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Cal. Supreme Court Allows Advisory Ballots, Citizens United Vote

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By Casey C. Sullivan, Esq. on January 04, 2016 1:09 PM

The California state legislature may put fort nonbinding, advisory ballot measures, the state's Supreme Court ruled this morning. In a six to one ruling, the court found that the legislature has the power to poll the public through the ballot box, with questions that would not have any legal impact.

The ruling comes from Proposition 49, a measure proposed by the state legislature for the 2014 ballot but withdrawn after a conservative group sued, arguing that advisory measures were simply attempts to influence voter turnout. The ballot measure would have asked voters whether Congress should pursue a constitutional amendment to overrule the controversial Citizens United decision, though the actual vote would have no effect on state law, Congress, or the federal Constitution.

Polling Booth Meets Opinion Poll

The Supreme Court's ruling in Citizens United remains largely unpopular five years after it was issued. That ruling removed federal limits on corporate spending on political campaigns and opened up the ability to give unlimited donations to so-called super PACs, political groups who can spend money to influence elections so long as they do not coordinate directly with candidates.

Prop 49, had it made it on the 2014 ballot, would have asked California voters the following:

Shall the Congress of the United States propose, and the California Legislature ratify, an amendment or amendments to the United States Constitution to overturn Citizens United ... and other applicable judicial precedents, to allow the full regulation or limitation of campaign contributions and spending, to ensure that all citizens, regardless of wealth, may express their views to one another, and to make clear that the rights protected by the United States Constitution are the rights of natural persons only?

The vote would have been purely symbolic, but the California Supreme Court ruled, still within the powers of the legislature to propose. The court explained that the California legislature "has authority to conduct investigations by reasonable means to inform the exercise of its other powers," such as "the power to petition for national constitutional conventions" and amendments. That includes the ability to "formally consult with and seek nonbinding input from their constituents" through the ballot box.

A Future Full of Advisory Measures?

When the Howard Jarvis Taxpayers Association sued, they argued that the measure was simply an attempt to influence turnout. They probably weren't wrong, either. Binding ballot measures are often used to encourage voters to come to the polls during important elections. Karl Rove, for example, has been credited for engineering a series of state bans on gay marriage in the early 2000s, to help ensure Republican success on election day. Marijuana legalization advocates are looking to November 2016 to legalize cannabis -- and bring younger, more liberal voters to the polls.

Whether the court's ruling will lead to a glut of new advisory measures remains to be seen. The majority opinion, authored by Justice Goodwin Lui, limits the ruling to advisory measures that touch upon the state's Article V powers -- its ability to propose constitutional amendments to Congress.

But, Chief Justice Tania Cantil-Sakauye notes, that limitation might be false. In her concurrence she argues that "nothing in today's decision should be viewed as calling into question the validity of all types of statewide and local advisory ballot measures, even those completely unrelated to any proposed amendment to the federal Constitution."

In the meantime, the ruling makes it likely that Prop. 49 will be added to the November ballot, according to the San Jose Mercury News. Barring a sea change in public opinion, the measure is certain to pass.

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