BILL ANALYSIS
ACA 13
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Date of Hearing: June 23, 2009
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
ACA 13 (Hernandez) - As Amended: June 16, 2009
SUBJECT : Initiatives.
SUMMARY : Establishes an indirect initiative process.
Specifically, this measure :
1)Requires the Secretary of State (SOS) to transmit an
initiative measure to the Legislature prior to the
certification of the signatures of electors once signatures
have been gathered from the following number of voters:
a) A number of signatures equal to five percent of the
votes cast for candidates for Governor at the last
gubernatorial election in the case of a statute; or,
b) A number of signatures equal to eight percent of the
votes cast for candidates for Governor at the last
gubernatorial election in the case of an amendment to the
state constitution.
2)Requires an initiative measure that is transmitted by the SOS
to the Legislature to be assigned to the appropriate
committees in the Senate and Assembly for analysis. Requires
those committees to commence joint public hearings on the
subject of the initiative within 20 legislative session days.
3)Permits the Legislature to enact into law any initiative
measure transmitted to it pursuant to this measure by bill if
the initiative measure is a statute only. Provides that if
the bill is enacted as a statute and the initiative proponents
accept any amendments of the Legislature and so informs the
SOS, the initiative measure shall not be submitted to the
electors.
4)Permits the Legislature to amend any initiative in a manner
consistent with the initiative prior to the appearance of that
initiative on the ballot by the adoption of a concurrent
resolution.
5)Permits the Legislature to return a proposed initiative
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measure to the SOS to be placed on the ballot through the
adoption of a concurrent resolution. Requires a majority vote
of the Legislature to adopt such a concurrent resolution for a
statutory initiative, and requires a two-thirds vote of the
Legislature to adopt such a concurrent resolution for an
initiative that amends the state constitution.
6)Provides that if the Legislature does not return the
initiative measure to the SOS within 30 legislative session
days after the measure is transmitted to the Legislature, the
SOS shall submit the measure to the electors only if the
measure is certified, on or after that deadline, to have been
signed by electors equal in number to 10 percent in the case
of a statute, and 16 percent in the case of an amendment to
the Constitution, of the votes for all candidates for Governor
at the last gubernatorial election. Requires that the
proponents of the initiative measure be provided the
opportunity subsequent to that deadline, as specified by
statute, to gather additional signatures of electors.
7)Provides that, for the purposes of this constitutional
amendment, "legislative session day" means a day on which the
Members of both houses of the Legislature are required to be
in Sacramento to attend a session of the Legislature.
EXISTING LAW :
1)Permits voters to propose statutes or amendments to the
Constitution by initiative. Requires an initiative petition
to contain a number of signatures equal to five percent of the
votes cast for candidates for Governor at the last
gubernatorial election in the case of an initiative that
amends or enacts a statute for that initiative to appear on
the ballot. Requires an initiative petition to contain a
number of signatures equal to eight percent of the votes cast
for candidates for Governor at the last gubernatorial election
in the case of an amendment to the state constitution for that
initiative to appear on the ballot.
2)Requires the SOS to submit statewide initiative measures to
the voters at the next general election held at least 131 days
after they qualify or at any special statewide election held
prior to that general election.
3)Permits the Governor to call a special statewide election on
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any initiative measure.
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of the Constitutional Amendment : According to the
author:
The initiative process was created in an attempt to prevent
special interest/corruption from influencing state law and
policy. The process was to give the Californian voter more
power, more influence, and a stronger voice.
However, over time the looseness of the procedure for
placing initiatives on the ballot has allowed loopholes for
special interest groups to gain influence, the exact
opposite of the initiative process' original intent. As a
result, the system is now corrupted. Instead of giving
power to the voter, the process often results in California
voters feeling overwhelmed and confused by measures
included on the ballot. A recent PPIC report released
December 2008 revealed that a majority (63%) of California
voters felt they could not adequately deal with the many
proposals typically included in any given election.
This report also revealed compelling evidence that
Californians favor some type of reform to the current
initiative process. In fact, the report found that
California voters support proposals reforming the
time/duration in which the Legislature and the initiative's
proponent(s) could try to reach a compromise solution
before the initiative reaches the ballot.
