A More Fundamental Legal Problem with the 3-Californias Ballot Measure

Last night I flagged the revision/amendment issue as a major obstacle to 3-Californias going forward, but Bob Wolfe sees a more fundamental problem:

At first glance, I thought the initiative is unconstitutional because it “contemplates such a far-reaching change in our governmental framework as to amount to a qualitative constitutional revision, an undertaking beyond the reach of the initiative process.” (See Raven v. Deukmejian (1990) 52 Cal.3d 336.)

But this initiative is even flimsier than that. To my huge surprise, it doesn’t even purport to be a constitutional amendment; instead, it’s an initiative statute, which has a much lower signature requirement. The amendment merely amends the Government Code section 173 to establish three new states. It doesn’t change the California Constitution.

This statutory initiative contravenes the letter and intent of virtually every provision of the California constitution. The initiative relies upon a provision in the California constitution which allows the state’s boundaries to be modified “pursuant to statute.” (Cal. Const., Art. III, §2.) That presumably could happen if a river changes course, or if there was a surveyor’s mistake. But the same constitutional section – which the initiative cannot amend, also provides that “Sacramento is the capital of California.” (Cal. Const., Art. III, §2.)

Yet, according to the initiative, Sacramento no longer is in the state of California; it’s now to be located in the new state of Northern California.

How can this be without a constitutional amendment?

The California Constitution provides that the University of California is a public trust, to be administered by the Regents of the University of California, who “shall be vested with the legal title and the management and disposition of the property of the university and of property held for its benefit . . . “ (Cal. Const., Art IX, §9.) Yet, under the initiative measure, UC Berkeley, UCLA and UC Irvine are now to be located in different states. Again, there is no way that a statute can alter a constitutional provision.

I doubt (and hope) that this statutory initiative measure will even make it onto the November ballot. The Calif. Supreme Court has the power to engage in “preelection review” to strike an unconstitutional initiative before anyone votes on it. (See Senate of State of Calif. v. Jones (1999) 21 Cal.4th 1142.) In Jones, the Supreme Court invalidated an initiative measure from the ballot just 11 days after receiving the final brief, and 3 days after oral argument. It never went before the voters.

So who is going to file a writ to get this knocked off the ballot before the November election?

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