BILL ANALYSIS
SENATE COMMITTEE ON ELECTIONS, REAPPORTIONMENT AND
CONSTITUTIONAL AMENDMENTS
Senator Loni Hancock, Chair
BILL NO: SCA 10 HEARING DATE:
6/16/09
AUTHOR: DUCHENY ANALYSIS BY:
Darren Chesin
AMENDED: AS INTRODUCED
FISCAL: YES
SUBJECT
Statewide initiative measures: legislative amendment
DESCRIPTION
Existing law , pursuant to the California Constitution,
requires the Secretary of State (SOS) to submit statewide
initiative measures 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. The
Governor may also call a special statewide election on the
measure. There is no mechanism for amending an initiative
once it has been approved for circulation by the SOS or
once it has qualified for the ballot.
Existing statutory law requires the appropriate committees
of the Legislature to conduct joint public hearings of any
initiative measure which has qualified for the ballot.
These hearings are for informational purposes only and must
be held at least 30 days prior to the election.
This constitutional amendment would permit the Legislature
to propose amendments to initiatives that amend the
Constitution which may be accepted by the proponents.
Specifically, this measure would provide for all of the
following:
The SOS must transmit a copy of each initiative
constitutional amendment measure that has qualified for
the ballot to the Legislature no later than 176 days
prior to the date of the relevant election.
Within 30 days of receipt of the initiative, the
Legislature may propose an amended form of the initiative
by adopting a concurrent resolution by a majority vote in
each house.
If a certified initiative measure proposes both a statute
and amendment to the Constitution, the concurrent
resolution may propose changes to both the statutory and
constitutional provisions of the measure. Amendments
proposed by the Legislature may only address the subject
matter contained in the original initiative.
If the proponent, or a majority of the proponents,
accepts the Legislature's amendments no later than 131
days prior to the date of the election, that amended
version will be placed on the ballot in place of the
original version.
If the Legislature's amendments are not accepted by that
date that substitution shall not occur, but information
regarding the proposed amendments shall be included in
the ballot materials relating to the initiative measure,
as may be prescribed by statute.
In order to facilitate this process, an initiative
measure that proposes to amend the Constitution shall be
submitted by the SOS at the next general or special
statewide election held at least 176 days after the
measure qualifies instead of the current 131 days.
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
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measure. Depending on the legislature's action, the
proponents may continue to pursue 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.
In several states (Maine, Massachusetts, Michigan, Nevada
and Washington), it is specifically provided for in law
that the legislature may place an alternate proposition on
the ballot with the initiative. Voters may vote for one or
the other or for neither.
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
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preferred. The indirect option was rarely used, and voters
approved its abolition in 1966.
Nevada currently has an indirect process for statutory
initiatives. At one time, it also had the indirect process
for initiative constitutional amendments, but it abolished
this option in 1962. Voters approved a constitutional
amendment referred by the legislature that abolished the
indirect process for constitutional amendments and at the
same time imposed the requirement that any constitutional
amendment be approved by a majority vote in two successive
elections.
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 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 protract the initiative
process.
The NCSL maintains that in spite of its pitfalls, the
indirect initiative process is more desirable than the
direct initiative process because it allows for more public
debate and deliberation, and it involves the legislature,
with its professional research and bill drafting staff, in
the process.
COMMENTS
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1.According to the author , lack of legislative review has
resulted in the state and/or federal courts either
partially or fully striking down 18 of the 41
constitutional and statutory initiative measures approved
by California voters between 1964 and 1996. SCA 10 seeks
to provide a way for the Legislature and the public to
participate (by way of hearings) in the analysis of an
initiative, while still allowing the initiative proponent
to have control over their measure.
2.This measure applies only to initiatives that either only
amend the Constitution or ones that amend both the
Constitution and statutes. The author and the Committee
may wish to consider whether SCA 10 should be amended to
also include initiatives that amend only statutes.
3.This measure is similar in intent to SCA 16 (De Saulnier)
which is scheduled to be heard in this Committee on July
7, 2009 and ACA 13 (Hernandez) which is pending in
Assembly policy committee.
POSITIONS
Sponsor: Author
Support: None received
Oppose: California Taxpayers' Association
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