​Be Careful What You Sign

VotedArmed with a clipboard and a smile, they stand on the sidewalk in front of popular stores and public buildings. “Want to support schools?” or “Do you want to end poverty?” they call out to passersby. Those who respond positively are asked to sign a petition to place a measure to accomplish the stated goal on the ballot.

These are signature gathers, usually paid by the interests advancing the initiative they tout. They are not obligated to fully explain who would actually benefit from the passage of measure which, more times than not, is the sponsor of the initiative. And they do not have to volunteer if the initiative would raise taxes. In fact, for tax increase measures, saying that the proposal would hike taxes is likely the last thing they would admit.

However, even if signature gatherers are, at times, misleading, this does not justify further weakening the People’s right to initiative, referendum and recall, as some suggest. As with all matters relating to government, it remains the voter’s responsibility be informed and to ask questions — and questions should be asked before signing a petition in support of a measure that could result in a major change in state law.

The tools of direct democracy are worth preserving. They vest the citizenry with the power to be the Legislature of last resort when sitting lawmakers prove to be indolent, incompetent or corrupt and unable to properly carry out the most important business of the public. One has only to look back to 1978. When the Legislature and then Governor Brown refused to act, voters placed on the ballot and approved Proposition 13, an answer to escalating property taxes that were literally forcing many from their homes.

Support for the legislative referendum in our country goes back to Thomas Jefferson, who advocated for its inclusion in the Virginia state constitution. Its implementation in California is credited to Governor Hiram Johnson.

Johnson was elected in 1910 on an anti-Southern Pacific Railroad platform at a time when most members of the Legislature where bought and paid for by the railroad. (An ironic historical footnote: Shortly after taking office Johnson paroled notorious Southern Pacific train robber, Chris Evans.)

In a 1911 special election, California voters approved the initiative process which allowed regular folks to be involved in making laws and broke the stranglehold of the railroad had on the Legislature. The politicians, none of whom like to share power, have been disgruntled ever since. Of course, the fact that politicians don’t like the people’s initiative, referendum and recall rights, that are embedded in the state constitution, may be one of the best arguments that these rights must be retained.

However, the key to a vibrant and effective initiative process is an informed public. So if asked to sign a petition, be wary. Read the initiative summary that is required to be printed at the top of the petition form. There are initiatives in circulation right now that would increase income taxes and undermine Proposition 13 protections for taxpayers. If there is a tax increase included, you may still decide to sign, but at least you will know the impact of your decision in a state where we already have the highest income rate, the highest state sales tax and were we rank in the top four in total tax burden. In other words, caveat emptor.

Jon Coupal is president of the Howard Jarvis Taxpayers Association — California’s largest grass-roots taxpayer organization dedicated to the protection of Proposition 13 and the advancement of taxpayers’ rights.

Threats of Increased Gun Control Result in Increased Statewide Sales

GunCalifornia’s experience with gun control and gun sales has created an ironic situation with significant implications for policy: Tighter regulations have increased along with firearms purchases.

The phenomenon cuts both for and against the prevailing party platforms on the political Left and Right. “The increase in handgun sales coincides with a dip in gun-related crimes,” for example, as the San Francisco Chronicle reported, lending support to conservatives’ insistence that most gun owners have no interest in breaking the law and no greater inclination toward violence. “The number of aggravated assaults in California involving a firearm dropped from more than 23,000 in 2005 to less than 16,000 last year,” the paper added. “The number of gun-related murders fell from 1,845 to 1,169 over the same time period.”

Growing unease

On the other hand, the statistics also reinforce the liberal contention that even very strict controls on guns can leave the Second Amendment intact, preserving citizens’ sport shooting and self-defense interests. In a further irony, however, the data indicates that robust gun sales have been boosted by a widespread perception among current gun owners that access to weaponry is being progressively sealed off.  “While more handguns are being sold in California, it doesn’t necessarily mean there are more gun owners. Some researchers have found the number of American households that own a firearm is at a 40-year low, even though transactions are climbing. This suggests a smaller group of people is collecting more weapons,” the Chronicle surmised.

