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Ballot Irony: Voters May Overrule Themselves On 3 Strikes, Death Penalty

September 26, 2012 1:18 p.m.


Glenn Smith, Professor of Constitutional Law, California Western School of Law

Lori Saldaña, former Democratic state Assembly Member.

Related Story: Voters Could Overrule Themselves On 3 Strikes, Death Penalty Ballot Measures


This is a rush transcript created by a contractor for KPBS to improve accessibility for the deaf and hard-of-hearing. Please refer to the media file as the formal record of this interview. Opinions expressed by guests during interviews reflect the guest’s individual views and do not necessarily represent those of KPBS staff, members or its sponsors.

Among the eleven propositions on November's ballot are two that reverse or amend initiatives already approved by voters. Proposition thirty-four asks voters to end capitol punishment, prop thirty-six asks voters to modify the voter-approved three strikes law. Recently, parts of California's popular Jessica's law, which began as proposition eighty-three, was struck down by an appellate court as unconstitutional. So style can change public opinion on issues. But so can the unexpected outcomes of poorly crafted initiatives. Joining me to talk about how California's initiative process can go wrong and how it could be improved are my guests, Glen Smith is professor of constitutional law at California western school of law.
SMITH: Thank you.

CAVANAUGH: Lori Saldana is a former democratic California state assembly member. Of good to speak with you.

SALDANA: Thank you, Maureen.

CAVANAUGH: Now, Glen, give us California ballot initiatives one-hundred-one. Why do we have ballot initiatives in the first place?

SMITH: It started from the very noble idea that when especially the legislator back in the reform era proceeded to be in the pocket of big interests, we needed a way to adopt legislation for the people to get things out into law and into the constitution when they were roadblocked in the legislature. And there have been times throughout the history of the initiative process where it has served that function. Unfortunately it has grown and mushroomed into a process where incredibly important and complicated issues of economic policy and legal policy and technology and all that are dealt with in a process that's very different from the legislative process and gives voters not much information in sort of an up or down vote one day in a ballot.

CAVANAUGH: There are two types of initiatives that can wind up on the ballot for a public vote. A citizens initiative and legislative initiative. Glen, why do legislators put initiatives on the ballot? Can't they just vote on these in Sacramento?
SMITH: I think the general reason is they don't think they can get the kind of political support it takes. I think there's a variety of reasons. They think it'll attract more political support.

CAVANAUGH: And Lori, let me get your input on this. How does it end up that voters are asked to make the decisions that perhaps legislators should be making on some of these legislative initiate you haves?

SALDANA: Well, as Glen said, sometimes a matter of not having the supermajority, especially if it has to do with revenues. Governor Schwarzenegger imposed a sales tax by having the vote be taken by going to the voters, for example. The problem with all of these things is the unintended consequences and different reviews that have come up when I served on the elections and redistricting committee, included things like a sunset period where they would have to be reauthorized after a certain amount of time. There's a lot of things we could do to improve the process, and California is one of only a handful of states that allows our constitution to be directly changed by the voter initiative, which is why our state constitution has hundreds and hundreds of amendments, and it's really very cumbersome for us to try to deal with.

CAVANAUGH: Now, Glen, I know that you've written an article in the cal western law review about California's initiative process. Could you summarize what you think is work and what is not working?
SMITH: Well, I think that it's an efficient process for getting ideas that for whatever reason are not current in the legislature and not going to be taken seriously, taken seriously. The death penalty, there's on-goingly been concern over the death penalty, but for political reasons, it's not something that the legislature is going to try to amend. That's the good part about it. When I look at it as a former legislative staffer in Washington, it seems to lack all the other things you would want in a representative process. Good information, ability of people to initiate and fix members, some linkage between the voters who are asked to serve as legislators and the sponsors of initiative ares and interest groups that they're trusting to come up with good ideas. If you look at the whole process from the proposal of legislation, it lacks a lot of the things that we have come to associate with democratic deliberation.

