Dan Walters: Legality of advisory ballot measures needs judicial clarity

07/28/2014 12:00 AM

07/28/2014 12:14 PM

Nothing in California’s Constitution or statute law authorizes the Legislature or the initiative process to place nonbinding advisory measures on the ballot, soliciting voter sentiment on some issue.

Despite the lack of legal authority, the Legislature did it twice before, in 1933, and an advisory measure was placed on the ballot via initiative in 1982.

However, when another advisory initiative qualified for the 1984 ballot, urging Congress to pass a constitutional amendment for a balanced budget, the state Supreme Court declared that “an initiative which seeks to do something other than enact a statute … is not within the initiative power reserved by the people.”

It was, by the way, a liberal Supreme Court headed by Chief Justice Rose Bird, who was appointed by Jerry Brown during his first governorship.

Three decades later, the issue has arisen again.

This month, Brown allowed a bill placing an advisory measure on the Nov. 4 ballot to become law without his signature.

He said he agreed with its intent – enactment of a federal constitutional amendment to overturn the U.S. Supreme Court decision lifting barriers to corporate campaign contributions to candidates for federal office.

However, he said he is “not inclined to repeat this practice of seeking advisory opinions from the voters” that would “clutter our ballots.”

It was, as noted in this space previously, a somewhat cowardly and hypocritical act, since Brown eagerly accepted corporate contributions, which are not banned in state campaigns, and they are a big chunk of his $22.4 million re-election war chest.

But was the act also illegal?

Last week, the Howard Jarvis Taxpayers Association filed suit to remove the advisory measure from the ballot, declaring that its “shameless purpose” was to lure more liberal voters to the polls in November and citing the lack of specific authority for advisory measures.

Since the 1984 Supreme Court decision implied that advisory measures are unauthorized, it’s certainly an issue that needs clarification as soon as possible. If a measure is illegal, it shouldn’t be on the ballot.

There’s more than this measure at stake. Kevin de León, the soon-to-be president pro tem of the state Senate, has amended a bill on the Assembly floor to place another advisory measure on the ballot, urging Congress to pass comprehensive immigration reform.

There’s little doubt that de León sees it as a way of countering the likelihood of an ultra-low turnout of Latino voters who may be decisive in close Senate contests.

Senate Bill 1402 could put Brown in a political bind. Notwithstanding his words about cluttering the ballot, how could he deny Latino activists what he has just granted “netroots” activists?

A rapid decision on the lawsuit would settle the issue once and for all.

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