutory provisions that their elected public officials had refused or declined to adopt. The 1911 ballot pamphlet argument in favor of the measure described the initiative as “that safeguard which the people should retain for themselves, to supplement the work of the legislature by initiating those measures which the legislature either viciously or negligently fails or refuses to enact….”
The California constitutional provisions setting forth the initiative power do not explicitly refer to or fully prescribe the authority or responsibilities of the official proponents of an initiative measure,12 but the Legislature, in adopting statutes to formalize and facilitate the initiative process, has enacted a number of provisions that explicitly identify who the official proponents of an initiative measure are and describe their authority and duties.
Neither the state constitutional provisions relating to the initiative power, nor the statutory provisions relating to the official proponents of an initiative measure, expressly address the question whether, or in what circumstances, the official proponents are authorized to appear in court to defend the validity of an initiative measure the proponents have sponsored. Nonetheless, since the adoption of the initiative power a century ago, decisions of both this court and the Courts of Appeal have repeatedly and uniformly permitted the official proponents of initiative measures to participate as parties — either as interveners or as real parties in interest — in both preelection and postelection litigation challenging the initiative measure they have sponsored.
Furthermore, the participation by official initiative proponents as formal parties in such litigation has routinely been permitted whether or not the Attorney General or other public officials were also defending the challenged initiative measure in the judicial proceeding in question. The decisions in which official initiative proponents (or organizations that have been directly involved in drafting and sponsoring the initiative measure) have been permitted to participate as parties in California proceedings involving challenges to an initiative measure are legion [citing numerous cases].
Once an initiative measure has been approved by the requisite vote of electors in an election, however, the measure becomes a duly enacted constitutional amendment or statute. At that point, in the absence of a showing that the particular initiative in question will differentially affect the official proponents’ own property, liberty or other individually possessed legal right or legally protected interest, it is arguably less clear that the official proponents possess a personal legally protected stake in the initiative’s validity that differs from that of each individual who voted for the measure or, indeed, from that of the people of the state as a whole. Although the matter is subject to reasonable debate, one may question whether the official proponents of a successful initiative measure, any more than legislators who have introduced and successfully shepherded a bill through the legislative process, can properly claim any distinct or personal legally protected stake in the measure once it is enacted into law.
Nonetheless, as we have seen, the decisions of this court and the Courts of Appeal in postelection challenges to voter-approved initiative measures have uniformly permitted the official proponents of an initiative measure to intervene, or to appear as real parties in interest, to defend the validity of the challenged initiative measure. In the postelection setting, the ability of official initiative proponents to intervene or to appear as a real parties in interest has never been contingent upon the proponents’ demonstration that their own personal property, liberty, reputation, or other individually possessed, legally protected interests would be adversely or differentially affected by a judicial decision invalidating the initiative measure. Plaintiffs have not cited, and our research has not disclosed, any decision in which the official proponents of an initiative measure were precluded from intervening or appearing as real parties in interest in a postelection case challenging the measure’s validity, even when they did not have the type of distinct personal, legally protected interest in the subject matter of the initiative measure that would ordinarily support intervention or real party in interest status on a particularized interest basis. Instead, they have been permitted to participate as parties in such litigation simply by virtue of their status as official proponents of the challenged measure.
Accordingly, we conclude that when the public officials who ordinarily defend a challenged measure decline to do so, article II, section 8 of the California Constitution and the applicable provisions of the Elections Code authorize the official proponents of an initiative measure to intervene or to participate as real parties in interest in a judicial proceeding to assert the state’s interest in the initiative’s validity and to appeal a judgment invalidating the measure.
Our determination that the official proponents of an initiative are authorized to assert the state’s interest in the validity of the initiative measure when public officials have declined to defend the measure, however, does not mean that the proponents become de facto public officials or possess any official authority to enact laws or regulations or even to directly enforce the initiative measure in question. Rather, the authority the proponents possess in this context is simply the authority to participate as a party in a court action and to assert legal arguments in defense of the state’s interest in the validity of the initiative measure when the public officials who ordinarily would assert the state’s interest in the validity of the measure have not done so.
IV. Conclusion
In response to the question submitted by the Ninth Circuit, we conclude, for the reasons discussed above, that when the public officials who ordinarily defend a challenged state law or appeal a judgment invalidating the law decline to do so, under article II, section 8 of the California Constitution and the relevant provisions of the Elections Code, the official proponents of a voter-approved initiative measure are authorized to assert the state’s interest in the initiative’s validity, enabling the proponents to defend the constitutionality of the initiative and to appeal a judgment invalidating the initiative.
