The state constitution bans changing voter-passed initiatives unless voters agree, or the initiatives themselves allow legislative amendment.
When Jerry Brown, as California secretary of state, drafted the Political Reform Act that voters passed in 1974, for example, he added a provision allowing the Legislature to amend it by a two-thirds vote, “for furthering its purposes.”
A Legislature tarnished by scandal has been doing just that by moving to tighten campaign finance laws.
But some ballot measures include such amendment language and some do not. Three pending bills test how far the Legislature can go in changing what voters have wrought.
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Sen. Ricardo Lara, D-Bell Gardens, wants to repeal Proposition 227, the 1998 initiative requiring use of English in public school instruction.
Critics of the measure contend that the English immersion it mandates hurts millions of “English-learner” students, typically offspring of recent immigrants.
Lara’s Senate Bill 1174 would essentially repeal Proposition 227, based on its provision that allows it to be altered by a two-thirds legislative vote or by asking voters for a change.
If enacted by legislators and Brown, the repeal would go onto the 2016 ballot, as the constitution provides.
Two other bills, however, take a different path, claiming an untested right of the Legislature to erase initiatives that have been overturned in the courts.
Senate Bill 396 by Sen. Kevin de León, D-Los Angeles, would repeal Proposition 187, the 1994 measure to deny public services to illegal immigrants.
Although the courts invalidated Proposition 187 – a soft kill stage-managed by then-Gov. Gray Davis – it remains on the books, and De León wants it erased.
Proposition 187 allows the Legislature to amend it “to further its purposes” with a two-thirds vote, but De León asserts that legislators can repeal it on a simple majority vote because it is “unenforceable.”
Proposition 22, passed by voters to recognize only male-female marriages, also was set aside in the courts.
It contained no language allowing the Legislature to amend it, but Senate Bill 1306 by Sen. Mark Leno, D-San Francisco, would repeal it anyway.
The bills embrace a novel, but dangerous, concept – especially since top state officeholders often refuse to legally defend ballot measures they dislike, and many Democratic politicians openly seek to weaken the initiative process.
If it stands, voters could pass a measure, but a governor and legislators could undermine it by not defending its legality (à la Davis and Proposition 187), then repealing the initiative without returning to voters.
Propositions 187 and 22 are dead – and probably good riddance – but the two bills would erode a bedrock constitutional principle of voter sovereignty, an issue that the state Supreme Court should clarify.