BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  ACA 6
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          Date of Hearing:   May 7, 2013

                  ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
                                  Paul Fong, Chair
                  ACA 6 (Gatto) - As Introduced:  February 11, 2013
           
          SUBJECT  :   Initiatives: constitutional amendments: voter  
          approval.

           SUMMARY  :   Requires an initiative measure that amends the state  
          constitution to receive 55 percent of the vote in order to be  
          approved, unless the measure repeals a previously adopted  
          constitutional amendment.  Specifically,  this constitutional  
          amendment  :  

          1)Requires an initiative measure that proposes to amend the  
            state constitution, except for a measure that repeals a  
            previously adopted amendment to the constitution, to receive a  
            minimum of 55 percent of votes cast thereon in support in  
            order to be approved.

          2)Provides that an initiative measure that proposes to repeal a  
            previously adopted constitutional amendment may be approved on  
            a majority vote.  Provides that the repeal of a previously  
            adopted amendment pursuant to this provision shall also be  
            deemed to repeal any subsequent amendments to that  
            constitutional amendment, but provides that this provision is  
            not applicable to repeal a previously adopted constitutional  
            amendment if the measure that contained any such subsequent  
            amendment also included one or more constitutional provisions  
            that did not amend the previously adopted amendment.

           EXISTING LAW  provides that all constitutional amendments,  
          whether placed on the ballot by the Legislature or by an  
          initiative, shall take effect if approved by a majority of votes  
          cast thereon.

           FISCAL EFFECT  :   Unknown.  Although this constitutional  
          amendment is keyed non-fiscal, this bill has been  
          double-referred to the Assembly Appropriations Committee.

           COMMENTS  :   

           1)Purpose of the Measure  :  According to the author:









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               ACA 6 increases the vote threshold for an initiative  
               constitutional amendment to 55% of the votes cast  
               thereon but maintains that a simple majority of voters  
               may repeal a previously adopted constitutional  
               amendment?.

               A constitution is the most fundamental document in any  
               government, holding within it the rights of the people  
               as well as the most basic rules by which the people's  
               business is conducted. Any change to it should not be  
               taken lightly. Even the founders of our nation thought  
               the concept of a constitution so sacred that they  
               wrote into the US Constitution a process of amendment  
               so difficult so as to ensure that it would only happen  
               when truly necessary. While the US Constitution has  
               been amended only 27 times in 223 years, California's  
               has been amended 521 times in 133 years. That is  
               because California makes it the easiest to amend its  
               Constitution of any of the 50 states. 

               The US Constitution does not permit initiatives. An  
               amendment must garner 2/3 approval of both houses of  
               Congress or a petition of 2/3 of the states, followed  
               always by ratification of 3/4 of the states. However,  
               in California, to put an amendment on the ballot,  
               initiative proponents need only gather signatures  
               equal in number to 8% of the votes cast for Governor  
               in the last gubernatorial election. Then, amendments  
               pass with just 50% + 1 of the votes cast. 

               A supermajority to amend the Constitution is different  
               from a supermajority to pass other laws. A  
               constitution is not a statute; it is a governing  
               document that sets forth basic rights and government  
               structures. If a constitution can be amended by a  
               simple majority, there is no constitution. Any reform  
               or any right can be altered or taken away in the very  
               next election. Had California's rules been in place  
               nationally, there are several times in history where  
               the public would have overturned the First Amendment?.

               ACA 6 requires any constitutional amendment proposed  
               by the electors that adds any new sections pass with a  
               two-thirds majority in order to achieve parity with  
               both the California legislative threshold and come  








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               close to the US Constitutional threshold. The straight  
               repeal of any sections, however, could still be done  
               by a simple majority.  Also, any constitutional  
               amendment put on the ballot by a two-thirds vote of  
               each legislative house would keep its majority vote  
               threshold at the ballot box.

               It is worth noting that supermajority thresholds have  
               already been approved by voters. The legendary  
               Proposition 13 included a provision that demanded a  
               2/3 vote for certain taxes. It is not unreasonable to  
               suggest that we put the process of amending the  
               constitution on the same pedestal as new taxes. Both  
               are highly important to the people of California and  
               should not be taken lightly.

               ACA 6 is a reasonable measure that seeks to make  
               California's constitutional amendment process more  
               reflective of the national constitutional amendment  
               process by placing a higher threshold for voters'  
               consideration and passage of initiative constitutional  
               amendments to protect the document's sacredness. 

           2)Initiative Constitutional Amendment History  :  In the last  
            decade, California voters have voted on 68 initiative  
            measures.  Of those 68 measures, 35 proposed amendments to the  
            state constitution.  During that time, about 31 percent of  
            initiative measures that amended the constitution were  
            approved, compared to 33 percent of initiative measures that  
            made only statutory changes.  
           
