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Law Offices of Stuart M. Flashman

Elections Law

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California Elections Law, focusing on ballot measures

Initiative
 
In 1911, Governor Hiram Johnson prodded the legislature to place on the ballot a set of constitutional amendments establishing the rights of initiative and referendum.  California has never been the same since.
 
Governor Johnson pushed through the initiative process as an antidote to the overpowering financial and political power of the railroads, who practically owned the normal legislative process.  Through time, the initiative has continued to be the "people's power", especially at the local level.  At the statewide level, by contrast, the initiative process has been commercialized to the point where almost anything can be put on the ballot, as long as the backers have enough money to pay signature gatherers and political consultants.  Governor Johnson is probably spinning in his grave.
 
The initiative process appears deceptively simple -- write up a measure, circulate it on a petition to get enough signatures to qualify (in most cases, 10% of the registered voters in the jurisdiction, submit the petitions, have the signatures validated, and Bingo!  Your measure's on the ballot!
 
The devil, unfortunately, is in the details.  During one of California's frequent contitutional revisions, the voters approved allowing the legislature to establish the procedural framework for initiatives and referenda by statute.  The legislature has happily stepped in and created a confusing morass of laws with inexplicable inconsistencies between the procedures for local, county, and statewide measures.  The courts have attempted to clarify the situation, but more often than not, they've just made matters worse.
 
Sadly, the time when a few citizens with pens and clipboards could go out an make a new law have passed.  Especially of a measure would offend a moneyed special interest, initiative proponents can almost count on a legal challenge based on claimed procedural and substantial improprieties.  That means having to spend time and money ensuring that all the i's are dotted and the t's crossed.  It also means having to spend even more money in the courtroom defending the measure against legal challenge.
 
Nevertheless, when initiative drives are successful, the results can be immensely satisfying.  Everyone knows how fundamentally California was changed by Proposition 13, but Proposition 65 has also had profound effects in the way people deal with toxic substances in California.  California has an insurance commissioner because of an initiative measure.  San Francisco has ranked-choice voting because of an initiative measure.  Many cities have orban growth boundaries only because of initiative measures.  The initiative process may be flawed, but it's still better than nothing.

Referendum
 
If the initiative is the people's sword to fight against special interests, the referendum is the people's shield.  The referendum allows the voters to have the last say about proposed legislation.  When a referendum is successful, it delivers a slap on the wrist of the legilsative body.  In more exteme cases, a referendum can signal enough disatisfaction with the legislative body to trigger the third type of ballot measure -- a recall.
 
Thankfully, the procedures for a referendum are considerably simpler than those of an initiative.  That's a good thing, because on local measures, a referendum's sponsors have only thirty days to gather the signatures of 10% of the registered voters.  In a small town, that may not be too difficult.  In larger cities, though, it's a difficult task, especially when cities are closely spaced, so half of the people being approached aren't residents of the city involved, and when a significant proportion of urban residents aren't even registered to vote.
 
The use of paid circulators has led to numerous legal challenged to referendum drives.  Until recently, a favorite tactic was to charge that signature gatherers weren't properly registered voters in the city involved.  Under California law, to be registered to vote in a jurisdiction ,one must establish ones domicile there -- meaning a permanent residence.  However, many signature gatherers are what might be called "migrant election workers".  They travel about the state to wherever the next campaign is happening.  As with farmworkers, it's difficult to say where there permanent residence would be.  Luckily, a California court of appeal has just recently held that California's residency requirement for signature gatherers violates the U.S. Constitution's First Amendment right of free speech.

Recall
 
Of all the ballot measure campaigns, the recall is by far the most vitriolic.  While a referendum tosses out enacted legislation, a recall tosses out the legislator (or, for that matter, other elected official, including judges).
 
The procedural requirements for conducting a recall are complex, and the number of signatures required is greater than for either initiative or referendum.  (For cities with over 100,000 registered voters, the requirement is the same -- 10%.)  That's probably appropriate, because a recall is an extreme measure and the repercussions can also be severe.
 
In most cases, a recall is initiated because an elected official did something either improper or highly unpopular. 

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Law Offices of
Stuart M. Flashman
5626 Ocean View Drive
Oakland, CA 94618-1533
(510) 652-5373 (voice & fax)
 
 
 
last updated:  November 17, 2008