CAVANAUGH: Now, of course we get a ballot, and we can read the statements on that ballot for and against a certain proposition, and we can read what it says the initiative is going to do, and we can read the fiscal impact. Is that not enough information?
SMITH: I don't think it is. I worked with a group of students to study that process, and what we saw is that the legislative analysts' general analysis is good. It covers a certain amount of the key information. A big problem is that it can't speak for the sponsors and it can't really get into the arguments pro and con. When you get into the arguments, they're so shortened and they're so focused on heat rather than light, telling you that the other side is in the back pocket of special interests and really exaggerating and only convening a mood of outrage that I don't think they're very effective in anticipating many of the secondary questions that legitimate voters or the people that give voters cues would be interested in.

CAVANAUGH: For instance, the original three strikes law that voters voted on in the 1990's, it ended up costing California a lot more than the original financial impact statement, right?

SMITH: Absolutely. And it's generated lots of lawsuits and attempts by others to cut back on it. It's generated a lot of human misery. People that probably even under the voters' strong stand against violence offenders being incarcerated, they didn't really fit in that, but the way the law was written, it brought them in the net, and it's created lots of unintended consequences, and that's why we have a proposition on the ballot to try to fix it want

CAVANAUGH: Now, Lori, it seems that several of this November's propositions came about because for one reason or another, lack of action in the legislature. Prop thirty, thirty-eight, thirty-nine, all revenue and tax measures. If legislators, considering that they have staffs and time to deliberate can't agree on these issues, how are voters supposed to decide on this?

SALDANA: Well, as Glen was saying, the process of promoting these ballot measures and one of the largest unregulated industries in California. He and I worked together with the students to look this over. I introduced legislation that Glen and his students were part of to try to have people trained in the ethics. So when you go and ask somebody for their signature, you can't mislead them. And that was vetoed by govern Schwarzenegger. So the very basic constraints on accurate or the requirements to provide accurate information are just absent from advertising when it comes to ballot measures. And the funding that goes into the signature-gathering process, the promotion of that, all of that is extensive, but the citizens of California pay the ultimate price, where we have such extreme prisoner overcrowding, we pay more for prisoners than we do for education. It's a very difficult process for voters to understand, and it comes down to emotions. And the fiscal impacts on the state have been devastating.

CAVANAUGH: Now, I wanted to point out too, in addition to the propositions that are on November's ballot, I mentioned Jessica's law. That's just recently come out of an appellate court, and sections of that were found to be unconstitutional. And I know that there's another proposition on the ballot that you think is going to be in and out of the Courts for years. Tell us about that.

SMITH: Well, I think that several of these have that potential. But as I was looking at the legislative analysts' descriptions of these propositions, I was intrigued by the genetically modified food labeling one. It says right here, "given the way the measure is written, there's a possibility that these restrictions would be interpreted by the Courts to apply to some foods regardless of whether they're engineered" what says basically saying is there's a built-in uncertainty that's going to require judicial interpretation or might well do that. And that's why in my advocacy of this notice and comment idea, I say let's have proponents in a very informal and streamlined way say what they do and what they're not trying to do, and let's have people come in and point out, have you considered that this proposition might have this effect and this effect, and it can be clarified so that we can avoid a lot of these legal battles and the expense and uncertainty and overregulation that flows from them?

CAVANAUGH: Lori, this is an example of what seems to be in the polls quite a popular proposition, notifying people if there are genetically modified ingredients in the foods they buy. And yet, statement, it seems that because of the way this initiative has been actually written, it's going to wind up being people say it may wind up being something of a mess. Is that what you target, is that what you're looking at when you want people to get right information about these initiatives?

SALDANA: Well, I think the long-term consequences are almost impossible to forecast accurately for these things. The other concern, and you will see a huge amount of money going against the ballot measures such as the GMO labeling because of the national implications am as goes California so often goes the rest of the country. You will see an outpouring of money to defeat this from all over the country, not just California. People recognize it's not just a constitutional question for the State of California. We're over 10percent of the population of the United States. What happens here ultimately ripples out to other states. So you see battles taking place in California that set the stage for national scale battles.

