Expect an effort to give more power to initiative proponents to protect measures passed by the voters. This effort will not split the political community along ideological lines as many issues often do. All sides appear concerned by the possibility of elected officials essentially vetoing an initiative they do not like by not defending it in court.
Following the United States Supreme Court decision on Proposition 8 based on the fact that initiative supporters did not have standing to argue for their voter approved initiative in court when state officials refused to do so, trepidation has been expressed by groups and individuals of varying viewpoints on public matters including: The Howard Jarvis Taxpayers Association, Common Cause, UC Irvine Law School Dean Irwin Chemerinsky, and Lt. Governor Gavin Newsom.
Not everybody has expressed concern, however.
When asked about this vulnerability of the initiative process exposed by the court, Governor Jerry Brown seemed to shrug it off when he said the situation was very unlikely to occur again. But if it did, he added: “we’ll be able to deal with it.”
The concern here and in other quarters is: Who is the “we” he refers to?
The initiative process is an instrument reserved to the people and outside the grasp of elected officials. Yet, elected officials control an initiative’s effectiveness by refusing to come to its defense. In such circumstances, there is no voice to support the measure in an institution designed for argument and deliberation.
While California courts have accepted initiative proponents as defenders of initiatives, legal questions concerning the United States Constitution end up in front of federal courts with the Supreme Court declaring that initiative proponents have no standing.
How can this problem be prevented in the future?
Chemerinsky suggested an outside attorney be hired by government officials to represent the interests of the majority.
Others have offered that a measure be passed that requires the Attorney General to take on the role of defending the measure.
Given the nature of the initiative process, it seems to me that the less connection with government officials the better. A half-hearted defense or an attorney selected because of connections rather than passion for an idea will not do.
The California constitution should be changed to give proponents the right to defend against legal challenges if government officials refuse. Such a proposition would met the requirement set out by the Supreme Court that there be a formal delegation of “authority” to the defenders of an initiative. A state constitutional amendment can bestow that authority on the measure’s proponents.