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

January 28, 2015 By Joel Fox 2 Comments

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

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Will young CA justices use Vergara case to audition for SCOTUS?

December 29, 2014 By Chris Reed 1 Comment

The Volokh Conspiracy, the wonderful legal blog founded by UCLA law professor Eugene Volokh, had a provocative post about what might happen now that Gov. Jerry Brown has named three acclaimed youngish scholars to the California Supreme Court. George Washington University law professor Orin Kerr writes:

Leondra Kruger has been confirmed to a seat on the Supreme Court of California, a position to which she was nominated by Governor Jerry Brown last month. Governor Brown previously appointed Goodwin Liu (confirmed in 2011) and Tino Cuellar (confirmed in August).

These appointments make the California Supreme Court a court of national interest, in part because a Democratic President would likely consider Brown’s picks if there is a future U.S. Supreme Court vacancy on his or her watch. Brown’s picks share diversity, elite credentials, and youth. Given that prior judicial experience is a big asset for those hoping to land on a Supreme Court shortlist — it’s not required, but it’s helpful — Brown’s nominations likely expand the set of candidates to be considered if or when there is a future SCOTUS vacancy under a Democratic president in the next few Presidential election cycles.

As the picture above suggests, Kruger has already handled big cases before SCOTUS, representing the Obama administration. If Kruger, Liu and Cuellar are intrigued by this possible promotion, that seems to make it more likely that individually or together they will stake out bold new stands on major issues. There’s a pent-up desire among millions of liberals for more Warren Court-style sweeping rulings addressing perceived issues of social justice. A Democratic president, even a center-left politician, would see appointing activist judges to the high court as an easy way to please big Dem constituencies.

Brown vs. Board of Education for 21st century?

This could bode very well for the reformers behind the Vergara vs. California case.

The trial court judge, Rolf Treu, likened state laws that funnel the worst teachers to the schools with the most troubled students to segregated schools that existed in the South before the 1954 Brown vs. Board of Education ruling, one of the most monumental in U.S. Supreme Court history. The state is now appealing Treu’s finding that teacher protection laws are unconstitutional because of their negative effect on minority students, and the case is close to certain to end up before the California Supreme Court.

If I were a CTA or CFT lawyer, this dynamic would worry me a lot — especially after reading the Vergara editorial in the most influential journal of liberal opinion, the New York Times:

The ruling opens a new chapter in the equal education struggle. It also underscores a shameful problem that has cast a long shadow over the lives of children, not just in California but in the rest of the country as well.

This article was originally published by CalWatchdog.com

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What will it take to wake up an apathetic CA … prisoner release?

June 3, 2011 By James V. Lacy Leave a Comment

As the U.S. budget exploded with the twin trillion dollar TARP and Stimulus bills, Cash for Clunkers and $440 billion in losses at Fannie and Freddie, the voting public responded with the Tea Party movement that swept through America in 2009 and 2010. During the 2010 election cycle, while the nation was electing 80 (of 435) new representatives, California voters paid no heed, returning 96% of incumbents to office – a record that would have made the old Soviet Politburo proud.

This same West Coast voter apathy has allowed a $26 billion budget deficit to remain unresolved for years. Rather than solve the fiscal spending crisis, Governor Brown has proposed tax hikes to close the gap, while protecting the all powerful labor unions in California, whose pension, pay and healthcare tabs have placed many California cities in near bankruptcy. California voters have responded with typical apathy to the Brown tax hike proposal paying little attention and raising no alarm. The same cannot be said for the United States Supreme Court which ruled 5-4 in Brown vs. Plata that California must release up to 46,000 inmates from California prisons citing deplorable conditions which caused “needless suffering and death” and “amounted to cruel and unusual punishment”. Will Californians remain apathetic when tens of thousands of convicted felons are released to the streets and neighborhoods of their communities?

That conditions in California prisons are deplorable cannot be debated. The state’s prisons, which were built to hold 80,000 inmates, hold 143,335 inmates today, according to Matthew Cate, secretary of California’s Department of Corrections and Rehabilitation.

Supreme Court Justice Anthony M. Kennedy, a Sacramento native, spoke of suicidal prisoners being held in “telephone booth-sized cages without toilets” and others, sick and in pain, who died before being seen by a doctor. As many as “200 prisoners may live in a gymnasium, and as many as 54 may share a single toilet,” he said.

Justice Anton Scalia, delivering his own dissent, said the majority had affirmed “what is perhaps the most radical injunction issued by a court in our nation’s history.” He added, “Terrible things are sure to happen as a consequence of this outrageous order.”

Los Angeles County Dist. Atty. Steve Cooley agreed, stating, “Citizens will pay a real price as crime victims, as thousands of convicted felons will be on the streets with minimal supervision.”

How long can Californians remained apathetic to their political and fiscal problems? In 1999, California pols wasted the $25 billion “tobacco settlement” to pay for its current spending instead of “health care through 2025” as was planned. After recalling Gray Davis for running a $30 billion deficit in 2003, they paid scant attention as politicians built another deficit hole that the Legislative Analysts Office reports will be “$20 billion per year for years to come”.

If such fiscal insanity could not stir the California electorate, as it did Tea Party members across America, the release of 46,000 convicted felons may awaken a sleeping giant. California’s 23 million registered voters cleaned up their streets and neighborhood with a no-nonsense “three strikes” policy that put repeat offenders behind bars while creating the nation’s largest prison population. Releasing 46,000 felons, 30% of its inmates, to its relatively safe communities and neighborhoods will undoubtedly cause a spike in crime that may finally gain their attention.

But California voters, if they awaken at all, will quickly learn that they may be too late. City employee pensions, pay and healthcare have also been allowed to spike during the spending binge, resulting in city deficits and lay-offs of police, fire, and probation officers. At the very time when they are most needed, their cities will be forced to lay off these critical employees.

Will California voters remain apathetic, or will this epical Supreme Court decision trigger California’s own Tea Party movement?

About the author: Robert J Cri sti ano PhD is the Real Estate Professional in Residence at Chapman University in Orange, CA, a senior Fellow at the Pacific Research Institute in San Francisco, CA and President of the international investment firm, L88

 


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