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Chief justice: Initiative process has led to dysfunctional state

Ronald George

In unusually blunt remarks, Chief Justice Ronald George warned last month that the widely used initiative process that allows California voters to easily amend the Constitution has resulted in a dysfunctional state government.

Speaking at his induction into the American Academy of Arts & Sciences in Cambridge, Mass., George called use of the initiative process “extreme,” and said it imposes constraints on elected officials akin to being “placed in a fiscal straitjacket.” As a result of mandates — imposed by voters — requiring two-thirds of the legislature to approve tax increases, California’s tax structure has given rise to a “boom or bust” economic cycle, he said. This year, when the state faces an unprecedented economic crisis, those restrictions resulted in cuts to programs that provide food to poor children and health care to the elderly disabled, as well as court closures one day a month.

In addition, the initiative process places a burden on the justice system, which is called on to resolve legal challenges prior to elections as well as years of litigation in cases where a measure’s intent is unclear. While performing their duties as judges, George said, courts often incur the wrath of voters if they invalidate an initiative in whole or in part.

“One thing is fairly certain, however,” he said. “If a proposal, whatever its nature, is sufficiently funded by its backers, it most likely will obtain the requisite number of signatures to qualify for the ballot, and — if it does qualify — there is a good chance the measure will pass.  The converse certainly is true — poorly funded efforts, without sufficient backing to mount an expensive television campaign — are highly unlikely to succeed, whatever their merit.

In 2008, George wrote the historic decision ending a ban on same-sex marriage. But just a year later, the Supreme Court was called upon to decide the challenge to Proposition 8, the initiative approved by voters to prohibit same-sex marriage. It was George who again wrote the decision, this time upholding the initiative that overrode the court’s earlier ruling. In his opinion, George said opponents of Prop 8 complained it was “too easy” to amend the Constitution. But the court found that it had no power to “curtail that process.”

Noting that Prop 8 was enacted on the same ballot that amended the Constitution to restrict confinement of barnyard fowl in coops, George said, “Chickens gained valuable rights in California on the same day that gay men and lesbians lost them.”

George, a moderate Republican, compared the ease with which voters can amend the California Constitution with the more daunting task of changing the U.S. Constitution. In addition to the Bill of Rights, the federal Constitution has been amended only 17 times, he said. In contrast, more than 500 amendments to the California Constitution have been adopted since its 1879 ratification.

Calls for a constitutional convention to right the situation are themselves controversial, with both voters and legal scholars divided on the outcome of such an effort. George stopped short of endorsing a new Constitution, but he said, “Californians may need to consider some fundamental reform of the voter initiative process.

“Otherwise,” he added, “I am concerned, we shall continue on a course of dysfunctional state government, characterized by a lack of accountability on the part of our officeholders as well as the voting public.”

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