We Concur: Kennard, Baxter, Werdegar, Chin, Corrigan, and Liu, JJ.
Critique
Hans Linde, “When Initiative Lawmaking Is Not Republican Government”
Hans A. Linde, “When Initiative Lawmaking Is Not “Republican Government”: The Campaign against Homosexuality,” 72 Or. L. Rev. 19 (1993)
In November 1992, Oregon voters rejected a proposed constitutional amendment aimed primarily against homosexuality. The initiative campaign for the proposal, Measure 9 on the ballot,1 was sponsored and supported by conservative Christian groups spearheaded by the Oregon Citizens Alliance and was vociferously opposed by Oregon’s mainline political, journalistic, business, and religious leaders. The opponents welcomed the defeat of Measure 9 with satisfaction and relief. Good sense had prevailed. Apparently the Oregon system had worked again.
The relief is understandable, but the satisfaction was misplaced. The defeat of Measure 9 temporarily obscured an important constitutional issue, an issue that would have risen to public attention if the measure had passed and that needs to be faced for the future. Measure 9 could not legally be placed on the ballot by the initiative process. It was improper as a statewide initiative regardless whether the measure would violate constitutional rights if it were enacted with the participation of the legislature. The state’s federal obligation to maintain a republican form of government disqualified this proposal from being put to a plebiscite by initiative petitions.
The formal legal reasons for this conclusion are quickly stated. The framers of the United States Constitution, in Article IV, section 4, provided that “[t]he United States shall guarantee to every State in this Union a Republican Form of Government.” This clause (known as the Guaranty Clause) obligates each state to govern itself by republican institutions. As the United States Supreme Court wrote in 1874, “The guaranty necessarily implies a duty on the part of the States themselves to provide such a government.”2 It therefore also is the duty of state officials to determine whether a governmental institution or process is compatible or incompatible with the republican forms that the United States Constitution postulates. And it is explicitly the duty of state courts, because Article VI states that the judges in every state are bound by the Constitution as the supreme law of the land, “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The Oregon Supreme Court recognized this responsibility in deciding the earliest challenges to initiated measures, and it has affirmed its continued readiness to do so.3 Early state courts decided numerous other claims that various state laws contravened republican principles,4 and as recently as 1973 the Kansas Supreme Court reviewed a change in the Kansas Constitution for compliance with the Guaranty Clause.5 State officials and state courts, however, must apply the constraints of republicanism without help from the United States Supreme Court, which held (in one of the early Oregon cases) that within the federal government the clause places enforcement of the guarantee in the hands of the political branches rather than the federal courts.6 The clause was invoked in challenging malapportioned legislatures, but after the Supreme Court reformed electoral districts for denying equal protection rather than republican government,7 lawyers lost interest in the guarantee.
Lawmaking by popular vote on an initiated proposal of course bypasses the committee study, hearings, amendments, and compromises of legislative deliberation; that was and is its purpose. Divisive proposals like Measure 9 rarely pass these hurdles. An initiated amendment also bypasses judicial review under the state constitution, thus eliminating the last safeguards cited in Kadderly [v. Portland,(Ore. 1903)] to defend the system.63 If an initiative system nonetheless is a permissible republican device in principle, as the early opinions assumed, the system’s validity depends on its ability to avoid misuse for those ends that deliberative institutions were meant to prevent. It depends on the judgment of the state’s officials and judges to screen measures of “passion” from the mass of proposals of ordinary, though perhaps strongly disputed, public policies.64
How are the state’s officials and judges to make that required judgment? How can they recognize a measure that bypasses the legislative process to address popular passion? There are familiar precedents once we separate questions of the constitutional test from questions of procedure. Applying the test may sometimes depend on facts, but often it does not.
Two famous cases offer illustrations. Although the Catholic bishops had no occasion to mention it, they doubtless recalled the precedent of 1922, when the Ku Klux Klan led a majority of Oregon voters to outlaw private schools. The measure required parents to send their children to public schools;76 it did not refer to the parochial schools that were most of the forbidden alternative, but no one needed to be told that. The policy itself might reasonably have been debated and adopted or rejected by a state’s government, before the United States Supreme Court later ruled otherwise [in Pierce v. Society of Sisters, 268 U.S. 510 (1925]. But a policy to eliminate parochial schools posed exactly the kind of sectarian confrontation that the guarantee of republican lawmaking does not permit to be put directly to a plebiscite on initiative petitions that bypass the state’s representative and judicial institutions.
