BILL ANALYSIS �
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Date of Hearing: May 17, 2011
ASSEMBLY COMMITTEE ON ELECTIONS AND REDISTRICTING
Paul Fong, Chair
ACA 11 (Gatto) - As Amended: May 10, 2011
SUBJECT : Initiatives: constitutional amendments: voter
approval.
SUMMARY : Requires an initiative measure that amends the state
constitution to receive a two-thirds 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 two-thirds of the 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 Committee has been
instructed to re-refer it to the Assembly Appropriations
Committee, if it is approved in this Committee.
COMMENTS :
1)Purpose of the Constitutional Amendment : According to the
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author:
When a constitutional amendment originates from the
Legislature, it is subjected to the highest scrutiny and a
series of checks-and-balances. It must survive, at the
very least: policy committee in the house of origin, fiscal
committee in the house of origin, 2/3 vote in the house of
origin, policy committee in the second house, fiscal
committee in the second house, 2/3 vote in the second
house, and a vote of the electorate. That is 7 steps for a
constitutional amendment to make its way from the
Legislature to the ballot for voter consideration. These
steps ensure a deliberative process that is designed to
craft the best possible changes to a document that reflects
the fundamental laws that govern us.
This is in stark contrast to a constitutional amendment via
initiative.
When a constitutional amendment originates from the
signature gathering process it is subject to only two
steps: signature gathering and a majority vote of the
electorate. There is no deliberation. There is no
vetting. There is no testimony. All of these are replaced
by commercials and 30 second soundbites that often distort
the issues and appeal to the lowest common denominator.
There are no real constitutional checks and balances, save
for potential legal challenges. An initiative to amend the
constitution requires one thing: money, and lots of it. It
is no wonder that the initiative process has increasingly
become the tool of choice for people who want to change
state policy without having to navigate the legislative
process. Those monied interests Hiram Johnson and the
Progressives sought to protect us against with the
initiative now use the initiative to forward their
interests. This is important to note, as constitutional
amendments, once approved by voters are "set in stone"
barring another constitutional amendment. This means that
regardless of drafting errors or unintended consequences,
the legislature is unable to act on them. This phenomenon
is an erosion of legislative power.
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
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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?
ACA 11 is a reasonable measure that seeks to uphold the
primacy of the California Constitution by providing the
seemingly missing uniformity and parity with the
legislature as to how it can be amended.
The measure 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 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.
2)Initiative Constitutional Amendments Only : The provisions of
this constitutional amendment 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.
Constitutional amendments that are proposed by the Legislature
would not be affected by this measure.
3)Initiative Constitutional Amendment History : In the last
decade, California voters have voted on 61 initiative
measures. Of those 61 measures, 33 proposed amendments to the
state constitution. During that time, about 27 percent of
initiative measures that amended the constitution were
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approved, compared to 36 percent of initiative measures that
made only statutory changes.
4)Two-Thirds Vote Requirement : Under this measure, an
initiative constitutional amendment would require approval by
two-thirds of voters statewide to take effect. This vote
threshold may serve to prevent any initiative constitutional
amendment from being authorized by voters in the state ever
again. In the history of California's initiative process,
only 10 initiative constitutional amendments have surpassed
this threshold, including just four such measures since 1935.
No initiative constitutional amendments have received
two-thirds of the vote in almost 25 years; the last initiative
constitutional amendment to exceed that threshold was
Proposition 63, which appeared on the ballot in November 1986.
Prop. 63, which proposed to make English the official
language of the state of California, was approved with 73
percent of the vote.
Given these facts, if it is the committee's desire to increase
the vote threshold for voters to approve initiative
constitutional amendments, the committee should also consider
whether the two-thirds threshold is appropriate. Given
California's recent history with initiative constitutional
amendments, a two-thirds threshold for approval for initiative
constitutional amendments could impose a de facto ban on
initiative constitutional amendments in the state.
5)Locking in the Status Quo ? One of the potential impacts of
this constitutional amendment could be to lock-in the current
version of the constitution with respect to certain
controversial issues. As detailed above, initiative
constitutional amendments rarely receive two-thirds of votes
cast. On the other hand, a number of controversial initiative
constitutional amendments have been approved by a slim
majority. While this measure permits previously enacted
initiative constitutional amendments to be repealed on a
majority vote, any modification to a previously enacted
initiative constitutional amendment through the initiative
process would require a 2/3rds vote. Because of sharply
divided public opinion on certain controversial measures, it
is possible that any effort to modify those controversial
measures would be unable to attract a two-thirds vote, either
through the initiative process, or of the Legislature to place
a constitutional amendment on the ballot that would then
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require a majority vote.
6)Supermajority Vote Requirements : 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.
7)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 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.
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8)Arguments in Opposition : According to the Howard Jarvis
Taxpayers Association:
ACA 11 would increase the vote threshold to approve a
constitutional amendment from a majority vote to 66
percent, while also allowing for the repeal of a previously
approved constitutional amendment by a majority vote of the
electorate. This establishes an unfair double standard
which would make it extraordinarily difficult for anything
but well-funded measures to pass.
Had this been in place 33 years ago, Proposition 13 would
not have been approved. Other measures include:
Propositions 218 & 26 (taxes), 11
(redistricting),?Proposition 98 (education), Proposition
187 (immigration), and Proposition 8 (marriage). Many
proposals from all sides of the ideological spectrum would
be negatively impacted by this bill.
This strikes at the key thrust of our argument: that voters
want the ability to vote on measures important to them. A
recent PPIC poll shows 62 percent support for this
statement. Clearly they are not suffering from ballot
fatigue. It should not be the role of the Legislature to
impose their will upon the voters who elected them. Direct
democracy provides an important check to the Legislature
which should not be altered.
9)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.
10)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.
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11)Re-Referral to Appropriations : Although this measure has
been keyed non-fiscal by the Legislative Counsel, the Assembly
Rules Committee has instructed this Committee to re-refer this
measure to the Assembly Appropriations Committee, if it is
approved by this 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.
12)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
Howard Jarvis Taxpayers Association
Analysis Prepared by : Ethan Jones / E. & R. / (916) 319-2094