BILL ANALYSIS �
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Date of Hearing: June 19, 2012
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
ACA 10 (Gatto) - As Amended: April 9, 2012
SUBJECT : Initiative constitutional amendments: qualification
and approval.
SUMMARY : Requires signatures on a petition for a proposed
initiative measure to amend to the state Constitution to be
geographically distributed among at least 27 state Senate
districts, as specified, in order for that initiative to appear
on the ballot. 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 measure :
1)Provides that, in order for an initiative that amends the
state constitution to qualify for the ballot, the petition for
that initiative must include signatures from each of 27 of the
Senatorial districts in the state equal in number to eight
percent of the votes cast for candidates for Governor in the
last gubernatorial election, in addition to including
signatures equal in number to eight percent of the votes cast
for candidates for Governor statewide.
2)Requires an initiative measure that proposes to amend the
state constitution to receive at least 55 percent of the votes
cast thereon in support in order to be approved, unless the
sole effect of the initiative is to repeal one or more
amendments to the Constitution previously approved by the
electors, in which case a majority vote is required.
3)Makes various corresponding and technical changes.
EXISTING LAW :
1)Permits voters to propose statutes or amendments to the
Constitution by initiative.
2)Requires a petition for an initiative that amends or enacts a
statute to contain a number of signatures equal to five
percent of the votes cast for candidates for Governor at the
last gubernatorial election in order for that initiative to
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appear on the ballot. Requires a petition for an initiative
that amends the state constitution to contain a number of
signatures equal to eight percent of the votes cast for
candidates for Governor at the last gubernatorial election in
order to appear on the ballot.
3)Provides that all constitutional amendments, whether placed on
the ballot by the Legislature or by an initiative, take effect
if approved by a majority of votes cast thereon.
FISCAL EFFECT : Unknown
COMMENTS :
1)Purpose of the Bill : According to the author:
ACA 10 proposes an amendment to the California
Constitution to require, in the case of an initiative
petition that proposes an amendment to the
Constitution, that the petition include signatures
from each of ? 27 of the State's Senate districts
equal in number to 8% of the votes cast for Governor
in that district in the last gubernatorial election.
The geographical distribution requirement does not
affect the total number of signatures that a petition
must gather to qualify for the ballot. Additionally,
ACA 10 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.
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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.
Furthermore, because California lacks a geographic
distribution requirement for petition signatures,
initiative proponents often gather all of their
signatures in the State's largest urban population
centers, permitting urban voters to decide which
initiatives make the ballot. Requiring signatures to
be gathered from urban and rural areas of the state
would force proponents to illustrate statewide
interest and appeal for their proposals, just as
ratification of U.S. constitutional amendments by 3/4
of the states ensures approval by the many states?.
ACA 10 is a reasonable measure that seeks to make
California's constitutional amendment process more
reflective of the national constitutional amendment
process by placing higher thresholds 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 58 initiative
measures. Of those 58 measures, 33 proposed amendments to the
state constitution. During that time, about 30 percent of
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initiative measures that amended the constitution were
approved, compared to between 32 and 36 percent of initiative
measures that made only statutory changes (depending on the
final outcome of Proposition 29 from the statewide primary
election held earlier this month).
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 52 initiative measures that proposed amendments to
the constitution, including Proposition 28 at the statewide
primary election earlier this month. Of this total, 35
received more than 55% of the vote. In the last 25 years, 12
of the 23 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 (NCSL), 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.
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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 2/3rds 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 3/5ths 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.
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.
According to information from NCSL, of the 24 states that have
the initiative process, 12 require some sort of geographic
distribution requirement for signatures on an initiative
petition in order for that measure to qualify for the ballot.
These geographic distribution requirements typically require
initiative proponents to collect a specified number of
signatures in a certain number of counties, legislative
districts, or congressional districts.
Although at least five states require initiative proponents to
gather a certain number of signatures from a specified number
of counties, federal courts have struck down other states'
laws that had county-based requirements. In 2001, the United
States District Court in Idaho ruled that an Idaho law that
required petition sponsors to collect a certain number of
signatures from registered voters in each of 22 counties was
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unconstitutional. In its ruling, the court found that the
distribution requirement was inconsistent with the Equal
Protection Clause to the United States Constitution because it
gave greater power to rural voters in more sparsely populated
counties (Idaho Coalition United for Bears v. Cenarrusa
(2001), 234 F.Supp.2d 1159). That decision subsequently was
upheld by the Ninth Circuit Court of Appeals in 2003 (Idaho
Coalition United for Bears v. Cenarrusa (2003), 342 F.3d
1073). Federal courts also struck down a similar county-based
geographic distribution law in Nevada for the same reasons.
On the other hand, earlier this year, the Ninth Circuit Court of
Appeals upheld a Nevada law that requires initiative
proponents to gather a certain number of signatures from each
of the state's congressional districts. Nevada adopted that
law after its county-based geographic distribution requirement
was struck down by federal courts. In its opinion upholding
the new Nevada law, the Court ruled that a congressional
district-based distribution requirement did not suffer from
the same deficiencies as the county-based distribution
requirement because the congressional district-based
requirement "grants equal political power to?districts having
equal populations," unlike the county-based requirement (Angle
et al. v. Miller (2012), No. 10-16707).
The distribution requirement contained in this bill is analogous
to the Nevada law that was recently upheld by the Ninth
Circuit Court of Appeals, because the geographic distribution
requirement is based on Senate districts that have equal
populations.
5)Related Legislation : ACA 9 (Gatto), which is pending in this
committee, would require 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 11 (Gatto) would require an initiative measure that amends
the state constitution to receive a 55 percent vote in order
to be approved, unless the measure repeals a previously
adopted constitutional amendment. ACA 11 was approved by this
committee on a 4-2 vote, but was held on the Assembly
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Appropriations Committee's suspense file.
6)Previous Legislation : As introduced, ACA 21 (Charles
Calderon) of 2009 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.
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
CalTax
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094