BILL ANALYSIS Ó
ACA 6
Page 1
Date of Hearing: August 27, 2014
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
ACA 6 (Gatto) - As Amended: August 21, 2014
RE-REFERRED TO COMMITTEE PURSUANT TO ASSEMBLY RULE 77.2
PRIOR COMMITTEE CONSIDERATION:
ELECTIONS 5-2 APPROPRIATIONS 12-5
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|Ayes:|Fong, Bocanegra, Bonta, |Ayes:|Gatto, Bocanegra, |
| |Hall, Weber | |Bradford, |
| | | |Ian Calderon, Campos, |
| | | |Eggman, Gomez, Hall, |
| | | |Ammiano, Pan, Quirk, |
| | | |Weber |
| | | | |
|-----+--------------------------+-----+--------------------------|
|Nays:|Donnelly, Logue |Nays:|Harkey, Bigelow, |
| | | |Donnelly, Linder, Wagner |
| | | | |
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SUBJECT : Constitutional amendments: voter approval.
SUMMARY : Requires a measure that amends or revises the state
constitution to receive 55% of the vote in order to be approved,
unless the measure reverses a previously adopted constitutional
amendment or revision, as specified. Specifically, this
constitutional amendment :
1)Requires a proposed amendment or revision of the state
constitution, except as provided below, to receive a minimum
of 55% of votes cast thereon in support in order to be
approved.
2)Provides that a proposed amendment or revision of the state
constitution may be approved by a majority of the votes cast
thereon if the sole effect of that amendment or revision is to
reverse one or more of the changes made to the constitution by
a previous amendment or revision that, prior to the operative
date of this measure, was adopted by a majority of the votes
cast thereon.
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EXISTING LAW provides that a constitutional amendment or
revision shall take effect if approved by a majority of votes
cast thereon.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, one-time General Fund costs of about $220,000 to
include an analysis of this measure, and arguments for and
against the measure, in the state voter information guide.
COMMENTS :
1)Initiatives vs. Ballot Measures : Although the terms
"initiative" and "ballot measure" are sometimes used
interchangeably, the two terms are not synonymous. An
"initiative" is a measure that qualifies to appear on the
ballot through the presentation of petitions containing the
signatures of a specified number of voters. All initiatives
that qualify for the ballot are "ballot measures." However,
the term "ballot measure" includes not only initiatives, but
also includes referenda, recall measures, and measures placed
on the ballot by the Legislature.
Proposals to amend the California Constitution can be placed on
the ballot in two different ways. Voters may propose to amend
the constitution through an initiative measure by presenting
the Secretary of State with a petition that sets forth the
text of the proposed amendment to the Constitution that is
certified to have been signed by electors equal in number to
8% of the votes for all candidates for Governor at the last
gubernatorial election. Constitutional amendments placed on
the ballot in this manner are "initiative constitutional
amendments." Alternately, the Legislature may place a
proposed amendment to or revision of the Constitution on the
ballot by a two-thirds vote of each house. Constitutional
amendments that are placed on the ballot in this manner are
"legislative constitutional amendments."
2)Prior Committee Consideration of This Measure : In May of last
year, this committee considered and approved this measure on a
5-2 vote. At that time, this measure would have required
initiative constitutional amendments, but not legislative
constitutional amendments, to receive at least 55% of the vote
in order to be approved. Subsequent to the committee's
approval of this measure, it was amended on the Assembly Floor
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to increase the vote requirement for legislative
constitutional amendments, in addition to affecting the vote
threshold for initiative constitutional amendments. After the
adoption of those amendments, this measure was re-referred to
this committee for further consideration pursuant to Assembly
Rule 77.2.
3)Purpose of the Measure : According to the author:
ACA 6 requires any constitutional amendment that adds
any new sections pass with a 55% supermajority in
order to achieve parity with both the California
legislative threshold and come close to the US
Constitutional threshold. The straight repeal of any
sections, however, would occur by the same threshold
that was required to insert that language into the
Constitution.
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 a higher pedestal-just as we do with
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? constitutional
amendments to protect the document's sacredness.
4)Constitutional Amendment History : Since 2004, California
voters have voted on 99 ballot measures. Of those 99
measures, 47 proposed to amend the state constitution. During
that time, about 45% of ballot measures that amended the
constitution were approved, compared to 48% of ballot measures
that did not propose to amend the constitution.
5)Supermajority Vote Requirement : 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
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voters, it would mark the first time that any measure that
appears on the statewide ballot would require more than a
simple majority to be approved by voters.
Among the high profile ballot measures that passed and amended
the constitution, 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);
Proposition 11 of 2008 (redistricting commission); and
Proposition 14 of 2010 (top two primary).
