The relationship between the California Supreme Court and the other branches of state government has seen better days. Justices who wonder why might recall the “respect for others” lesson taught in kindergarten.
The court’s recent order removing Proposition 49 from the November ballot is its latest disregard of its co-equal branches. Proposition 49 asked a simple question: Should Congress adopt and California ratify an amendment to overturn the notorious Citizens United campaign finance case?
Thousands of Californians signed a petition in favor of having the question on the ballot. The Legislature passed a bill to put it there. The governor allowed the bill to become law. The court, however, said because the law’s validity is uncertain, the advisory ballot measure could not be placed before the California electorate.
The order stands settled principles of law on their heads. First, as Chief Justice Tani Cantil-Sakauye reminded the court in her dissent, legislative actions are generally presumed to be valid, and courts are reluctant to interfere with ballot measures unless there is a clear showing of invalidity. But in this case, the court did not demand a clear showing of invalidity. It was enough for the justices signing the order that the measure’s validity was uncertain.
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Why was it uncertain? Justice Goodwin Liu explained in a concurring statement: While nothing in the California or federal constitutions expressly prohibits a state from having advisory ballots, an advisory ballot would be inconsistent with the California Constitution’s “structure and text.” In Liu’s conception of government, voters vote for legislators, legislators vote on laws. An advisory measure would blur lines of accountability that are important to maintaining a representative form of government.
This might be the case for our federal government; the federal Constitution’s framers famously rejected direct democracy. But while the federal Constitution displays an aversion to direct democracy, the California Constitution’s text and structure display much greater tolerance for direct voter involvement.
Not only does the California Constitution give the voters the right to the initiative and referendum processes, Article 1, Section 3 gives Californians the right to instruct their representatives – a right the federal framers rejected.
Direct citizen engagement is part of the fabric of California democracy, where citizens redistrict the state, sit on formal advisory commissions, and routinely vote on advisory ballots directed to their city and county governments. For better or worse, California has popular democracy. There is nothing fundamentally wrong with the Legislature attempting to work with it.
More importantly, the court’s decision stands a second fundamental principle of California constitutional law on its head. Unlike the federal Constitution, which grants power to the Congress, a state constitution limits the power of a legislature.
The Supreme Court has recognized on more than one occasion, unless the Constitution forbids it by negative terms or necessary implication, the Legislature may act, and the California Constitution gives the Legislature “all the powers and privileges which are necessary” to exercise “its appropriate functions.”
Nowhere in the Constitution does it say the referendum and the initiative are the only way voters can be involved, and an important legislative function is ratifying amendments to the federal Constitution.
If the Legislature and governor ask the voters’ advice on a federal constitutional amendment, the court should allow them to speak because the Constitution does not forbid it.
There is room to disagree over whether advisory ballots are wise; in fact, this article’s authors disagree. One of us feels that since the Legislature could commission a poll – which Liu ironically acknowledges – it can authorize an advisory ballot.
The other co-author sees a danger in allowing an electoral process whose flaws are well known to provide political cover for legislators who lack the courage of their convictions. But we agree that under California’s Constitution, the choice is the Legislature’s.
What of the blurred lines that worry Liu? Of more concern is blurring the lines between the judicial and legislative functions. Ignoring the Legislature and governor because the court feels that waiting will do no harm – the Legislature can put the measure on the ballot again if it prevails when the case’s merits are heard – is like telling the children to go play while the grown-ups decide. It’s not a recipe for repairing the damaged relationship between the court and its co-ordinate branches.
The court issued its order without a full hearing on the merits. Perhaps the decision to come will be more thoughtfully considered. Mutual respect for each branch’s functions and prerogatives would go a long way toward repairing frayed relations. It may be time for the court to accord respect to the choice the Legislature and the governor have made to seek the advice of California voters.