The second example is the case of California’s 1964 initiative, Proposition 14. The state legislature had enacted three laws directed against racial discrimination in the sale or rental of housing. Proposition 14 amended the California Constitution to preclude such restrictions on a property owner’s choice to whom to sell or rent real property. The amendment was phrased as a “right” of the property owner; it made no reference to racial or other discrimination, just as Oregon’s public school amendment made no reference to parochial or private schools.78 The California Supreme Court conceded that nothing compelled the state to forbid private discrimination. The state’s legislators could repeal their predecessors’ open housing laws. But the court recognized that the objective and the historical context of Proposition 14 clearly marked it as an appeal to the prejudices of a majority of California voters [citing Mulkey v. Reitman, 413 P.2d 825 (Cal. 1966)].79 Had the argument been made, the Guaranty Clause should have barred use of the initiative for such an appeal. Instead, the litigants unhesitatingly turned to the familiar case law under the post-Civil War Equal Protection Clause, and the courts invalidated the measure on the more difficult grounds that its enactment involved the state in racial discrimination in the housing market.80
Most statutory initiatives propose ordinary choices of public policy. They do not raise the concerns addressed by the guarantee of republican government. A description of initiatives that the guarantee does disqualify can identify the following forms:
1. Initiatives that refer to any group of individuals in pejorative or stigmatizing terms or, conversely, in terms that exalt one group over other members of the community. This is the most obvious invitation to collective passions, and Measure 9’s epithets plainly failed the test.
2. Initiatives that avoid emotional, ideological, or sectarian labels but are by their terms directed against identifiable racial, ethnic, linguistic, religious, or other social groups. As a proposal asking voters to take sides for and against homosexuals, Measure 9 would have failed this test even without its epithets.
3. Initiatives that do not name any targeted group, but that are proposed in a historical and political context in which the responsible state officials and judges have no doubt that the initiative asks voters to choose sides for and against such an identifiable group and that it is so understood by the public. This type of measure includes initiatives like Oregon’s measure closing parochial schools by requiring all children to attend public schools and California’s Proposition 14, which repealed existing anti-discrimination laws in the guise of affirming a new constitutional right of property owners. This test would disqualify initiatives that proposed measures like California’s alien land law, Nebraska’s prohibition against teaching German, or the various loyalty oaths and other anti-radical laws of the 1920s and 1950s without going through legislative deliberations. Ordinarily the context for mobilizing an initiative drive will not be obscure to anyone, but if the responsible officials or judges are unsure, procedures to make the determination exist or can be designed.
4. Initiatives which appeal to majority emotions to impose values that offend the conscience of other groups in the community without being directed against those groups. Proposals to suppress teaching about evolution, to replace school prayers with minutes of silence, to enact a death penalty, and perhaps also Prohibition, abortion laws, and similarly ideological measures that sometimes sweep the country, are not directed against people to whom imposing these social values is not merely unwise policy but offensive in principle. Of course proponents may pretend utilitarian goals for any measure, but initiatives of this type will rarely obscure their noninstrumentalist, emotional wellsprings.83 This is precisely why they, too, need to pass through the safeguards of republican lawmaking.
5. Initiatives to place affirmative legislation into the constitution itself, where the measure neither can be amended by the legislature nor tested by judges to stay within limits imposed by the state’s constitution. For this final point, courts need only take seriously the main pillar on which Justice Bean in Kadderly rested his defense of Oregon’s form of government.84 The defense was that initiated laws “may be amended or repealed by the legislature at will” and that they “are subject to the same constitutional limitations as other statutes.”85 When an initiative amendment includes affirmative legislation, the legislature and the state courts might as well not exist. Kadderly does not save such initiatives, regardless of subject, from the Guaranty Clause.86
Kenneth P. Miller, “Constraining Populism: The Real Challenge of Initiative Reform”
Kenneth P. Miller, :Constraining Populism: The Real Challenge of Initiative Reform,” 41 Santa Clara L. Rev. 1037 (2001)
There are two distinct, competing views of the initiative process, the “Progressive” conception and the “Populist” conception. [FN3] These competing conceptions date back over a century, to the origins of California’s initiative process. The initiative is often characterized as Progressive reform because it was introduced in California and many other states during the Progressive Era of the early twentieth century. [FN4] However, the Populists, not the Progressives, were the first ones to agitate for direct democracy at the end of the nineteenth century in California and elsewhere. [FN5] Although both Populists and Progressives wanted to introduce direct democracy, they had very different reasons for doing so and different conceptions of how these mechanisms should be used. [FN6] These historical distinctions matter because the two conceptions continue to exist, and they underlie the current debate over whether the initiative process needs to be reformed, and if so, in what manner.
