Civil and Human Rights

California Legislature’s ballot power in court test

By Howard Mintz


California voter pamphlets are already thick as phone books in some general elections, but the Legislature is now embroiled in a major legal battle that could result in even longer scrolls of ballot measures.


In a case set to be argued Tuesday in the California Supreme Court, the justices are considering whether the Legislature has the authority to put nonbinding, advisory measures on the ballot — allowing state politicians to essentially test the waters on issues with voters without actually enacting new laws.


The unprecedented legal test stems from Proposition 49, a measure removed from the November 2014 ballot by the state’s high court that sought voter views on whether Congress should be asked to overturn the U.S. Supreme Court’s controversial 2010 “Citizens United” ruling on unlimited independent campaign spending.


The Legislature, reluctantly backed by Gov. Jerry Brown, put the measure on the ballot, but the Howard Jarvis Taxpayers Association sued, arguing the California Constitution does not give the Legislature the right to go to voters with purely advisory measures. With only Chief Justice Tani Cantil-Sakauye dissenting, the Supreme Court removed Proposition 49 from the ballot — questioning the Legislature’s right to put it on there — but agreed to address the central issue in the case in the future.


From a legal standpoint, the case boils down to whether California’s Byzantine ballot system allows such political maneuvers by the Legislature. But to many observers, including those who want to see the U.S. Supreme Court’s ruling wiped away, the practical question is whether the Legislature should be cluttering already-cluttered ballots with advisory questions.


“It’s a case of first impression,” said Jessica Levinson, a Loyola University law professor specializing in election law. “This shouldn’t be about whether you like Citizens United. It should be about what the Legislature gets to use the ballot for.”


Added Dan Schnur, director of USC’s Jesse Unruh Institute of Politics: “If they want to be serious about campaign finance reform, there is no shortage of steps they could take through legislation. At the very least, it’s simply a waste of their time and attention.”


The Legislature disagrees. In urging the state Supreme Court to allow them to put advisory measures on the ballot, lawyers for the state’s legislators argue that it is intertwined with their role as elected representatives, citing 11 other states that have used the tactic.


“The authority to formally seek the collective guidance of the voting public on important matters of public policy is inherent in the responsibilities of a legislative body,” the Legislature argues.


But the Howard Jarvis group blasts the concept as a waste of time that smothers the ballot.


“The ballot is a tool to be used by the people, and the Legislature has no power to clutter and confuse the ballot with whatever nonbinding advisory questions its clever political consultants may dream up,” the organization told the Supreme Court.


If the state Supreme Court sides with the Legislature, voters could be asked to decide on Proposition 49 in the November 2016 election. The measure would ask whether Congress should be pressed to approve a constitutional amendment negating Citizens United, a 5-4 ruling that found free speech rights allow unlimited campaign spending by corporations and labor unions.


Several groups have aligned with the Legislature in the state Supreme Court, including Free Speech for the People, a leading campaign finance reform group; the Center for State and Local Government Law; and the Washington, D.C.-based Constitutional Accountability Center.


But the state Supreme Court’s ruling could extend well beyond Proposition 49 if the justices back the Legislature’s right to poll voters in the future with advisory ballot measures.


“This would definitely open the floodgates,” Schnur said. “Voters are already frustrated by the length of the ballot. Throwing in additional measures with no substantive impact would make them even more unhappy.”

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