Bennet Kelley
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Fri Nov-07-08 10:27 PM
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Cal Prop 8 and Direct Democracy Run Amok |
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Cal Prop. 8 and Direct Democracy "Run Amok" by Bennet KelleyIn July 1964 President Johnson signed the Civil Rights Act of 1964, which NAACP Secretary Roy Wilkins called "the Magna Carta of Human Rights". Four months later President Johnson was reelected in a historic landslide over Arizona Senator Barry Goldwater. This victory was tempered by California's passage of Proposition 14 which not only reversed a state anti-housing discrimination law but also amended the state constitution to protect property owners' "right to discriminate".
Two generations later the celebration of Senator Obama's historic and cathartic victory over another Arizona Republican was clouded by the narrow passage of California's Proposition 8 overturning the http://www.courtinfo.ca.gov/opinions/archive/S147999.PDF">State Supreme Court's decision that the right to marry was a "fundamental right" which should not be abridged on account of sexual orientation. As the nation celebrated the dawn of a post-racial age, a mere 14 percent of the state population was able to revive the "right to discriminate".
Prop. 8's apparent passage despite the opposition of Senator Obama, Governor Schwarzenegger and the state's ten leading newspapers is simply an embarrassment for a state that prides itself as a gateway to the future. Prop. 8 also is a poster child for California's flawed initiative process and hopefully will serve as an impetus to correct a process David Broder once called "direct democracy run amok".
The initiative process had a noble birth as it was conceived nearly a century ago by Governor Hiram Johnson as a tool for the voters to break the railroad's hold on Sacramento. According to a 2002 study by the National Conference of State Legislatures (NCSL), however, the process has "evolved . . . into a tool that is too often exploited by special interests." The NCSL study also noted that the initiative process "lacks some of the critical elements of (representative democracy), including deliberation . . . compromise" and checks and balances designed to protect minority interests; a point highlighted by the passage of Prop. 8.
Let Prop. 8 be the impetus by which Californians reestablish some sanity to the initiative process. In over 200 years, this country has enacted only 17 constitutional amendments since the Bill of Rights. Californians voted on 18 amendments to its constitution in 1990 alone. Amazingly, constitutional amendments may be approved in primaries (which get nearly one-third less turnout) by a simple majority. In contrast, Nevada requires that constitutional amendments be approved by the voters twice during the general election.
Amending a state's constitution should be harder than electing a dog catcher. Any amendments should be limited to general elections and require either a super-majority of registered voters or approval by both a majority of the voters and a super-majority of the legislature
Limits need to be placed on the number, subject matter and duration of initiatives. California ballots have become so absurdly long that Governor Johnson's tool has become a burden. In 1990 alone, voters considered 43 statewide measures in the primary and fall elections.
It is axiomatic that voters cannot make informed decisions on propositions if there are too many for them to read or follow. It is clear that voters are overwhelmed, since nearly 18 percent of those voting in the 2004 general election failed to vote on at least one of the propositions.
There should be a set limit on the number of initiatives on the ballot, with only the first initiatives to qualify or to the initiatives with the most signatures appearing on the ballot. Initiatives also should be limited to the general election which has a larger turnout.
Subject matter limitations should address repeat initiatives, such as this year's abortion parental notification measure, and "ballot box budgeting." In this decade nearly half of all non-bond measures dealt with budget or tax matters. The recent budget crisis highlighted the extent that the state's ability to raise and spend money was predetermined by past initiatives. This experience suggests that California should follow other states that prohibit ballot measures from directing how the state collects or spends it money, or at least require that such measures be revenue neutral. For example, Mississippi requires that initiatives calling for new spending identify the amount and source of revenue required while any tax cut proposal must identify corresponding spending cuts by program.
In addition, nearly eighty percent of Californians believe that only some or few of the measures are understandable to most voters. That is why initiatives should be limited to matters which both affect the public as a whole and are readily understandable to the voters such that they could make a reasonably informed decision based on the official voter guide.
Finally, approved initiatives should not be set in stone and left untouchable by the legislature. Votes on propositions are ad hoc decisions fixed in time and, unlike the legislature, voters do not engage in oversight of measures passed. The legislature should have the ability to save the state from unintended consequences of enacted measures, either by permitting amendment after an initial period of four years (or even earlier with a super-majority) and/or having all propositions expire unless reenacted after six years or some other period.
These measures would go a long way to preserving a worthwhile mechanism that simply has grown out of control. The fact is, however, that these proposals are included in various reform proposals offered by multiple commissions, the Sacramento Bee, the Los Angeles Times, and NCSL and have been debated for over a decade. As Prop. 8 demonstrated all too clearly, however, the time for studies has passed; it is now time for action.
Originally published on Huffington Post.
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Maat
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Fri Nov-07-08 10:30 PM
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1. This law school graduate agrees ... |
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it's ridiculous that uneducated yahoos should be able to take fundamental rights away from people without even understand what a constitution is. I like the Mass. system - the legislature has to approve the proposition in question.
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frazzled
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Fri Nov-07-08 11:15 PM
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2. I have been arguing against the idea of ballot initiatives for years |
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How many more unconstitutional (e.g., Prop 8) or self-destructive (MA lowering income tax rate a number of years ago) do we have to have before we realize that ballot initiatives are a bad idea--making end-runs around our representative government, relying on voter confusion/ignorance/self-interest/or plain mendacity.
It's like having two governments at once: a representative body whom we elect--and then phony "laws" foisted on them by the people over which they have no control. How about let the legislature and courts the constitution has provided us with decided these issues, and then if we don't like their decisions, vote them out.