Voters also support adopting a standard system of review
and revision of all proposed initiatives-this process would
address or avoid potential legal issues and drafting errors
before the measure is placed before voters. This topic was
highlighted in last year's Center for Governmental Studies
Report, "Democracy by Initiative: Shaping California's
Fourth Branch of Government." The CGS report stressed the
importance of implementing a formal process for drafting
and revising initiative measures-this will ensure quality
control of any measure placed in front of voters. Far too
often, initiatives placed on the ballot are vague,
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contradictory, and sometimes even unconstitutional. There
have been countless instances of unforeseen consequences or
unexpected interpretations due to ambiguous language of a
voter-approved ballot measure. Proposition 13 (1978), a
measure relating to property taxes, illustrates how poorly
drafted language creates an array of unforeseen problems.
ACA 13, to address this issue, would provide the
Legislature with the ability to thoroughly analyze and, if
necessary, amend an initiative measure before it is placed
on the ballot. If proponents accept the Legislature's
amendments to their ballot measure, proponents may withdraw
their initiative from the ballot and allow the Legislature
to enact their proposal.
If proponents accept legislative amendments and decide to
withdraw their initiative measure from the ballot, the
Legislature would adopt the measure through a floor vote in
both houses. Any measure proposing a new statute or
changing a current statute must be approved with a majority
vote from members in both houses. A measure proposing an
amendment to the Constitution must be approved with a
two-thirds vote from members in both houses.
Should the proponents not agree to the Legislature's
proposed amendments, the proponents may place the measure
on the next statewide ballot only if the initiative measure
is certified to have been signed by a specified percentage
of electors; 10% in the case of a proposed statute, and 16%
in the case of a proposed constitutional amendment.
2)Indirect Initiative Background : According to the National
Conference of State Legislatures (NCSL), eight states
currently offer some form of an "indirect" initiative process.
Maine, Michigan, Nevada, Ohio, Utah, and Washington provide
for an indirect initiative process for statutory initiatives
only; Mississippi provides the process only for constitutional
amendment initiatives while Massachusetts includes both
statutory and constitutional amendment initiatives.
In the indirect initiative process, a proposed initiative is
referred to the legislature after proponents have gathered the
required number of signatures. The legislature has the option
to enact, defeat or amend the measure. Depending on the
legislature's action, the proponents may continue to pursue
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placement on the ballot for a popular vote. In three states
(Massachusetts, Ohio and Utah), proponents must gather
additional signatures to place the measure on the ballot; in
the others, it automatically goes to the ballot.
Alaska's and Wyoming's initiative processes are sometimes cited
as indirect. However, instead of requiring that an initiative
be submitted to the legislature for action, they require only
that an initiative cannot be placed on the ballot until after
a legislative session has convened and adjourned, thus
providing the legislature with the opportunity to address the
issue if it so chooses.
Two states - Utah and Washington - offer both the direct and
indirect initiative process; proponents have the option of
choosing either. In Utah, the initial signature requirement
is lower for the indirect process. This serves as an
incentive for proponents to choose the indirect route and thus
incorporate the legislature into the process. Qualifying an
initiative directly to the ballot requires signatures equal to
10 percent of the votes cast for governor in the last
election; presenting an indirect initiative to the legislature
requires signatures equal to 5 percent of the votes cast for
governor in the last election. However, if the indirect
initiative is rejected by the legislature, proponents must
gather additional signatures equal to 10 percent of the votes
cast for governor, creating a total signature threshold for
indirect initiatives that is higher than that for direct
initiatives. As a consequence, use of Utah's indirect
initiative is significantly lower than use of the direct
method.
California had an indirect initiative process until 1966. It
was available in addition to the direct process, and
proponents were permitted to choose the process they
preferred. However, the indirect option was used successfully
only once, and voters approved its abolition in 1966.
The NCSL further states that the indirect initiative is
frequently offered as an improvement over the direct
initiative because it allows for legislative analysis,
committee hearings and floor debate. Legislative deliberation
and debate on the issue itself and its effect on other
existing policies may result in an improved initiative
proposal because unintended consequences and errors may come
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to light.
Pitfalls exist in the indirect initiative process, however,
which prevent it from being a panacea to the problems of the
initiative. The main argument against the indirect initiative
is that, where the process is currently offered, legislatures
rarely take up the initiative proposal and, when they do, they
almost always reject initiative proposals. Rarely do they
engage in negotiation with initiative proponents and seek to
craft a compromise. Most often, indirect initiatives are
rejected by the legislature and end up on the ballot for a
popular vote; the indirect process has done little but prolong
the initiative process.
3)Speaker's Commission on the California Initiative Process : In
2000, then-Assembly Speaker Robert M. Hertzberg created a
commission on the California initiative process. The goal of
the Commission was to examine the initiative process and
recommend changes to make the process more responsive to voter
concerns. The Commission issued its final report in January
2002. Among the recommendations proposed by the Commission
was the creation of an indirect initiative process that would
allow the Legislature to enact an initiative into law, with
the proponents consent, thereby removing the need for the
initiative to go to the ballot.
