Dr. Strangevote, Or: How I Learned to Stop Worrying and Love Ballot Initiatives

Posted Mondays, Jeremy Rosenberg's (@LosJeremy) Laws That Shaped LA column spotlights regulations that have played a significant role in the development of contemporary Los Angeles. These laws - as nominated and explained each week by a locally-based expert - may be civil or criminal, and they may have been put into practice by city, county, state, federal or even international authority

This Week's Law That Shaped L.A."¨
Law: Proposition 7
Year: 1911
Jurisdiction: California
Commentator: Jessica Levinson

For a century and a year now, California voters have done the work of our elected representatives.

Not all of the work, mind you. More than 745 new state laws came into being last year alone, according to this article.

But ever since Proposition 7 passed back in 1911, during the zenith of the Progressive Era, the Golden State's citizenry have been blessed, burdened or both by the actual practice -- as opposed to the theory -- of direct democracy.

Jessica Levinson is an associate clinical professorat Loyola Law School.** She also blogs at www.polawtics.blogspot.com and for KCET.org's SoCal Focus.

"This was a reform designed to give power to the people; to allow people to enact legislation with grass roots support," Levinson says of Proposition 7. "What we have instead is a mechanism that allows really powerful interests who could not get their way in the state legislature to circulate a petition, and then for us all to vote on their preferred measure."

This means that come Tuesday, voters will face -- or for those who voted early, will already have faced -- a ballot buckling and bursting with initiatives and a referendum. These are, respectively, the general public's opportunities to add and subtract laws to or from the state's books.

So, Tuesday, voters will fill in circles and provide a proverbial thumbs-up or thumbs-down on such significant and wide-ranging topics as, "Temporary Taxes To Fund Education" (Prop 30), "Political Contributions By Payroll Deduction" (Prop 32), "Auto Insurance Companies" (33), the "Death Penalty" (34), "Human Trafficking" (35) and the "Three Strikes Law" (36).

The depth and breadth of the issues decided by the state's voters is nothing new. According to statistics compiled last year by the Secretary of State, Californians have voted throughout the years on 348 initiatives, 47 referendums and nine recalls. Those numbers have included Prop 13 (see thisLaws That Shaped LA column and this one as well); and Prop 8.

Those numbers don't include the eleven state propositions on the current ballot -- some of which were noted two paragraphs above.

The Secretary's numbers also don't include any L.A. County measures such as the trio on the current ballot. And the numbers don't include the scores of would-be initiatives and referendums that backers announced but then failed to qualify.

At least some of those failed initiatives resulted in signature-gatherers being paid a few bucks for successful solicitations of John and Jane Q. Public for their John and Jane Q. Hancock. See, who says government can't create jobs?

Well, as it happens, paying for people's legal marks turns out to be the tipping point when direct democracy became, as Levinson explains, "a vehicle for moneyed interests."

In 1988, the U.S. Supreme Court decided inMeyer v. Grant, that the state of Colorado could not prohibit initiative proponents from paying signature gatherers. To do so, the majority of justices decided, would infringe on First Amendment rights. Levinson decries this decision.

Another major consequence of the rise of the initiative and referendum process is the marginalization of legislators -- already a group that does about as well in public approval polls as, say, a pack of ravenous coyotes would do if ranked by hill-dwelling poodles.

"Because we don't trust our legislators, we put more constraints on them. So then they have a harder time doing their job," Levinson says, describing what she labels as a vicious cycle. "So then we say, 'They do a terrible job' and then we put more constraints on them."

Those constraints, Levinson and others point out, include initiatives that: withhold legislators' pay for failing to pass budgets on time, strip legislators' responsibilities for drawing voting districts, and guarantee that a large portion of the state's income -- perhaps 33% of the entire budget according to this estimate and paper by USC's** John G. Matsusaka -- go only to certain sectors, such as education.

So since we the people don't want professional politicians making decisions on our behalf, then what's the matter with we the people making our own calls?

"One of the fundamental problems with the ballot initiative process is that it asks people a question -- 'Do you want this?' -- in isolation," Levinson says. "But it doesn't ask people whether they are willing to live with the consequences."

Ballot initiatives ask voters, 'Do you want this tax break?' or, "Do you want this increased program?' But then, Levinson says, "We don't ask people, 'Do you want the tax break if you then don't have this service?' or, 'Do you want this program if you then have higher taxes or fees?'"

Hate it or love it, Levinson is certain that after 101 years in effect, the initiative and referendum process is long since here to stay.

More than half of the nation's states possess some form of direct democracy, after all, although California's version is among the most direct and the most democratic. Levinson has written here, that thanks in part to these processes, the state Constitution has been changed more than 500 times. By comparison, the professor points out, that's nearly 2,000% more times than the U.S. Constitution has changed.

Could it possibly be that California's well-meaning and then-necessary reforms turn out -- as they did here -- to not always work as originally anticipated? And if that is the case, then what? Then mind wanders... If only there was some other possibility...

"If we have a system of representative democracy," Levinson says, "then barring extraordinary circumstances, it makes sense to adhere to that system."

**Jeremy Rosenberg has written for LMU and works at USC

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