This article distinguishes between the two competing conceptions of the initiative process and argues that the Populist conception has prevailed — with respect to both process and substance. As a result, the process bypasses and undermines representative government, rather than supplementing and improving it. Many modern-day Progressives are disenchanted with the initiative process and seek through reforms to constrain its Populist characteristics. [FN7] Indeed, many ideas for reforming California’s initiative process have “constraining” effects. Such reforms face an uphill fight, however, given the broad popular support for the initiative process and the continuing public distrust of representative government. In light of these difficulties, it may fall to the California Supreme Court to place constraints on Populist-oriented initiative lawmaking, through stricter application of the California Constitution’s rules governing the initiative process, such as the single subject rule and the no-revision rule. [FN8] However, since the burden on courts to check the initiative process is already heavy, reformers should continue to do what they can to constrain the process by other, non-judicial, means. In sum, reforms to constrain the Populist-orientation of the California initiative, though hard to achieve, are necessary and worth fighting for.
II. Dueling Conceptions of Direct Democracy: Populist v. Progressive
Both of the terms, “Populist” and “Progressive,” refer to political movements in specific historical moments just before and just after the turn of the last century, respectively, but they also describe longer-term, often competing, impulses within American political culture.
The historical political movement called “Populism” emerged in the latter decades of the nineteenth century. [FN9] It was a protest movement by political outsiders, composed mostly of distressed farmers, but also laborers, ranchers, and debtors of all types. Populists [FN10] were a factious coalition but agreed on three fundamental points: 1) the government needs to combat private economic power, which profits at the expense of the common person, but 2) it cannot be trusted to do so, and thus, 3) the “people” must gain control of the government. That last principle led them to advocate, almost obsessively, direct legislation. For many Populists, adoption of the mechanisms of direct democracy overshadowed nearly every other issue.
For a time, Populists sought to organize advocacy organizations (such as the non-partisan Farmers’ Alliance) and work for change within existing political structures. Largely frustrated in these efforts, however, Populists lashed out at the government, founded a third party, the “People’s party,” drafted a series of platforms, fielded candidates for office, and agitated for direct democracy. The “Populist Era” made an especially large impact in the western states. In California, Populist distrust of government at all levels, especially the legislature, influenced the drafting of the state’s 1879 Constitution. [FN13] Drafters incorporated into the document many specific provisions that would normally be considered “ordinary policy,” thus restricting the legislature’s discretion. [FN14] In addition, it was during the Populist Era that *1041 demand for direct democracy first emerged in California. In the 1890s, Dr. John Randolph Haynes, leader of the Direct Legislation League of California (which had ties to the Populist Party) was agitating for the adoption of the initiative, referendum, and recall in California. [FN15] By the turn of the century, Populism dissipated as an organized party and political movement, but by then it had already influenced the future direction of California politics and government.
The Progressive movement followed closely thereafter, and flourished during the first two decades of the twentieth century. Progressivism was a reform movement that brought together a coalition of earnest reformers including liberal urban clergy, social workers, suffragettes, academics, “muckraking” journalists, and civic-minded professionals, who wanted to address social problems created by industrialization, urbanization, immigration, and other dislocating forces. [FN16] In their view, an enlightened, professionalized government was indispensable, but government needed to be reformed to carry out its role. Progressives believed that corrupt party bosses, allied with increasingly powerful and selfish corporate interests, had seized control of representative government, especially legislatures, and were using government to retard social progress. It was imperative, they believed, to liberate representative government from these corrupt forces so that it might become an effective instrument for social reform. The Progressive strategy for restructuring and reforming representative government was several-fold. On the one hand, Progressives sought to make government more responsive and accountable to the electorate through expanded suffrage, direct primaries, and direct election of senators, as well as through the new mechanisms of initiative, referendum, and recall, but they also sought to strengthen and professionalize government by establishing professional bureaucracies, non-partisan commissions, strong city managers, and the like.