The state’s 2014 ban on openly carrying unloaded guns, going into effect at the beginning of 2016, was “not expected to slow the growth in gun sales,” as SFist noted. Other new rules taking effect on the first of the year required that “pellet, BB, and airsoft guns must be brightly colored, to help distinguish them,” and that “concealed carry permit holders will no longer be allowed to bring their weapons onto school grounds or college campuses,” as the Christian Science Monitor reported.

But another impending law has raised the ire of a relatively broad group of activists and interest groups. January 1 triggers legislation, written and passed in the aftermath of the Isla Vista shooting, that “gives the police or family members the option to petition the courts to seize the guns and ammunition of someone they think poses a threat,” as the Guardian observed — “the first law of its kind in the country.”

Diminishing returns?

But, the paper noted, this so-called gun violence restraining order “has raised concerns from lawmakers and pro-gun groups about civil liberties and questions about how effective it will really be.” The now-customary wave of litigation set to emerge from the uncertain legal landscape was expected to refine the law’s implications, which legislators in Sacramento haggled over on the way to passage. “It will become clearer after petitions begin to flow through the California courts what kind of evidence, minimally, could result in the issuance of a temporary firearms restraining order,” according to the Guardian.

Other new restrictions on guns proposed this election season have raised further questions. While Lt. Gov. Gavin Newsom has begun campaigning on a policy that “would prohibit their possession and require anyone who has them to sell to a licensed firearm dealer, transfer them out of state or relinquish them to law enforcement for disposal,” as the Sacramento Bee reported, Gov. Jerry Brown has instead played up the limits of California restrictions that aren’t mirrored or reinforced by neighboring states and the federal government. “We have among the strictest gun control regulations in the country, and it doesn’t do us that much good if other states and the federal government is basically passive in this effort to keep guns out of the wrong hands,” Brown told CNN, according to the Bee.

Originally published by CalWatchdog.com

2016 Initiative bonanza sets stage for fights

As reported by the San Francisco Chronicle:

Measures ranging from a $9 billion school bond to a condom requirement for actors in pornographic movies are set to join the presidential candidates on November’s California ballot, with plenty more still to come.

Battle lines are being drawn in what could be one of the busiest — and most expensive — initiative seasons in California history.

“It’s likely to be a very long ballot,” said Jamie Court of Consumer Watchdog, a progressive group that’s sponsored a number of consumer-oriented initiatives over the years.

Besides the seven measures that have already qualified for the ballot — including one of nationwide interest that would cut prescription drug prices for state agencies — supporters of others are out on the streets, haranguing passersby in an effort to collect enough signatures to go before the voters next year.

Click here to read the full article

Legislation Hiking Initiative Filing Fee Faces Resistance

VotingUnexpected bipartisan opposition has formed against a piece of legislation designed to cut down on California’s sometimes outrageous ballot initiatives.

In addition to the left-leaning Consumer Watchdog organization, citizens’-rights groups like the California Taxpayers Association and the Howard Jarvis Taxpayers Association have mustered their members against the bill. Carmen Balber, executive director of Consumer Watchdog, told the San Francisco Chronicle “that only six of the 26 states that allow citizen initiatives have filing fees and that the highest is $500, in Mississippi and Wyoming.”

Hoping to stave off a shift in fortunes, Assemblyman Evan Low, D-Campbell, has already tweaked Assembly Bill 1100 in an effort to calm the drama. Co-authored by Assemblyman Richard Bloom, D-Santa Monica, the bill originally proposed a massive increase in the fee charged by the state to file an initiative. Currently just $200, Low and Bloom set out to hike the fee to $8,000 — a daunting number for some, but calculated to just about cover what it costs the state to pay the attorney general’s office for drafting each initiative’s title and summary.

