Have you heard the reasons why many people believe Prop 8 passed this past November? It's the bigoted voters, say some, and they can't be trusted! It was a failed campaign by the gay community, say others. And others still say it was the huge amount of money spent by out-of-state players like the Mormon Church.
But all of those explanations are ignoring an essential part of the story of how the initiative passed. In light of the upcoming California Supreme Court ruling, I thought I'd tell you about the missing part of the Prop 8 story.
Perhaps the biggest reason that Proposition 8 was passed by California voters is the broken initiative system. I am in no way bemoaning the initiative process itself, because I am a huge supporter of it, I am pointing out the need to reform the process in California and many other states.
If you don't understand what I am saying, consider this - Prop 8 was a constitutional amendment. It passed with only about 52.3 percent of the vote. Voter turnout for the initiative was about 79.4 percent. Since 52.3 percent of 79.4 percent is about 41.5 percent, that means that only 41.5 percent of California voters approved this amendment to their state constitution.
Let me say that again - 8.5 percentage points less than a majority of registered voters passed Prop 8, a constitutional amendmnet.
That is outrageous. If you look at the United States Constitution, it is nearly impossible to amend it, because the Founding Fathers knew that it should not be amended without huge popular support. That is not the case in California, and the two dozen or so other states that have ballot initiatives. A minority of California voters amended their Constitution - Prop 8 did not have as much popular support as it should have in order to pass.
The threshold is too low in California for voters to amend their constitution. This, combined with other broken parts of their initiative system (eg, no campaign finance regulations and no deliberative process), is one of the biggest reasons why Prop 8 passed in November. That needs to change, and luckily there are a few options to reform this problem.
In Nevada, if a citizen wants to amend their state constitution by initiative, it works like this:
If the petition is sufficient, the amendment is placed on the next general election ballot. Nevada is the only I&R state to require voters to approve a proposed amendment twice, requiring voter approval in two successive elections before the amendment becomes law. The language, description, arguments, and question number must be the same on both ballots. If the question passes the second time, it becomes part of the Nevada Constitution upon certification of the election results. If the question fails to pass a second time, no further action is taken.
If that were the system in California, Prop 8 would still be pending, and maybe wouldn't have passed in second round of voting.
However, a different (and I think superior) system wouldn't even have allowed Prop 8 to pass in the first round of voting. It is part of the National Initiative for Democracy, an effort for national ballot initiatives. While that may seem threatening to the gay community (because of some kind of hypothetical national Prop 8), it would actually be a good thing for the initiative process, and therefore for the gay community.
A new national ballot initiative system would offer an amazing opportunity for reform. Just for starters, the National Initiative includes a higher threshold for constitutional amendments, a jury-like committee of citizens that reviews and holds hearings on each initiative, strict campaign finance rules, and an administrative body that oversees all initiative elections.
More revelant to the specific case of Prop 8, the National Initiative offers a unique kind of supermajority. It is similar to the Nevada system in that there are two separate votes on a Constitutional amendment by initiative (at least six months apart), but it differs in that it requires a majority of registered voters to approve the amendment in each election.
If that were the case in California in 2008, Proposition 8 would have needed to get over 60 percent approval from the voters that showed up at the polls in order to pass.
Unfortunately, that was not the case, and in California a minority of citizens has taken away the rights of another minority. A broken initiative process has resulted in some pretty broken results, just showing that the initiative process there needs to be reformed.
Also, out-of-state contributors funded much of the campaign, from both sides. Lacking any kind of campaign finance rules, the California initiative process has been taken advantage of by out of state interests, wealthy people who can afford to donate huge sums, and powerful corporations. There are many solutions to this problem, including controls on paid signature gatherers, but the solutions to this problem have been somewhat complicated by past court rulings.
If you take nothing else away from this diary, take this: Do not throw the baby out with the bathwater. The initiative process is a great thing - it offers citizens the chance to address issues that the legislature refuses to address. However, just like representative government, if the initiative process is in need of reform, it will produce some awful results.