Civil and Human Rights

California Supreme Court backs advisory ballot measures

By Howard Mintz 


California voters might want to brace for even fatter ballot pamphlets landing at their homes in future elections.


The California Supreme Court on Monday upheld the state Legislature’s power 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.


As a result of Monday’s ruling, Proposition 49 is likely to be added to this November’s already crowded ballot. Political experts have also predicted legislators will push other advisory measures in the future if the state Supreme Court gave the green light to such powers.


The Legislature, reluctantly backed by Gov. Jerry Brown, put the measure on the ballot two years ago, 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 boiled 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.


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 has blasted 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 Legislature now follows through with reviving Proposition 49, 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 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.


Justice Ming Chin was the lone dissenter in Monday’s ruling, saying advisory measures are “no part of the legislative function.” He voted to keep Proposition 49 off the ballot.

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