Low was inspired to push for the reform by a contentious recent effort that would have created a so-called Sodomite Suppression Act. “Huntington Beach attorney Matt McLaughlin submitted a ballot measure in February that would have ‘any person who willingly touches another person of the same gender for purposes of sexual gratification be put to death by bullets to the head or by any other convenient method,’” as the Sacramento Bee recalled. “Determined to prevent the measure from moving forward, Attorney General Kamala Harris took the measure to court and was relieved of the official duty to write the title and 100-word summary necessary before signature-gathering.”

A checkered past

Proponents of Low’s reform insisted that the bill was about more than shutting down such lurid proposals. California’s ballot initiative system has seen its fair share of half-baked ideas over the years, drawing criticism from more conservative analysts concerned that the state’s view of direct democracy was too romantic and naive.

As the Chronicle noted, initiatives have now been filed that would ban alimony, create a secession commission, eliminate private power companies, fly the state flag above the national flag, “and call the state’s top elected official ‘president of California.’”

Another ongoing challenge, some critics noted, was guiding voters away from voting in favor of unaffordable but otherwise appealing measures.

In fact, Low’s efforts to curb crazy initiatives have not been the first — nor the first to do so by jacking up the price of admission. “Given the sheer number of proposals that have been submitted recently, the Legislature has actually already tried to make filing fees more expensive,” Civinomics noted. “Laws were submitted in 2009, 2010, and 2011 to raise the fee, but two of them were vetoed by then-governor Arnold Schwarzenegger and the other was dropped by the bill’s author.”

GOP opposition

For now, Republicans have recently tended more toward supporting a permissive initiative process, concerned that California lacks many other effective hedges against the state’s near-one-party rule and its more liberal judges, who largely dominate the courts. So when AB1100 came to a vote in the Assembly, votes for and against split almost exactly along party lines. Assemblywoman Shannon Grove, R-Bakersfield, put forth a popular argument on the right, warning “the higher fee would make it difficult for individuals and nonprofit groups to file for an initiative,” as the Los Angeles Times reported. “She said that if the increase in the cost of living since the fee was implemented was figured in, it would now be $2,700.”

Then, as the bill made its way to the Senate, reality set in. In committee, “the filing fee was trimmed from $8,000 to $2,500 and then to $2,000,” the Chronicle recounted. “The plan to hike the charge in lockstep with increases in the Consumer Price Index also disappeared.” Nevertheless, the changes weren’t enough to satisfy critics, who will likely have to count on Gov. Jerry Brown to stop the bill from becoming law.

Ballot Title Won’t Deter Pension Reform

pensionCostly government pension deals are devastating our public services – and this simple initiative gives voters the ability to stop sweetheart and unsustainable pension deals that politicians concoct behind closed doors with government union bosses. That’s why the politicians and union bosses oppose this initiative – and why they continue to try to mislead the public on what the initiative does. Despite their attempts to mislead, we are very confident the voters will understand the plain English requirements of this measure and overwhelmingly pass it in November 2016.

The next step in the campaign will be to commission a legal review the ballot measure “Title and Summary” concocted by state politicians. Once that review is completed, we will kick-off their signature drive to qualify the measure. 

The “Plain English” Requirements of the Pension Reform Initiative: 

1) Require voter approval of any defined benefit pensions for new government employees

2) Require voter approval of any increase in pensions for existing government employees

3) Prohibit any taxpayer subsidy of government retirement benefits in excess of 50% of the cost – unless voters expressly approve a higher contribution

4) Prohibit politicians and government agencies from delaying, impeding, or challenging any voter-approved state and local ballot measures regarding government compensation and benefits.

Chuck Reed, a former Mayor of San Jose, is a Democrat. Carl DeMaio, a former Councilmember of San Diego, is a Republican

Originally published by Fox and Hounds Daily

Potential Initiative To Increase Legislature to 12,700 Members

Would-be reformers have filed an initiative that, if adopted by voters, would make the California Legislature one of the largest – if not the largest – legislative bodies in the world. The Neighborhood Legislature Reform Act would require one Senator for every 10,000 Californians and one Assembly representative for every 5,000. This would mean that the Senate would increase from 40 to 3,850 members while the Assembly would balloon from 80 members to 7,700.

