The problem with Prop 8 and simple majority voter initiatives
On Sunday the L.A. Times reported on a speech by California Supreme Court Chief Justice Ronald M. George. Chief Justice George is best known on the national stage for authoring the 2008 In re Marriage Cases opinion that legalized same-sex marriage in California. His most recent address was about California Proposition 8 and his criticism of the voter initiative process. And while I have profound disagreements with Chief Justice George’s In re Marriage Cases majority opinion, I agree at least in part with his criticism of voter initiatives
Voter initiatives in most states require a certain minimum number of signatures in order to place the initiative on the ballot. Chief Justice George laments that these initiatives are often funded by “special interests,” and that the legislature and even the courts are thereby restricted by the use or threat of voter initiatives. I agree this can be problematic, but so also can judicial decisions that overstep the general boundaries of the separation of powers model. I am much more concerned with the fact that in some jurisdictions, such as California, laws and even constitutions may be altered by a simple majority.
Individual rights are relatively meaningless if they can be taken away by a simple majority of voters. If the small, unpopular minority doesn’t enjoy the same enumerated freedoms as other citizens, then it isn’t truly a free society. This goes for any minority protected by state or national constitution or law. The major flaw with the California initiave scheme isn’t that interest groups can get measures placed on the ballot. It’s the fact that only a simple majority of votes is required to change the law or state constitution. Thus, with 52% of the vote, a measure like Proposition 8 can pass.
I think Chief Justice George and the other signers of the majority opinion were dead wrong in In re Marriage Cases. Frankly, I don’t even think several of the plaintiffs properly had standing to bring suit. And I am not opposed to the possibility of voter referendums overturning judicial opinions. But there must, at the very least, be a super-majority requirement or some other mechanism that ensures that unpopular minorities will still be protected. Mormons, of all people, can appreciate the peril of being unpopular and small in number.
The excerpts from Chief Justice George’s remarks make it clear that he is focused on other issues, such as California’s funding problems and any curtailing of his own judicial power. But I agree with him that the voter initiative process needs an over-haul.
