Failures of the I&R Process

People usually think of failures of the initiative process when the courts intervene.

Litigation is often a final yet critical stage in the initiative process. Although courts generally defer to ballot initiatives as expressions of the public’s will, they periodically invalidate initiatives either altogether or in part. (See link to study materials.) Opponents of a successful measure often ask the courts to invalidate initiatives on constitutional or statutory grounds.

California courts have been understandably respectful of the initiative process and reluctant
to overturn successful measures that have received a popular mandate. However, California
courts have invalidated initiatives on four grounds:

1. The initiative violated the state’s single subject rule.

2. Federal law preempted the initiative in question.

3. The initiative violated the First Amendment.

4. A competing initiative receiving more votes superseded the initiative.

The courts are the principal check on the initiative process—not surprising due to initiatives’ typical lack of legislative review and scrutiny. When this happens, voters become disillusioned and initiative proponents frustrated.

Did unintended consequences make these initiatives failures?

Proposition 184 in 1994 doubled the penalty for a second felony and imposed a mandatory prison sentence of 25 years to life for a third felony.

(Proposition 36 in In November 2012 (passed with 69% of the vote) said that offenders who have committed no serious and violent crime will no longer go to prison for life.)

Proposition 13 in 1978 put a cap on the annual increase in property-tax rates, resulting in localities having huge budget shortfalls that must be backfilled by the state.
Proposition 98 in 1988 required a minimum percentage of the state budget to be spent on K-12 education, tying legislators’ hands.
Proposition 140 in 1990 created term limits on legislators, forcing them to leave just as many are beginning to understand how lawmaking works.

Learn more about the Initiative and Referendum Study, as well as gain access to the Study Guide and Consensus Questions, here.

See the previous posts on the Initiative & Referendum Study:

1. An Initiative and Referendum Primer

2. LWVC Current Position on I&R

3. Historic Summary

4. Current Context

5. I & R Reforms – Back to Original Intent?

LWVSF thanks LWV North County San Diego for this post.

All League News