The stated goal of this proposal is to reduce the influence of special interests, make our system more democratic and provide greater access to legislative representatives.

While proponents of NLRA may have their hearts in the right place, the plan raises a number of concerns.  Special interests, who spent $48.5 million to lobby in just the first quarter of this year, are not likely to be deterred by the greater numbers of lawmakers.  Lobbyists, and those interests which employ them, will still have the capacity to track all the members and, because the numbers will provide a certain amount of anonymity, bribery and influence peddling could very well may be more difficult to detect.  On the other hand, the ever shrinking news media, which is often the public’s first line of defense for uncovering corruption, will likely struggle to keep up with the activities of nearly 12,000 representatives.

While larger numbers of lawmakers would appear to provide representation closer to home – currently each State Senator represents about a million constituents while Assembly members are responsible for half a million – the greater numbers might make it more difficult to hold politicians accountable.   Although the initiative measure provides for the creation of smaller working committees to conduct the more mundane business, the most important matters, like passing a state budget, would be voted on by all legislators.  If legislation is approved 5,999 to 5,551, would average Californians have any idea who to hold accountable for the result?

Then there is the question of cost.  While the initiative limits pay to $1 a year – working committee members would receive $50,000 annually– would taxpayers be expected to pay for thousands of offices for the new lawmakers?  How about cars, travel and other ancillary expenses that are currently reimbursed by California taxpayers?

Probably the biggest hurdle faced by NLRA is one of perception:  Most Californians would consider thousands of new politicians to be less welcome than a plague of locusts.

Still, this initiative measure has merit if it stimulates serious discussion of reform.  Another idea that receives consideration from time to time is the unicameral Legislature.  Since 1937, Nebraska has had a one-house Legislature with 49 representatives, and prominent political leaders of the past have backed the adoption of this system in California.  These have included Assembly Speaker Jess Unruh, Senate Minority Leader Ken Maddy and Senator Lucy Killea.

The unicameral Legislature was endorsed in concept by the California Constitution Revision Commission in the mid-1990s, with the recommendation that the current two-house system be replaced with a 121 member state Senate.

However, when it comes to reform of the California Legislature, the gold standard model remains the Texas Legislature, which is part-time, meeting every other year for no more than 140 days.  Lawmakers are paid $7,200 per year, although they do receive a per diem of $150 when in session.

California Legislators are full time and are the highest paid in all 50 states.

Over a recent five year period Texas job creation increased by 12.3 percent while California lagged behind at 7.7 percent.  The Tax Foundation ranks the business climate of Texas at 10 and California at 48 out of 50 states. Surveys of CEOs by Chief Executive Magazine consistently rate Texas at the top and California dead last as places to do business.

Is there a connection between the superior economic performance of Texas and the fact that it eschews a full-time and expensive Legislature on the California model?  Many Californians would like to find out.

Jon Coupal is president of the Howard Jarvis Taxpayers Association — California’s largest grass-roots taxpayer organization dedicated to the protection of Proposition 13 and the advancement of taxpayers’ rights.

Legislators Push to Raise Initiative Filing Fee

VotedA proposal to make it more expensive to file a ballot measure in California is moving closer to becoming law, worrying both liberal and conservative groups that frequently utilize the initiative process.

Democratic Assemblymen Evan Low of Campbell and Richard Bloom of Santa Monica have proposed a 12-fold increase in the fee charged to obtain a title and summary for a proposed ballot measure. Low introduced the measure after a public uproar over an outrageous ballot measure that proposed a death penalty for gays and lesbians.

“We live in California, the cradle of direct democracy, but we also need a threshold for reasonableness,” Low said in a press release. “Amending laws and making statewide policy is not something that should be taken lightly.”

The bill, which passed the State Assembly in May on 46-28 vote, is now quickly moving its way through the State Senate.

Sodomite Suppression Act spawns fee hike

Since 1943, any Californian with $200 has been able to obtain the necessary paperwork to begin collecting signatures to put their proposal on the ballot. The reasonable filing fee has allowed average citizens and grassroots organizations to shape the political debate. Often times, the text, title and summary are enough to generate free publicity for an idea, including outrageous and blatantly unconstitutional measures.

