May 26, 2009

A Few Thoughts on the Prop. 8 Opinion from the Perspective of Election Law

There is certainly much to be said about the California Supreme Court's set of opinions in Strauss v. Horton from the perspective of the gay rights/gay marriage issue. I leave those issues to people who have thought about them more closely and carefully than I have. Here, I just advance a few points from the perspective of election law.

1. Under the California Constitution, the people have the power through the initiative process to amend the state constitution, but not to revise it. The California Supreme Court had never fully articulated its theory as to what counts as an improper revision. Some of the cases suggested the issue had to do with changes to governmental structure, but others did not. At least some of the cases involving a revision concerned an initiative impinging on the power of the judicial branch. In today's opinion, the majority adopts a clearer---though narrower--vision of the meaning of constitutional revision. "In our view, a fair and full reading of this court's past amendment/revision decisions demonstrates that those cases stand for the proposition that in deciding whether or not a constitutional change constitutes a qualitative revision, a court must determine whether the change effects a substantial change in the governmental plan or structure established by the Constitution." I agree with Justice Werdegar's concurrence that this has not been the law in California in the past, but it is the law now. I expect there to be fewer successful challenges to initiatives as unconstitutional revisions under this standard.

2. The California Supreme Court rejects the argument that an initiative cannot constrict fundamental rights. At page 97, the court points to an 1894 referendum [corrected] that removed the right to vote for those not literate in English: "An additional, quite dramatic example of a constitutional amendment, proposed by the Legislature and adopted by a majority of voters, which diminished the state constitutional rights of a disfavored minority group, is the 1894 amendment to the California Constitution that entirely withdrew the right to vote from all persons not literate in the English language. (Cal. Const., former art. II, s 1 [as amended at Nov. 6, 1894 election].) This provision of the California Constitution remained in effect until 1970, when this court struck it down as a violation of the federal Constitution. (See Castro v. State of California (1970) 2 Cal.3d 223, 232-243; id. at pp. 230-232 [discussing history of the 1894 amendment and concluding that '[i]t is obvious that fear and hatred played a significant role in the passage of the literacy requirement'].) As with the challenges to each of the other constitutional amendments that have diminished state constitutional rights of minority groups since the time the 1894 measure was adopted, no claim was made that the addition of the voter literacy requirement represented a constitutional revision." A question to consider is whether the state supreme court is to some extent taking away its power to read the fundamental rights provisions in the state constitution more broadly than the federal constitutional analogues.

3. Finally, it is notable that the Court writes as if in a dialog with the people (this is most evident in Justice Kennard's concurrence). The sense I get is that the court expects its initial position upholding gay marriage to be vindicated, soon enough, by the people at the ballot box.

Posted by Rick Hasen at May 26, 2009 10:22 AM