In stating the desirability of creating an indirect initiative
process, the Commission noted that when drafting problems are
discovered in an initiative being circulated, there is no
process for correcting such mistakes. The Commission's report
argued that allowing the Legislature to review initiative
measures, and make minor changes or suggestions for changes to
such measures, could reduce technical problems or unintended
consequences in initiative measures.
There is one key difference, however, between this proposal and
the recommendation by the Commission for the creation of an
indirect initiative process. While this measure provides that
all initiatives would be subject to Legislative review, the
Commission recommended that the indirect initiative process be
voluntary.
4)Should Initiative Proponents Have the Final Say ? This measure
gives the proponents of an initiative measure the
unconditional authority to allow an initiative to be withdrawn
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from the ballot by endorsing a bill that has been approved by
the Legislature that the proponents determine is consistent
with the intent of the initiative measure.
It is unclear whether the proponents of an initiative measure
should have this unconditional authority. The initiative
process is the power of the electors to propose statutes and
amendments to the Constitution, and to approve or reject them.
The hundreds of thousands of voters who signed petitions to
place the initiative measure on the ballot would have no
recourse if they did not agree with the proponents that the
bill approved by the Legislature was consistent with the
intent of the initiative measure.
However, such a situation is already possible under existing
law. It is not uncommon for initiative proponents to collect
more than enough signatures than necessary to qualify an
initiative for the ballot, but to delay turning in some of
those signatures in the hopes of prompting the Legislature to
adopt a bill or constitutional amendment that is consistent
with the purposes of the initiative measure. If the
Legislature fails to act, the proponents submit the signatures
and the initiative measure qualifies for the ballot. If the
Legislature adopts a bill or constitutional amendment that is
consistent with the purposes of the initiative measure, the
proponents do not submit the remaining signatures, and the
initiative measure fails to qualify for the ballot. In this
scenario, which already occurs under existing law, those
voters who signed petitions to place the initiative measure on
the ballot have no recourse if they do not agree with the
proponents that the bill or constitutional amendment approved
by the Legislature was consistent with the intent of the
initiative measure.
5)Amendments Consistent with the Intent of the Measure : This
constitutional amendment allows the Legislature to amend any
initiative measure before it appears on the ballot, provided
that such amendments are "consistent with the intent of the
measure." It is unclear, however, who would make a
determination about whether amendments adopted by the
Legislature were consistent with the intent of the measure.
If such a determination were left to the Legislature, it is
unclear what recourse the initiative proponents would have if
they disagreed with the determination that the amendments were
consistent with the initiative. The committee may wish to
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consider amending this measure to allow amendments that are
consistent with the initiative only if the proponents of the
initiative measure agree with those amendments.
6)Doubling the Signature Threshold : For any initiative measure
that is not returned by the Legislature to the SOS under the
provisions of this constitutional amendment, the net effect of
this measure will be to double the number of signatures
necessary for that initiative measure to appear on the ballot.
7)Technical Issue : Recent amendments to this measure added a
cross reference to a portion of the measure to make it clear
that the Legislature had to act within 30 legislative days on
any statutory initiative. However, those amendments did not
make a corresponding cross reference in the section of the
measure dealing with initiative constitutional amendments. To
correct this inconsistency, committee staff recommends the
following amendment:
On page 3, line 28, after "State" insert "pursuant to
subdivision (e)".
8)Arguments in Opposition : In opposition to this constitutional
amendment, Capitol Resource Family Impact writes, "ACA 13
makes it more difficult for the people to amend their
constitution and pass laws via the initiative process by
increasing the amount of signatures required for qualifying
the measure. It also inserts the legislature into the
initiative process, a direct violation of the purpose for the
constitution's initiative provision."
9)Previous Measures : ACA 18 (Nation) of 2005 proposed
establishing an indirect initiative process. ACA 18 was
approved by this committee on a 4-2 vote, but was never
brought up for a vote on the Assembly Floor.
10)Related Measures : SCA 10 (Ducheny) and SCA 16 (DeSaulnier)
both propose to establish an indirect initiative process. SCA
10 was approved by the Senate Elections, Reapportionment and
Constitutional Amendments Committee by a 3-2 vote, and is
pending in the Senate Appropriations Committee. SCA 16
(DeSaulnier) is pending in the Senate Elections,
Reapportionment and Constitutional Amendments Committee.
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11)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
Capitol Resource Family Impact
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094