Earlier this year, Orange County attorney Matthew McLaughlin paid his $200 filing fee and submitted the necessary paperwork to circulate “The Sodomite Suppression Act.” The proposed initiative would have “put to death by bullets to the head” gays and lesbians as well as banned anyone “who espouses sodomistic propaganda” from holding public office, receiving government benefits or being employed by the state.

Low said that the anti-gay measure inspired his decision to introduce Assembly Bill 1100 to increase the filing fee.

“It’s disturbing to hear that a licensed member of the California State Bar is putting forward a measure that attacks lesbian and gay members in our community,” Low said in a March press release announcing the bill. “But Mr. McLaughlin’s immoral proposal is the just the latest – and most egregious – example of the need to further reform the initiative process.”

Anti-gay measure blocked, filing fee hike remains

Attorney General Kamala Harris refused to grant the measure a title and summary, and instead sought court approval to ignore the initiative. Earlier this week, California Superior Court Judge Raymond Cadei ruled in Harris’ favor, granting her the legal authority not to issue a title and summary.

With the court’s ruling to block the measure, one consumer advocacy group says that the filing fee hike is no longer needed.

“While we have reservations about how the court short-circuited the process, its decision made the bill irrelevant,” Carmen Balber, executive director of Consumer Watchdog, wrote in a letter to state lawmakers. “And, unlike the courts, AB 1100 won’t guarantee an end to similar initiatives. But it will stop legitimate citizen initiatives.”

That position was supported by the Los Angeles Times, which recently noted in an editorial that “the fee should not be used as a tool to make it harder to file undesirable initiatives.” Yet, despite the court’s ruling, Low is unwavering in his mission to pass a 12-fold increase in the filing fee.

“While the court’s ruling on this egregious initiative proposal is both legally and morally the right action to take, the events bring attention to the need to reform the initiative process,” he said.

Right, left oppose filing fee hike

Asm. Evan Low

Even before the court’s decision to block the anti-gay measure, groups on both sides of the aisle expressed concerns that a fee increase could limit the ability of average citizens to use the state’s tools of direct democracy.

Consumer Watchdog, one of the most vocal opponents to the filing fee hike, reviewed filing fees for more than two dozen states that have an initiative process. The overwhelming majority have no filing fee, with just five states charging a nominal fee. Currently, Mississippi has the highest filing fee in the country at $500.

“It’s outrageous that the state that birthed direct democracy would charge its citizens an initiative filing fee that is five times greater than the next highest state – Mississippi,” Consumer Watchdog argued in its opposition letter.

Opposition to AB1100 isn’t limited to Consumer Watchdog. Both the California Taxpayers Association and the Howard Jarvis Taxpayers Association have formally opposed the bill.

The filing fee alone doesn’t put a measure on the ballot. The threshold for qualifying a ballot measure is 5 percent of the total votes cast in the previous gubernatorial election. As a result of California’s record low turnout in last November’s election, that threshold is at its lowest in three decades, but still requires 365,880 valid signatures.

In 2010, a similar proposal passed both houses of the Legislature before it was vetoed by then-Governor Arnold Schwarzenegger. “While well-funded special interest groups would have no problem paying the sharply increased fee, it will make it more difficult for citizen groups to qualify an initiative,” Schwarzenegger wrote in his veto message.

This year’s bill will be heard by the Senate Appropriations Committee on June 29.

Originally published on CalWatchdog.com

Harris and Court Acted Correctly In Throwing Out Sodomite Suppression Act

No one should overreact in defense of the initiative process to the court decision allowing the Attorney General to throw out an initiative that is reprehensible and clearly unconstitutional, but we must be sure that the decision is not a step in expanding the power of any official to determine if an initiative is or is not constitutional.

