Calif. Lawyer's Ballot Proposal Calls Referendum System Into Question

Transcript

ROBERT SIEGEL, HOST:

Now to the opinion of one Huntington Beach lawyer who's proposed an initiative that's causing a stir in California. Officially, it is called the Sodomite Suppression Act, and it allows for gays and lesbians to, and this is a quote, "to be put to death by bullets to the head or by any other convenient method." It calls for killing people. The lawyer, Matthew McLaughlin, now needs more than 365,000 signatures to get his proposal on the ballot. And while it’s highly unlikely that will ever happen, it has raised questions about California’s referendum system. And for more on that, we turn to Vikram Amar. He’s a professor at the University of California, Davis, School Of Law. Welcome to the program.

VIKRAM AMAR: Thank you.

SIEGEL: Let's take a step back here. I want you to explain a bit of how California's voter initiative system works. How does somebody get something on the ballot – even this?

AMAR: Well, someone drafts a proposal that would change either California statutes or the California Constitution, submits it to the attorney general who then prepares a summary of the measure, and after that, the measure is given a title. And as of recently, there’s a 30-day public comment period that just allows the drafter of the initiative to hear from the public in case he wants to make tweaks to its language. And then it goes out for signature gathering. And as you pointed out, to change California statutes right now you need about almost 400,000 signatures. And if those signatures are collected and then verified by the relevant state officials, the measure is put on the statewide ballot for the electorate to consider.

SIEGEL: You said recently, speaking of this Sodomite Suppression Act, this is a nut job and an illegal proposition. I understand that we can’t prevent nut jobs, but if it were demonstrably illegal, wouldn’t there be some mechanism to keep it off the ballot?

AMAR: Well, there might be. What California law says is that the attorney general, a political elected official, cannot by herself exclude a measure from the signature-gathering process because we don’t trust elected political officials to make judgments about what is necessarily legal or not, especially in closed cases. But if she were to go to a court and ask a court to declare this proposal patently unconstitutional and could never go into effect even if enacted, the court might feel comfortable prohibiting it from going any farther. But we have a strong preference in California for judges making these determinations rather than elected political officials.

SIEGEL: Is there talk in California about changing the system of referendums and initiatives?

AMAR: Yeah, there is. I don't think too many people are talking about raising the signature requirement because, you know, 350 to 400,000 signatures is already quite a lot and takes millions of dollars to obtain. And as it is, direct democracy is reserved, perhaps too much, for well-heeled interests. But some folks in the legislature have proposed raising the filing fee from $200 to something like $8,000. In reality, it’s not going to prevent too many plausible intiatives form going forward because a plausible initiative needs seven figures behind it anyway. But it does send a problematic message to the world about the openness of democracy when you raise filing fees. And in this area of the law, I think symbls are important.

SIEGEL: Can you think of other proposed initiatives that have been as far out as this one?

AMAR: No. This is truly extreme. But you can look back in California history. There are initiatives that were passed that later are declared unconstitutional. For example in 2008, the voters of California passed Proposition 8 which prohibited same-sex marriage. And I expect this summer the Supreme Court will call into question Proposition 8 and hold that same-sex marriage is a federal, constitutional right. And as you pointed out earlier, this guy’s measure is never going to get the requisite hundreds of thousands of signatures. The real issue is whether there should be a way to let it go even towards that and prevent people from having to be subjected to someone with a clipboard asking if they want to sign this petition.

SIEGEL: Well, Professor Amar, thank you very much for talking with us about it.

AMAR: My pleasure, indeed.

SIEGEL: That’s Vikram Amar, professor at the University of California, Davis, School of Law. Transcript provided by NPR, Copyright NPR.