In California, a leading Progressive, Hiram Johnson, was elected governor in 1910 on a platform to break the Southern Pacific Railroad’s stranglehold on the state legislature. As part of his program, he persuaded Californians in a special election in 1911 to adopt the initiative, referendum, and recall. [FN17] The mechanisms of direct democracy were part of the California Progressives’ comprehensive package of twenty-three constitutional amendments designed to strengthen and improve representative government. Other provisions established women’s suffrage, expanded the state court system, created an independent railroad commission, increased the state’s power to regulate public utilities, and improved the state’s capacity to inspect and ensure the quality of food and merchandise. [FN18] Unlike the Populists, the Progressives respected representative government and sought to use the initiative in coordination with other reforms to enhance government’s responsiveness, administrative competence, and expertise.
The Populist and Progressive movements continue to operate in new guises in California and elsewhere. Their enduring characteristics can be summarized as follows. The Populist impulse, first of all, is essentially individualistic: it is driven by individual self-interest, by the common person’s aspiration for political equality and social and economic opportunity. Populism is also democratic, in that it assumes that common people are trustworthy and competent — given a chance, they will make wise choices. Most importantly, Populism is anti-establishment: it distrusts concentration of power in the hands of elites, either in the private sector or in government. By contrast, the Progressive impulse is moralistic, in that Progressives want to reform government and society. It is also optimistic, holding great faith that well-run institutions can effect social progress. Finally, Progressivism is elitist, in that it wants to invest power in well-trained professional experts.
Populists distrust representative government and seek to constrain it by, among other things, cutting taxes, capping spending, imposing term limits on elected officials, and locking in constitutional limits on policy choices. Moreover, Populists embrace an unconstrained initiative process, seeking (to the extent possible) to substitute direct popular control for representative government. Examples of today’s Populists include U.S. Term Limits and various tax-limitation organizations.
Progressives, by contrast, like government, so long as it is “clean,” efficient, and focused on achieving public goods. They believe the mechanisms of direct democracy are useful only insofar as they “redeem” representative government. While Progressives sometimes disapprove of the mediating role parties and corporate interests play in government, as a rule they do not believe that the public can govern without mediation. Instead, they believe in the importance of expertise and administrative competence. Contemporary Progressives include “good government” groups like Common Cause and the League of Women Voters.
The historical record is clear that both Populists and Progressives sought introduction of the initiative process but had different motivations for doing so. Progressives wanted the initiative, referendum, and recall to serve as an additional check on representative government, one tool among many to improve the government’s quality and effectiveness. Populists, however, had a more radical vision. They sought to use the initiative power to undermine representative government and shift power to the people themselves.
Populists and Progressives provided two approaches to direct democracy. Under the Progressives, direct democracy would not constitute a “fourth branch” of government with co-equal or even greater power than the other three branches but rather a supplementary and corrective check on the tripartite Madisonian scheme. Perhaps the closest approximation to the Progressive vision of direct democracy can be found in the state of Washington. The Washington State Constitution permits initiative lawmaking, but in a more constrained way that does not undermine the legislature to the same degree that California’s Populist-based initiative process allows. Citizens in Washington can initiate statutes either by an “initiative to the legislature” or by an “initiative to the people.” [FN19] “Initiative to the legislature” is another name for the indirect initiative. It is a mechanism whereby citizens draft a proposed law, and if they gather enough petitions, the proposal is formally presented to the legislature. At that point, the legislature holds hearings on the measure and has the opportunity to adopt it. If it chooses to do so, the measure becomes law. [FN20] If the legislature fails to adopt the measure, it then goes on the ballot, but the legislature may also submit an alternative. The voters are then able to adopt one of the alternatives, or reject both. [FN21]
Citizens in Washington also have the option of proposing an initiative directly to the voters, without first going to the legislature. Importantly, all voter-approved initiatives in Washington State, direct or indirect, are subject to legislative amendment or repeal. If the legislature seeks to amend an initiative within two years of passage, it must muster a two-thirds vote in both houses. After two years, the initiative may be amended or repealed by majority vote, just like any other law. [FN22] In addition, Washington State does not allow citizen initiated constitutional amendments. [FN23] All constitutional amendments must originate in the legislature. As a result of these features, initiative proponents in Washington cannot lock in policies either through constitutional amendments or unamendable statutes. This model supplements Madisonian republican structures by allowing for additional popular input, but constrains the ability of Populist forces to undermine representative government. [FN24] California, however, has adopted a different approach.
III. The Populist Victory and the Problems It Causes
In California, the Populist conception of direct democracy has prevailed. The roots of that triumph can be found in the original structures of California’s initiative process, as amended into the state constitution in 1911, but the magnitude of the victory has become fully apparent only in the last three decades.