The Sodomite Suppression Act is abominable and it is understandable that Attorney General Kamala Harris wants no part of it. But the initiative process finds itself more and more entangled with politicians’ decisions to perform official acts if the official thinks a proposed or successfully passed measure is unconstitutional. Since the initiative is a tool for the people to bypass politicians this situation is concerning.

Superior Court Judge Raymond M. Cadei relieved the AG of issuing a title and summary on the anti-gay initiative because the proposed initiative was “patently unconstitutional” and defendant, Matthew McLaughlin, defaulted. The Judge wrote, among other concerns, that preparing the title and summary for the measure would be a waste of time and resources. But, the Judge also noted that the initiative could “generate unnecessary divisions among the public.”

That is a curious phrase if allowed to stand alone in some future court challenge because in the rough and tumble world of politics divisions among the public over policy questions are par for the course.

The Sodomite Suppression Act is certainly an extraordinary state of affairs. Perhaps, because this situation is so egregious, this will be the only example that an attorney general will turn to the courts and ask that she or he be excused from performing a duty related to a controversial initiative.

Or just maybe a future attorney general would push the envelope on declaring a proposal unconstitutional. Then the people’s initiative process would be in jeopardy. Let’s hope no precedent has been set in that direction with this action.

It was only a couple of years ago that the attorney general and governor refused to defend an initiative passed by the voters, claiming the measure unconstitutional. In the instance of Proposition 8, which I did not support, I felt at least the proponents should be allowed to defend a measure passed by the voters. If the court determined a measure is unconstitutional then so be it.

As I have said before, courts determining the constitutionality of an initiative always have been the failsafe against initiatives that threaten constitutional rights and protections. We have seen that occur a number of times in California.

The danger lies in letting one or two elected officials declare a measure is unconstitutional and act accordingly. Determining what is constitutional is not always an obvious call. Remember, in many cases five United States Supreme Court justices tell the other four what is or it not constitutional.

In this particular circumstance, however, as long as we have not moved the line on elected officials interfering with the initiative process, the AG and the judge acted wisely.

Originally published by Fox and Hounds Daily

A One-Two Punch Against the Initiative Process at the Supreme Court

An Arizona case before the U.S. Supreme Court that challenges the state’s ballot initiative created redistricting commission could have such an effect on California politics that three former California governors, noted California political scientists, and a California state commission have all filed briefs in the case.

California voters also approved ballot measures that took the power to draw district lines away from the legislature and gave it to an independent commission. Proposition 11 in 2008 created the Commission to draw state legislative districts, Proposition 20 in 2010 allowed the commission to draw congressional districts. If the Arizona legislature were successful in court banning the commission more than the redistricting commissions would fall. Ultimately, the entire initiative process could be endangered.

The Arizona legislature is counting on the court to take Article 1 Section 4 of the United States Constitution at face value, that “the times, places and manner of holding elections for senators and representatives shall be prescribed in each state by the legislature thereof.”

In other words, only the legislature itself can create district lines, lawyers for the legislature claim. Reform movements in the Grand Canyon State and the Golden State rebelled against this authority arguing that legislators have a conflict of interest in setting up legislative districts, rigging the system and drawing districts that often resemble modern art paintings all in an effort to assure sitting legislators re-elections or maintaining the ruling party in power.

The court must decide if legislative power resides only with elected legislators. In the brief filed on behalf of former California governors George Deukmejian, Pete Wilson and Arnold Schwarzenegger, the definition of “legislature” is taken from Samuel Johnson’s famous 1755 dictionary to mean “[t]he power that makes laws.” The brief argues that congressional redistricting can be undertaken “by whatever lawmaking body the people of a State decide to vest with that power.”

The California Citizens Redistricting Commission brief reminds the court that in the state constitution, “All political power is inherent in the people.” Through the initiative process in California and Arizona, “both the people of the state and the elected state representatives are lawmaking bodies, both constitute the “Legislature” for purposes of the Elections Clause.”

Not just the power to redistrict is in jeopardy if the Supreme Court sides with the Arizona legislators say California political scientists at Stanford and UC Irvine in their brief. Other election reforms including California’s open primary and even direct primaries themselves may be in peril.