No more ballot initiatives.
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bemildred
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Sat Nov-08-08 08:58 AM
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3. It's true, "The People" make mistakes sometimes, do the wrong thing. |
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But in fairness, so do oligarchs and aristocrats and autocrats. And boatloads of money are spent to mislead us,too. That's why we have Constitutions and Supreme Courts to enforce them. The main issue I see with the initiative process is that it's much too easy to meddle with the Constitution that way, as opposed to making "ordinary" law, and a lot of our problems with the initiative process in California have derived from that error.
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NorthCarolina
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Sat Nov-08-08 09:28 AM
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4. Should ballot initiatives even be used to allow voters to convey or deny fundamental rights |
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to a minority group? Isn't that solely the realm of the State and Federal Court system? I shudder to think how far civil rights for the AA community would have progressed had there been ballot initiatives allowed here in the Southern States. I can pretty much guarantee we'd still have separate drinking fountains, lunch counters, and designated seating at the back of the bus for all black Americans had the voters been allowed to decide the fate of their access to basic civil rights.
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Recursion
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Sat Nov-08-08 09:29 AM
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5. Don't forget how recall-happy CA is too |
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The Constitution separates deliberation from the passions of the moment for a reason.
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LiberalLovinLug
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Sat Nov-08-08 02:37 PM
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6. Never for minority rights |
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It should not be used on issues deciding minority rights ever. Allowing the majority to decide how many rights minority groups will have is ludicrous. Especially if a lot of that majority is ignorant of what those rights mean to that minority, and where millions of dollars are allowed into the equation to blanket the airwaves with disinformation about it.
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PatSeg
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Sat Nov-08-08 03:57 PM
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7. Ballot initiatives in California |
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have gotten ridiculous. My "Official voter information guide" this year was 147 pages long, followed later with a "supplemental" that was 14 pages. The propositions were confusing and often misleading.
This flawed system needs to be addressed before the next election.
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DrZeeLit
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Sat Nov-08-08 04:25 PM
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8. Could I ask a question? Don't flame me... I am serious... as a 3rd gen native CA girl who moved... |
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to Vermont (where we did well, but could do better, I will grant you).
My question....
How was that ballot measure worded? I have family in CA who were voting on the right side of this issue, no matter where they stood on Obama. (Yeah, even the blacksheep repubs).
So, I am really surprised by the outcome. Especially given the vote for Obama -- which you would consider to be a lot of liberals voting.
Was it worded "Yes, we don't want gay marriage." Or "No on gay marriage."
Is there any possibility that voters went to the polls, saw YES, and thought, "Yeah, I'm fine with gay marriage" and then pushed the button (or whatever).
I just wondered. Honestly.
I'm pretty much sick over the whole thing -- it's like we're all having a party and not everyone got the invite. Damn.
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Bennet Kelley
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Sat Nov-08-08 04:33 PM
Response to Reply #8 |
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The Title was "ELIMINATES RIGHT OF SAME–SEX COUPLES TO MARRY. INITIATIVE CONSTITUTIONAL AMENDMENT."
The complete text:
This initiative measure is submitted to the people in accordance with the provisions of Article II, Section 8, of the California Constitution. This initiative measure expressly amends the California Constitution by adding a section thereto; therefore, new provisions proposed to be added are printed in italic type to indicate that they are new.
SECTION 1. Title This measure shall be known and may be cited as the “California Marriage Protection Act.”
SECTION 2. Section 7.5 is added to Article I of the California Constitution, to read: SEC. 7.5. Only marriage between a man and a woman is valid or recognized in California.
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DrZeeLit
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Sat Nov-08-08 05:52 PM
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11. So, "yes" vote was to amend the CA constitution. |
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Well, I would hope with all my heart that this goes all the way to the Supreme Court -- at least in CA. And is struck down.
Thanks for the notation. I suppose I could have looked up the information, but I really do trust everyone here to give me the truth.
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lelgt60
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Sat Nov-08-08 04:36 PM
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10. This is the tyranny of the majority... |
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I thought that's what the Constitution intended the courts to protect against. The problem is, as currently and historically interpreted, the right to marriage isn't protected (I'm hoping that will change very soon).
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Bennet Kelley
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Sat Nov-08-08 06:08 PM
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12. Its hard to challenge a constitutional amendment |
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Since by definition its constitutional (absent some flaw in the process).
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hay rick
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Sat Nov-08-08 07:15 PM
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18th amendment (prohibition) was passed in 1918. It was repealed by the 21st amendment (1933). If the ban on same-sex marriage can be established by ballot initiative I expect it can be repealed by the same process. Am I missing something here?
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Bennet Kelley
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Sat Nov-08-08 08:02 PM
Response to Reply #13 |
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There is a question of whether Prop 8 is a revision or an amendment. In any event - repeal of Prop 8 would be a revision and require 2/3 legislative vote.
CALIFORNIA CONSTITUTION ARTICLE 18 AMENDING AND REVISING THE CONSTITUTION
SEC. 1. The Legislature by rollcall vote entered in the journal, two-thirds of the membership of each house concurring, may propose an amendment or revision of the Constitution and in the same manner may amend or withdraw its proposal. Each amendment shall be so prepared and submitted that it can be voted on separately.
SEC. 3. The electors may amend the Constitution by initiative.
According to briefing filed in response to Prop 8 - an amendment implies a change within the lines of the existing document that will affect an improvement or better carry out its purpose, while a revision alters the underlying principles or makes far reaching changes.
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Fri Apr 26th 2024, 01:15 AM
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