6)Other States : According the National Conference of State
Legislatures, all states except Delaware require voter
approval in order to adopt a proposed amendment to the state
constitution. While almost all states require a supermajority
vote of the legislature in order to propose a constitutional
amendment to the voters, most states permit the voters to
adopt a proposed constitutional amendment by a simple majority
vote.
In fact, just one state-Florida-requires a supermajority vote
for the approval of any constitutional amendment. 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% of voters in order to take effect.
Additionally, 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.
Other states do require a supermajority vote to approve a
constitutional amendment in certain circumstances, however.
In Illinois, 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 40%) of the total votes cast in the
election. Constitutional amendments proposed by the
Legislature in these three states require a simple majority to
pass.
Nevada does not require a supermajority vote on constitutional
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amendments, but initiative constitutional amendments must
receive a majority vote at two consecutive general elections
in order to pass. Constitutional amendments that are proposed
by the Legislature, however, do not need to be approved at two
consecutive elections.
7)Status Quo Bias ? Under a provision of this measure, a
previously approved constitutional amendment that required a
majority vote of the people at the time that it was adopted
could be reversed by a majority vote. That provision ensures
that a majority of the voters today can reverse an action that
was approved by a slim majority of voters at some point in the
past.
Any change to a previously adopted constitutional amendment
other than a reversal, however, would require 55% of the vote
in order to be approved. For example, Proposition 98, dealing
with school funding, received 50.7% of the vote at the 1988
statewide general election. While this measure would allow
Proposition 98 to be reversed by a simple majority of voters,
a proposal to change the school funding formulas contained in
Proposition 98 would require 55% of the vote.
Similarly, Proposition 11, dealing with redistricting, received
50.9% of the vote in 2008. Although this measure would allow
Proposition 11 to be reversed by a majority vote, a proposal
to change the criteria used by the Citizens Redistricting
Commission when creating Legislative, Congressional, and Board
of Equalization districts would require 55% of the vote. If
voters in the future wished to retain the major elements of
Proposition 11 while making changes to certain aspects of that
measure, it would require 55% of the vote to approve such
changes, even though those elements were added to the
constitution by a measure that received less than 55% of the
vote. In essence, this measure would permit the policy
preferences of less than 51% of the voters in 2008 to prevail
over the policy preferences of 54.9% of the voters at a future
election.
Notwithstanding the fact that this measure allows previously
adopted constitutional amendments to be reversed by a majority
vote, by making it more difficult to amend previously adopted
constitutional amendments, this measure nonetheless may
prejudice the constitution in favor of policies that were
adopted by a slim majority of the voters in prior elections.
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8)Arguments in Opposition : In opposition to this measure, the
Howard Jarvis Taxpayers Association writes:
ACA 6 represents the gravest attack to the initiative
process in years. It strips away the ability of the
people to engage in the democratic process when the
Legislature refuses to confront important issues,
including increased property taxes. Such was the case
in 1978 prior to the passage of Proposition 13, when
seniors on fixed incomes were getting foreclosed on
their homes because they couldn't pay the property
taxes. Thousands were able to continue to live out
the American Dream as a direct result of the
initiative process.
As drafted, ACA 6 makes it harder for individuals to
engage in this process. It could lead to majority
vote attacks to eliminate the entirety of Proposition
13, or create a split roll commercial property tax.
Any attempt to restore or protect against future
loopholes created by the legislative or judicial
branches of government would require a 55% vote. Under
such a scenario, Proposition 26, a 2010 constitutional
amendment would not have been approved.
The language of ACA 6 is plagued by the same ambiguity
as previous versions. Under this language, a brand
new provision added to the constitution (which should
need 55% approval under this bill) could be passed
with a simple majority if lawyers convinced a court
that the sole effect of the new language was to
"reverse changes made" to the Constitution by a
previous amendment. For example, the new provision
need only start with the phrase, "Notwithstanding
Article XIII A ..." In this way, the new provision
could do much more than simply delete an existing
provision of the constitution (like Proposition 13)
and could replace it with a whole new policy or
program.
9)Previous Legislation : ACA 11 (Gatto) of the 2011-12
Legislative Session, would have required initiative
constitutional amendments, but not legislative constitutional
amendments, to receive 55% of the vote in order to be
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approved, except as specified. 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% of the vote in order to be
approved, except as specified, 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.
10)Approval of Voters : As a constitutional amendment, this
measure requires the approval of the voters to take effect.
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REGISTERED SUPPORT / OPPOSITION :
Support
None on file.
Opposition
American Council of Engineering Companies California
Associated General Contractors of California
Association of California Life & Health Insurance Companies
California Apartment Association
California Association of Bed & Breakfast Inns
California Business Properties Association
California Business Roundtable
California Chamber of Commerce
California Hotel & Lodging Association
California Manufacturers and Technology Association
California Taxpayers Association
Howard Jarvis Taxpayers Association
National Federation of Independent Business
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094