The United States Supreme Court’s decision not to hear the case of Proposition 8 could lead to the effective dismantling of the initiative power vested in the people of California. The decision will encourage state officials to abstain from defending ballot measures they don’t like.
The state’s initiative and referendum process was established in California in 1911 to enable the people to act as the lawmakers of last resort when their representatives proved to be indolent, incompetent or corrupt. For those interested in history, the reform was a direct response to the overwhelming special interest power being exercised in Sacramento by the Southern Pacific Railroad.
If not for the people’s initiative power, we would never have had such important – and diverse – reforms such as Proposition 13, the Political Reform Act, several environmental laws, the death penalty and medical marijuana. Regardless of one’s personal views on these issues, these are matters on which voters, responding to inaction by elected representatives, have had the final say.
Last week’s refusal by the United States Supreme Court to hear the Proposition 8 case, dealing with the definition of marriage, had nothing to do with its constitutionality. The refusal was based on the notion that the proponents of Proposition 8 lacked the legal right – or “standing” – to even be in the courtroom.
The Howard Jarvis Taxpayers Association was not an advocate for either side in the Proposition 8 debate – we do not have a social agenda or a foreign policy, we deal with taxpayer issues. However, we believe that Californians of all points of view would be much happier to have had a well-considered final decision on a matter of rights that are important to so many.
What we got was the refusal to even hear the case, because the state of California refused to mount a defense, and this has tremendous implications for other propositions initiated through citizen action.
Suppose Californians used the initiative to impose a stringent campaign finance disclosure reform and it was overwhelming approved by voters. This would be anathema to the Sacramento political class from both sides of the political spectrum. And were the measure challenged in federal court, it is entirely possible that no state elected official would choose to defend it. After all, most elected officials have an aversion to that political disinfectant known as sunshine.
While in the Proposition 8 case the majority wrote, “The Court does not question California’s sovereign right to maintain an initiative process…” the dissenting justices saw the court’s refusal to take the case as damaging the ability of the people of California to enact a law over the opposition of political leaders.
Giving politicians the right to pick and choose which laws to defend — and initiatives are laws enacted by the people — in actual practice means that the people are in danger of losing the power to contradict the ensconced power brokers and their special interest allies in Sacramento.
If there is any good news here it is that advocacy organizations are virtually unanimous in expressing disappointment in the court’s ruling. Again, this isn’t about the substance of Proposition 8 but, rather, the ability of any group of citizens irrespective of political leanings to use effectively the reserved powers of direct democracy. Already, leaders of these organizations – who rarely agree on anything – are discussing potential changes in California statutory law or, more likely, a state constitutional amendment, to protect the initiative power. In our view, the sooner the better.