Take it one step further and a ruling by the Supreme Court striking down the power of initiative to supplant the legislature in redistricting just might open the door for the Supreme Court to consider a challenge to the initiative process itself.

Such a challenge is slowly working its way in the federal courts out of Colorado.

Former Colorado legislators argue in Kerr vs. Hickenlooper that the U.S. Constitution’s clause guaranteeing states a Republican form of government is violated by giving power to the people to make laws, and specifically in the Colorado instance, to vote on tax measures.

Attempting to undercut the initiative process by arguing that measures put on the ballot by the people violates the U. S. Constitution is as old as direct democracy in this country. In 1912, a telephone company in Oregon used the argument to challenge a tax imposed by voters. The court determined then, as it had in previous dealings with the Guarantee Clause going back as early as 1849, that what constitutes a Republican Form of Government is a political question.

Many legal experts thought the Colorado case would be dismissed because the issue was non-justiciable—meaning an issue over which the court cannot exercise its judicial authority. However, the Tenth Circuit Court agreed to allow the case to proceed although the defenders of the initiative are asking the Supreme Court to review that decision.

The way the people of California have chosen to govern themselves will be tested by these Supreme Court rulings dealing first with the Election Clause, and, perhaps, ultimately, the Guarantee Clause of the United States Constitution.

Joel Fox is the editor of Fox & Hounds and President of the Small Business Action Committee

Originally published on Fox and Hounds Daily

Legislatures Challenging Initiative Process in Federal Courts

Those who don’t like the initiative process may have found a powerful ally in the United States Constitution. I write “may” because precedent is not on their side. But that hasn’t stopped initiative critics from making the effort to enlist the court’s support — and the courts are at least listening.

On this page, I wrote about a challenge the United States Supreme Court is taking up from Arizona on the right of voters through the initiative process to set up a redistricting commission. The challenge came from the Arizona legislature, which argued that it was exclusively the legislature’s prerogative to set up congressional districts. As in California, voters passed an initiative in the Grand Canyon state creating a citizens redistricting commission.

An earlier challenge in federal courts from Colorado argues that the U.S. Constitution guarantees to the states a Republican form of government, which some legislators say, is undone by direct democracy. I have written about the Colorado case, Kerr vs. Hickenlooper, here before.

As set forth in that previous article, “Attempting to undercut the initiative process by arguing that direct democracy violates the U. S. Constitution is as old as direct democracy in this country. In 1912, a telephone company in Oregon used the argument to challenge a tax imposed by voters. The court determined then, as it had in previous dealings with the Guarantee Clause going back as early as 1849, that what constitutes a Republican Form of Government is a political question.”

Those challenging a Colorado initiative that allows voters to affirm any tax increases claim that core legislative powers dealing with taxing and spending have been put at risk leading to what they say is a “slow, inexorable slide into fiscal dysfunction.”

Many legal experts thought the case would be dismissed because the issue was non-justiciable—meaning an issue over which the court cannot exercise its judicial authority. However, the Tenth Circuit Court agreed to allow the case to proceed.

Pepperdine University law professor Derek Muller thinks the Tenth Circuit decision will be overturned on appeal. He called the Tenth Circuit’s decision “a novel judicial opinion written on dubious legal grounds.”

Still, one has to wonder if the courts are looking for a way to subdue the initiative process.

Look at the record. The U.S. Supreme Court has agreed to hear the redistricting case. The Tenth Circuit has allowed the Colorado case to continue to the surprise of many experts. Here in California, former state Supreme Court chief justice Ronald George has been a vocal critic of the initiative process.

A key question for the courts is where to draw the line on where a legislative power is so fundamental that citizens cannot make constitutional changes through direct democracy.

Previous courts have not delved into the waters the courts labeled “political.” With increased use of initiatives by the people to legislate over the last four decades will current courts see things differently?

Joel Fox is Editor of Fox & Hounds and President of the Small Business Action Committee.

This piece was originally published on Fox and Hounds Daily.