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Stanford Criminal Justice Center
Stanford Criminal Justice Center

Considering CA’s Voter Initiative System

The Chief Justice of the California Supreme Court has written an Op Ed critical of California’s system of using voter initiatives to amend the state constitution.

“A matter of great concern to people in and out of government is the increasing use of the ballot initiative process to bring about constitutional and statutory changes, especially in the structure and powers of government. Although two dozen states permit government by voter initiative, nowhere else is the practice as extreme as in California,” says Chief Justice Ronald George. “These frequent amendments have rendered our state government dysfunctional.”

He’s right of course, and he should know. As the Chief Justice of the state’s highest court, one of his primary responsibilities is to interpret state law, including statutes enacted by the legislature, initiatives adopted by the voters, and the constitution itself. Thus, he’s uniquely positioned to know whether our method of constitutional amendment makes sense as a mechanism of governance.

The Chief Justice does not mention in his Op Ed the many criminal justice policies that have been adopted via voter initiative in recent years, but these are certainly worthy of being added to the list of initiatives that make our state difficult to govern. Beginning with the Three Strikes Law in 1994 and continuing through Marsy’s Law in 2008, California’s voters have adopted a slew of initiatives that have contributed to the state’s bloated prison system, overcrowded jails, and heavy probation caseloads. It’s possible that these laws are keeping crime rates down (we don’t actually know – the newest and best social science research cannot tell us conclusively) but even if they are keeping crime rates down, these laws are not necessarily the safest or cheapest way to accomplish that objective.

The Chief Justice makes some very valid arguments about the dysfunctional nature of California’s constitutional amendment process. Voter initiatives do not make sense as a mechanism for amending the constitution. Of course, ending the practice of using initiatives to amend the constitution does mean throwing the whole system out – we could continue to use initiatives for other purposes, like declaring the intent of the voters to influence public policy in one direction or another. This is a perfectly healthy use of the voter initiative system in a democracy.

But, as the Chief Justice suggests, using voter initiatives to alter the foundation of our state’s system of governance causes enough problems that it’s time to seriously reconsider how we do business.

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