California Attorney General Moves To Stop Anti-Gay Ballot Proposal

Transcript

ROBERT SIEGEL, HOST:

Now a story about the limits of direct democracy in California. That state's attorney general is asking a court to block a proposed initiative, one that appears to stand little chance of actually getting the hundreds of thousands signatures needed to get on the ballot. Officially, it is called the Sodomite Suppression Act, and it allows for gays and lesbians to - this is quote "to be put to death by bullets to the head or by any other convenient method." It actually calls for killing people. The attorney general calls it patently unconstitutional, utterly reprehensible. The whole controversy has raised questions about California's referendum system. And for more on this, we turn to Vikram Amar, who's a professor of law at the University of California, Davis. Welcome to the program.

VIKRAM AMAR: Thank you.

SIEGEL: Let's take a step back here. Explain a bit about California's voter initiative system and how it actually works.

AMAR: So someone who wants to qualify a measure for the ballot has to draft some ballot language and submit it to the attorney general. And the attorney general then provides a summary and a title, and then that starts a process of public comment and signature gathering. And as you pointed out, in California, hundreds of thousands of signatures are needed to put something on the statewide ballot. And if it gets those signatures and then is voted on by the people, then it would go into effect, if it can, after all that.

SIEGEL: Now, one approach toward proposed referenda that are reprehensible would be to say well, democracy will take care of that. It either won't get enough signatures or it'll be defeated on the ballot if it does. In this case, something else has happened. What has the attorney general done?

AMAR: Well, California law prohibits an attorney general on her own from blocking a measure to go forward to the signature-gathering phase. But what the attorney general has done I think rightly is to ask a court to determine that this measure is so patently unconstitutional and could never take effect in the exceedingly unlikely event that it gathered the requisite number of signatures and were voted on by the California people that it's just a waste of everyone's time to go forward. And so she's seeking a judge's permission to kind of terminate the madness now.

SIEGEL: Is this common?

AMAR: No. It's very uncommon because initiatives that are this blatantly beyond the pale are also uncommon. My guess is that judges would bend over backwards not to block the initiative process for anything that might be illegal. But for something like this that is so obviously violative of the state and federal constitutions, I think a judge should be receptive to the attorney general's request.

SIEGEL: Has there been any discussion prompted by all this of changing the rules on what gets on the ballot or what people go out petitioning for?

AMAR: Yeah, two kinds of changes I think are suggested. One is to raise the filing fee from $200 to something much higher, like eight or $10,000. That may screen out some frivolous proposals, but it also sends a message about direct democracy requiring money. In reality it does require money because you need a million dollars or more to gather the signatures. But by building in a high filing charge upfront, we do send a problematic signal to the world about the connection between money and democracy. And then the other possibility would be to give the attorney general unilateral power to screen out blatantly illegal measures, but in California we have a strong preference for having judges involved because we don't trust elected political officials to make that kind of determination. There are lots of initiatives out here that ultimately get enacted that are arguably unconstitutional and indeed that courts strike down after the fact. But I don't think we want the Attorney General making that gate keeping call at the front end.

SIEGEL: Is it possible here that the author of this particular proposed referendum has indeed found the limits of direct democracy in California?

AMAR: Well, certainly you don't hear many people thinking that this thing should go forward, which is why I think a judge hopefully will be receptive to the attorney general's request to stop all this. And we can stop talking about this guy and giving him the attention that he probably seeks.

SIEGEL: Professor Amar, thanks for talking with us.

AMAR: My pleasure.

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