           3)Supermajority Vote Requirement  :  Under this measure, an  
            initiative constitutional amendment would require approval by  
            55 percent of voters statewide to take effect.  This  
            supermajority vote requirement would apply only to  
            constitutional amendments that are proposed through the  
            initiative process-that is, constitutional amendments that are  
            placed on the ballot after proponents gather a sufficient  
            number of signatures on an initiative petition.  The vote  
            requirement for constitutional amendments that are proposed by  
            the Legislature would not be affected by this measure.  

           Since the creation of the initiative process, the voters have  
            approved 53 initiative measures that proposed amendments to  
            the constitution. Of this total, 36 received more than 55% of  








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            the vote. In the last 25 years, 13 of the 24 initiative  
            constitutional amendments approved by the voters have received  
            more than 55% of the vote. Among the high profile initiatives  
            that passed but did not receive 55% of the vote are:  
            Proposition 98 of 1988 (school funding); Proposition 140 of  
            1990 (term limits); Proposition 209 of 1996 (affirmative  
            action); Proposition 8 of 2008 (same-sex marriage); and  
            Proposition 11 of 2008 (redistricting commission). 

          Currently, all state ballot measures require a simple majority  
            to be approved by the voters, regardless of the changes to  
            state law made by the measure.  If this constitutional  
            amendment is approved by voters, it would mark the first time  
            that any measure that appears on the state ballot would  
            require more than a simple majority to be approved by voters.

           4)Other States  :  According to the National Conference of State  
            Legislatures, California is one of 24 states that have an  
            initiative process.  Of those 24 states, six states permit  
            initiatives for statutes only, three states permit initiatives  
            for constitutional amendments only, and the remaining 15  
            states permit initiatives both for constitutional amendments  
            and for statutes.  

          Of the 18 states that permit the state constitution to be  
            amended through the initiative process, only one state  
            requires all initiative constitutional amendments to be  
            approved by a supermajority in all circumstances.  In 2006,  
            Florida voters approved a constitutional amendment that  
            requires any future amendment to the Florida Constitution,  
            whether put on the ballot by initiative or by the Legislature,  
            to be approved by 60 percent of voters in order to take  
            effect.  Additionally, in Florida, any constitutional  
            amendment that imposes a tax or fee not in place in November  
            1994 must receive a two-thirds vote in order to pass.

          Certain other states do require a supermajority vote to approve  
            an initiative constitutional amendment in certain  
            circumstances, however.  In Illinois, initiative  
            constitutional amendments must pass by three-fifths of those  
            voting on the measure or by a majority of those voting in the  
            election.  Massachusetts, Mississippi, and Nebraska all permit  
            initiative constitutional amendments to pass on a majority  
            vote, provided that the total number of votes cast on the  
            initiative equals a specified threshold (ranging from 30% to  








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            40%) of the total votes cast in the election.

          Nevada does not require a supermajority vote on initiative  
            constitutional amendments, but initiative constitutional  
            amendments must receive a majority vote at two consecutive  
            general elections in order to pass.

           5)Previous Legislation  :  ACA 11 (Gatto) of the 2011-12  
            Legislative Session, was similar to this measure.  ACA 11 was  
            approved by this committee on a 4-2 vote, but was held on the  
            Assembly Appropriations Committee's suspense file.

          ACA 10 (Gatto) of the 2011-12 Legislative Session, would have  
            required an initiative measure that amends the state  
            constitution to receive 55 percent of the vote in order to be  
            approved, unless the measure repealed a previously adopted  
            constitutional amendment, among other provisions.  ACA 10 was  
            approved by this committee on a 4-1 vote, but failed passage  
            on the Assembly Floor.

            ACA 9 (Gatto) of the 2011-12 Legislative Session, would have  
            required an initiative that would increase the current vote  
            requirement for an action by either the electors or by the  
            Legislature, or would impose an extraordinary vote requirement  
            for the amendment of an initiative statute by the Legislature  
            without approval by the electors, to itself receive the same  
            affirmative vote percentage in order to be approved by the  
            electors.  ACA 9 was never voted on in this committee.  

             As introduced, ACA 21 (Charles Calderon) of the 2009-10  
            Legislative Session, would have required an initiative measure  
            that amended the state constitution to receive a two-thirds  
            vote in order to be approved.  ACA 21 was never voted on in  
            this committee in that form, but instead was amended to  
            address another issue. 

           6)Re-Referral to Appropriations :  Although this measure has been  
            keyed non-fiscal by the Legislative Counsel, it has been  
            double-referred to the Assembly Appropriations Committee.  In  
            recent years, non-fiscal constitutional amendments regularly  
            have been referred to the Assembly Appropriations Committee  
            because the state incurs costs to add additional pages to the  
            state ballot pamphlet whenever it places a measure on the  
            ballot for voter approval.  
           








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           7)Approval of Voters :  As a constitutional amendment, this  
            measure requires the approval of the voters to take effect.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          None on file.

           Opposition 
           
          None on file.
           
          Analysis Prepared by  :    Ethan Jones / E. & R. / (916) 319-2094