CAVANAUGH: I want to talk about two things, Glen, that you outline in your article. And one of them has to do with challenges to these initiatives in the Court. You say the way things are now, it's very can I have cult for a judge to figure out what the intent was behind the initiative. Why is that?

SMITH: Well, partly it's a variety of reasons, but first of all, we've got millions of voter, millions of legislators here, so to find any collective intent is disqualify. Plus the usual track record that gets left behind when legislation is passed, you have a statement when somebody proposes it, you have hearings, and you have a record about what this means and doesn't mean and how it might apply and wouldn't apply, and all of that is now missing in the initiative process. It would be very easy to put it in without destroying the process or making it much significantly more bureaucratized. I want to be fair here. Lori will know this too. It's not like legislation never causes unintended consequences. It's often impossible to completely predict what happened in the long run. But at least in the legislative process, you have a lot of voices coming in and weighing in, and looking at it and pointing it out, and you have an opportunity to negotiate and modify and deal with it. And we don't have any of that in the initiative process. Of so there's a much greater risk of these unintended consequences and difficulties in our current process. And we can reform it easily.

CAVANAUGH: And your analysis also actually challenging the concept that citizens can step in as legislators and take on that burden in an educated and appropriate fashion.
SMITH: Yeah, not forever. I think if you gave them useful information and let's face it, we're not going to all sit down and pour over all this information. But we're going to rely on experts and cue givers and political parties and interest groups. They would sit down and look at this information. So I think it's very possible for this process to work the way the initial sponsors of the process intended. But to have these kinds of complicated issues subject to democracy, we need more deliberation than we have now. And we need more information.

CAVANAUGH: Lori, Glen points out that even laws enacted by the legislature can have unintended consequences. But let me map out a scenario here that links one voter initiative to another voter initiative. You wrote about the consequences of this citizens initiative, prop thirteen recently. It was passed by voters in 978, shut down significant sources of revenue for the state, and now thirty-four years later the state is struggling to raise revenues for basics like education and public safety. So do you draw a cause and effect between let's say prop thirteen and prop thirty the governor's tax initiative?

SALDANA: Well, absolutely. The prop thirteen changed the structure of property taxes in California. At that time, property taxes were are being paid evenly between commercial property interests and homeowners. Now, two-thirds of our property taxes rely upon homeowners. Only one-third upon commercial interests. And what's happened with homeowners in the last few years? Foreclosures, property values have been declining. So we built a house of cards on homeowner properties, and it collapsed along with the housing market over the last few years. So that's one of those unintended consequences. Although some would say the sponsors of prop thirteen knew exactly what they were doing in terms of reducing the property tax on corporations and businesses in California. So we're paying the price, and our schools are suffering for it, along with every other baseball service that the public in California has typically supported.

CAVANAUGH: Let's say the voter initiative is here to stay in California.

SMITH: It is, definitely.

CAVANAUGH: So how can we improve it?

SMITH: Well, I want to say, you get a consistent message when you look at polls. People like the process in general but they think it can be improved substantially. There's a consensus for reform. There's all kinds of proposals, people want to change the system, they want to require more voter signatures and all that. I think one of the most promising areas is this area of keep the system the way it is, don't make any fundamental changes, but at least make it more deliberative. Maybe the initiative sponsors have to go on the record with more information about what they intend to do and don't, and then have a very brief and informal process where people can engage in a dialogue about it and say here are the pros and cons, then have the initiative sponsors come along and respond to it. There's a very long established administrative process that you can mimic and streamline to accomplish this. It doesn't require the reinvention of the wheel. But I think that would go a long way toward giving be everybody the kind of information we need to intelligently do the job we're going to keep doing, which is to be legislators. It's not going to go away. Let's give our voters the tools they need to make intelligent decisions.

CAVANAUGH: And in the meantime, we have the information on our ballots.
That's right. We do the best we can.