A. Structural Factors
Unlike Washington, but similar to many other initiative states, California’s initiative process allows citizens to amend the state constitution directly with virtually no input from representative government. Through initiative constitutional amendments, citizens can completely bypass the legislature and — by a simple majority vote — enshrine temporary As noted above, the state’s current constitution, ratified during the Populist Era, originally contained many provisions that normally would be considered “statutory” rather than “constitutional” in nature. [FN26] This ploy was motivated by distrust for representative government and was designed to remove certain policy matters from the legislature’s control. California’s initiative constitutional amendment process allows the electorate to amend the constitution at will — and to “constitutionalize” policy choices so that they remain off-limits to legislative change, absent subsequent voter approval.
California’s initiative process goes a step further than all other initiative states, however, by preventing post-enactment legislative amendment of statutory initiatives. Unlike Washington State, which allows the legislature to amend or repeal an initiative by a two-thirds vote in the two years after the initiative is approved and by a simple majority vote thereafter, California permits no legislative amendment of statutory initiatives without voter approval, unless the initiative itself makes provision for it. [FN29] This rule is clearly motivated by distrust of the legislature, and it in fact ties the legislature’s hands in much the same way that constitutionalizing policy choices does. Thus, in California, both initiative constitutional amendments and initiative statutes undermine the authority and flexibility of representative government.
During the 1970s, Californians grew increasingly distrustful of representative government. This shift in the public’s attitude toward government created conditions necessary for the great Populist achievement, Proposition 13 of 1978, the initiative that slashed property taxes and required voter approval for future tax increases. The campaign for Proposition 13 played on Populist resentments, not only about taxes, but also about representative government.
One might reasonably ask: Isn’t this a good thing? Doesn’t the sharp increase in initiative lawmaking demonstrate that over the past couple of decades Californians have enjoyed a unique opportunity to participate in the democratic process? And isn’t this system certainly “more democratic” than the representative system — and therefore an improvement? Although this perspective seems appealing at first glance, since who wants to argue against the people’s right to decide, a closer examination suggests that initiative lawmaking — at least in its current Populist-oriented form — gives cause for concern. First, the process of Populist-oriented initiative lawmaking is not necessarily “more democratic” than the representative system, if one conceives of “democracy” as not just “majority rule” but instead a process that includes a range of democratic norms. Second, the substance of Populist-oriented initiative lawmaking tends to undermine representative government and impose majoritarian values at the expense of minority rights. In our constitutional system, these substantive outcomes often give rise to post-election legal challenges, which frequently result in judicial invalidation of voter-approved initiatives — a chain of events that is hardly optimal.
Some commentators concede that initiative lawmaking in its current form is far from the Progressive ideal, but argue that it does not really represent “Populism,” either, in that it is not controlled by “the people,” but rather by well-heeled special interests (e.g., big business, big labor, trade associations) or political parties and public officials; moreover, some argue, “the people” are merely pawns in the process who are powerless to shape proposals or register their true preferences. It is hard to dispute that the present initiative system is a distorted form of Populism; interest groups and public officials, armed with the tools of the initiative industry, are often the ones driving the process. Some political scientists, such as Daniel A. Smith, contend that even modern taxpayer revolts are not truly “Populist” movements, in that they are often run by professional organizations and receive financial backing from wealthy interests.
[The author goes on to recommend reforms to the initiative process that would: 1) make it more difficult to amend the state Constitution by initiative; 2) give the legislature a greater role in the initiative process, including power to amend initiative proposals, authorize the “indirect initiative,” require that initiative proposals be vetted by courts or the Attorney-General before being submitted to the people, improve the quality of information provided to the voters, and further restrict the scope of initiatives by tightening up the single-subject and revision/amendment distinction. He concludes:]
In the meantime, if the moment is not right for constraining reforms, the state supreme court has a duty to become the “watchdog” of the initiative process. More aggressive enforcement of existing constitutional rules for initiative lawmaking, e.g., the single subject and no-revision rules, can have significant constraining effects. Progressive reformers must recognize, however, that the court assumes a political risk by more aggressively checking initiative lawmaking. The same Populist impulse that currently drives the initiative process can also be directed against the court. Accordingly, reformers should not just comfortably rely on the court to protect California’s representative government from the state’s Populist-oriented initiative process, but instead should work to create the necessary conditions for constraining reforms.
Ronald M. George, “The Perils of Direct Democracy: The California Experience”