A Pointless Referendum

Jerry Brown

A prominent election lawyer has filed a referendum to block SB 202 -- the controversial legislation just enacted to move all initiatives to the November ballot.

But one wonders why. Since the referendum is almost certainly meaningless.

How's that?

Because the referendum can't block the action it wants to block--the move of ballot initiatives off the June 2012 primary ballot and onto the November 2012 general election.

Here's why.

The plain language of the constitution says that initiatives appear on general election and special election ballots.

But, as the Sacramento Bee's Dan Walters recounts in a column on this issue, four decades ago Jerry Brown, as the Secretary of State, had primary elections classified as general elections so that initiatives could be placed upon primary ballots.

This law, signed by Gov. Brown, effectively reversed Secretary of State Brown's decision.

Now typically, a referendum, once it qualified, would suspend the new law. But in this case, that doesn't mean that initiatives would go back on the June ballot.

What it means is that the Secretary of State -- now Debra Bowen, a Democrat -- would get to decide.

For political reasons (Democrats backed SB 202 and Republicans opposed it), practical reasons (reversing this change would create more work for her office) and constitutional ones (the constitution still says initiatives belong on general election ballots), she would have little incentive to put initiatives back on next June's ballot.

So whatever happens with this referendum, voters will only see initiatives on next November ballot.

So what's the point of the referendum?

(A counter view comes from one of the state's leading initiative lawyers, Tom Hiltachk, who argues at Fox & Hounds Daily that the constitutional language doesn't matter as much in this case because election law -- the election law affected by SB 202 and this referendum -- make June a "general election" for legal purposes. We will see who's right -- if the referendum's backers can qualify the measure, which won't be easy).

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