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What Happened to Prop. 49? Calif. Supreme Court Cut It in Aug.

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By Mark Wilson, Esq. on October 03, 2014 11:20 AM

This is the fourth in a series about this year's California ballot propositions. Today, we discuss what happened to an initiative that was removed from the ballot, Proposition 49.

Notably absent (or maybe not) from this November's list of state ballot initiatives is Proposition 49, which would have called on the U.S. Congress to enact a constitutional amendment overturning Citizens United v. FEC. A laudable goal, to be sure: Citizens United, like herpes, is the gift that keeps on giving.

But even by the standards of California's wacky initiative system -- which lets millionaires give themselves property tax breaks and a simple majority of voters take away fundamental rights -- Prop. 49 was just a bridge too far for the California Supreme Court.

It's Only Advisory

In an Order to Show Cause filed August 11, the court, by a vote of 5-1, told Secretary of State Debra Bowen to remove Proposition 49 from the ballot, as its validity was seriously in question and the dispute wouldn't be settled by November 4.

Though the chair of the Yes on 49 committee lamented, "The Court continues to protect the rights of incorporated special interests while suppressing the voices of living, breathing human beings," the order was much less hysterical than that and had nothing to do with the merits of the proposition.

Prop. 49 is anomalous in that it began life as a State Senate bill which, when enacted, placed Prop. 49 on the ballot. The key question for the court was whether legislature could use the state referendum process to, essentially, poll the electorate.

In a concurring statement to the order, Justice Goodwin Liu explained the majority's reasoning: Proposition 49 was an "advisory question" not permitted by the initiative process. The state constitution allows three kinds of ballot measures: constitutional amendments, bond issuances, and amending or repealing previous initiative measures. Liu said that the initiative is not legislation: It asks Congress to propose a constitutional amendment and then asks the state legislature to ratify that amendment, but it places no affirmative duties on anyone.

Moreover, such an advisory question takes responsibility for the initiative off of the legislature: "If the citizenry adopts an initiative, it is entirely the handiwork of the citizenry for better or worse; the Legislature is not involved. But if the Legislature were to propose as statute for the voters to approve, the lines of accountability would be blurred."

Dissent: It's Not So Cut and Dry

Chief Justice Tani Cantil-Sakauye wrote a concurring and dissenting statement. She agreed with the court's decision to issue an Order to Show Cause, but disagreed that the initiative should be removed from the ballot. She believed the initiative's invalidity wasn't such a foregone conclusion that the question couldn't be left until after the election, which is the preferred method of adjudication (although looks where that's gotten us lately).

The harm to the initiative proponents if the initiative doesn't make to this ballot is real, she said, and weighing that against the judiciary's ability to decide the question after the fact, she would rather keep it on the ballot.

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