In a major victory for democracy, the California Supreme Court upheld the Legislature’s powers and the people’s constitutional right to “instruct” elected representatives in its ruling this month on Proposition 49.
The advisory measure would have asked voters in November 2014 whether Congress should pass a constitutional amendment to rectify U.S. Supreme Court decisions, including Citizens United, that have unleashed corrupting amounts of cash into our politics.
In a striking reversal, the state court concluded that Prop. 49 was wrongfully removed from the ballot. Unfortunately, the court’s muddleheaded meddling has left California voters, who were wronged in 2014, disenfranchised again in 2016. Instead of ordering Prop. 49 directly to the November ballot, the court suggests that the Legislature can pass a new bill to do so.
As the sponsor of Senate Bill 1272, which became Prop. 49, I know something about getting legislation passed. It is a long, difficult, time-consuming, frustrating and expensive process.
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The Legislature passed a perfectly good bill that was invalidated only by the court’s mistake. Why on earth should lawmakers be forced to waste taxpayers’ money and their valuable time passing an identical bill that would differ only in the voting date?
The answer is it shouldn’t.
The court contends that the Legislature intended for Californians to weigh in on Prop. 49 on Nov. 4, 2014, and only on Nov. 4, 2014. Since that date has passed, the law, in the court’s reasoning, is now “moot.” The law is only moot because the court rashly stepped in to stop the vote. Legislators’ intent remains. If anything, the urgency of the question they want to put before the people has only intensified.
Most of what was written about Prop. 49 supported the court’s original step removing Prop. 49 with assertions that the advisory measure makes no law, wastes voters’ time and “bloats the ballot.” Chief Justice Tani Cantil-Sakayue responded to that last claim, saying last year that “what does ballot clutter matter if it leads to substantive law?”
Substantive law is exactly what the last advisory ballot measure produced. In 1892, the Legislature asked Californians if there should be a call for a constitutional amendment to allow for the direct election of U.S. senators. Californians said yes. It took a while, as sometimes these movements do, but eventually with pressure from enough Americans, the 17th Amendment was ratified.
That history, coupled with California’s 37 million voices and unparalleled economic and creative heft to amplify national conversations, is why this “meaningless” ballot measure is being fought with such zeal.
The correct course of action for the court is to order Prop. 49 directly on to the November ballot. Secretary of State Alex Padilla and the Legislature, who have until Jan. 19 to file a writ seeking a rehearing of the case, should urge such action.
The state Supreme Court made this mess and it should clean it up. Its Jan. 4 ruling, while affirming democracy, did not provide relief to voters. When those who lost are still winning, that’s not justice. The court can and should do better.
Michele Sutter of Los Angeles is a co-founder of Money Out Voters In, the sponsors of the bill that became Proposition 49. She can be contacted at firstname.lastname@example.org.