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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.[1] 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.

Originally posted to rossl on Mon May 25, 2009 at 05:55 PM PDT.

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Comment Preferences

  •  Prop 8 is the tip of the iceberg (19+ / 0-)

    when it comes to the problems with California's ballot initiative system. It's the reason the state is bankrupt and has a lower credit rating than Arkansas.

  •  let's keep out fingers and toes (5+ / 0-)

    and everything else crossed that the court will also view this as a constitutional amendment and rule that this vote did not constitute such.  

  •  How old are you again? Dang, that was way too (2+ / 0-)
    Recommended by:
    rossl, CornSyrupAwareness

    much math!  No, seriously, you're right to a point. The initiative process in CA is messed up.  We need two-thirds to pass a budget, but less than 50% can impose sanctions on a marginalized group.  Doesn't make sense.

    I used to sign all of the initiative petitions in CA because some poor schmuck was getting paid by the signature.  I figured, let the people decide.  I have since changed my mind.  It's taking too much responsibility off of the CA legislature.  They just toss hot potatoes out to the people so they can't be held responsible for tough decisions.

    I do think the GLBQTI leaders made a huge mistake not putting GLBQTI faces in the ads against Prop 8.  What did a straight girl breaking her heel have to do with Gay rights?  Nothing.  I understand the people responsible have all been fired, but that doesn't seem to be enough. They should be held financially responsible for the next round of ads.

    Have you forgotten about Jesus? Don't you think it's time that you did?

    by uc booker on Mon May 25, 2009 at 06:11:02 PM PDT

    •  I think it would be great (2+ / 0-)
      Recommended by:
      CornSyrupAwareness, uc booker

      that there are lots of initiatives, as long as the system is working, but it is not, unfortunately.

      And remember - not every law on the ballot is an initiative.  For instance, this most recent special election was made up entirely of legislative referendums, which are bills that the state legislature sends to the people.

      •  I'm out of state right now on a family emergency. (1+ / 0-)
        Recommended by:

        My absentee ballot never showed up and I'm supposed to be on the permanent absentee ballot list.  I really didn't know what was going on with the last election, just heard it was another Ahnuld flop.  I loved the last one when he called the Dems "Girlie Men" because he thought his props would pass.  They went down like a Baptist girl on a Saturday night.

        Have you forgotten about Jesus? Don't you think it's time that you did?

        by uc booker on Mon May 25, 2009 at 06:23:13 PM PDT

        [ Parent ]

  •  Other reasons Prop 8 failed.. (7+ / 0-)
    1. Some people didn't know what they were voting on. You had to vote Yes to deny people rights, and No to uphold rights. That was confusing for many. I was standing with a sign that said No on Prop 8 and people asked me why I was against gay marriage.
    1. Barack Obama was not against Prop 8, not in any high profile way. Had he been it may have failed.
    1. Mormon Tongan support as well as African American and Catholic support to go along with the LDS support that was well known.

    Very good stuff here rossl. Thanks for this, it is an absurd system.  

  •  Democracy? Not in my institution (0+ / 0-)

    Democracy (in a very limited form) is considered a good way to elect our country's leaders, and run our country.

    Open discussion, hear the points of view, choose the person who supports out points of view the best...

    Amazing we don't use ths system in corporations, government departments, and all large institutions.

    But we don't. The most common system of governance in large institutions more resembles a feudal barony. With death (by firing) for dissent. Modern large institutions are bigger than any feudal barony.

    An excuse? We need to have "Someone in Charge" to make decisions. That worked well, ask the vassels.

    Proposing democracy in the workplace is like peeing in church. Unacceptable. Why?

  •  Ballot initiatives the media neglect (4+ / 0-)

    Ballot initiatives are the origin of most reforms, such as women's suffrage (passed in 13 states before Congress went along), "Sunshine" laws, publicly financed elections (passed by initiative in 6 of 7 states with them), medical marijuana ( in 9 of 13 states) and increasing minimum wages (in all 6 states that tried in 2006). See for more examples and references. The media have seized on the problem initiatives. They generally kiss up to politicians.

    Here in Colo., initiatives gave us the country's first Renewable Energy Mandate (Amendment 37), the country's strongest ban on lobbyists giving politicians ANYTHING (41), campaign finance reform (27), increased K-12 funding (23),  Background Checks at Gun Shows (22), Medical Marijuana (20),  Campaign Finance Reform (15) cleaning up huge hog farms (14), Term Limits (12), etc. just in the last 6 general elections.

    Like Ross says, don't throw out the baby with the bathwater. These are some pretty cute babies!

    Vote at to take the "mock" out of democracy!

    by Evan Ravitz on Mon May 25, 2009 at 06:42:23 PM PDT

  •  Good Point! (4+ / 0-)

    It always strike me as amazing that any Constitution can be altered by a one-off, simple majority vote.  If this were the case for the US Government, the US Constitution would be positively gutted.

    California needs to get a more thoughtful constitution amendment process like Iowa or Massachusetts.

    I like the silence of a church, before the service begins better than any preaching. ~Ralph Waldo Emerson

    by Norwegian Chef on Mon May 25, 2009 at 07:51:24 PM PDT

  •  Marriage Equality/ Federal Argument (0+ / 0-)

    Dear President Obama,

                    I’m writing to you, as a member of a minority group, seeking your opinion regarding your views on “equal protection under the law”.  I am a citizen of the United States, I am gay, and therefore am a member of a minority group. The debate regarding same sex civil marriages has recently hit fever pitch in this country. Recently, Maine Governor John Baldacci signed his state's same-sex marriage bill less than an hour after the legislature approved it. He stated, "I have come to believe that this is a question of fairness and of equal protection under the law, and that a civil union is not equal to civil marriage."
                   Why is it that Federal Law does not seem to uphold the same high standard of fairness and equal protection under the law? In fact, Federal Law actually pro-actively discriminates against couples that legally have same-sex civil marriages. The fact is that the federal Defense of Marriage Act defines marriage as a union between a man and a woman. The act also specifically denies federal benefits to same-sex couples that have legally state sanctioned civil marriages. The act further dictates that any federal law that applies to married couples does not apply to same-sex couples with legal civil marriages. Furthermore because of the federal Defense of Marriage Act the United States Census Bureau is currently “editing” the 2010 census responses of same-sex couples that married legally in California, Massachusetts, Iowa, Maine, and Connecticut.  Does that sound like the United States of America? When asked to describe their relationships to others in their household, if a respondent refers to a person of the same gender as their "husband/wife" on the 2010 census form, the Census Bureau will automatically assign them to the "unmarried partner" category.  Legally married same-sex couples will be indistinguishable in census data from those who chose "unmarried partner" to describe their relationship.  The federal government does not count us, and apparently according to the government we don’t count.
                      As a physician radiation oncologist who treats hundreds of indigent/ un-insured, as well as, insured patients (straight and gay) annually in Los Angeles, I am particularly outraged at the fact that the federal government continues to discriminate against legal same-sex couples and their children and family members by specifically leaving them out of the federal Family Medical Leave Act (FMLA). This Act requires covered employers to give eligible employees up to twelve weeks of unpaid leave for their own serious health condition or to care for a family member with a serious health condition. Currently, the FMLA does not require employers to provide leave to care for a legally married same-sex spouse. Are we not human? Do we not deserve the same compassion and assurances from our government to which we pay taxes, as other citizens of the United States? Is this consistent with “fairness” and “equal protection under the law”?
                   How would you feel if this country still denied inter-racial marriages simply because 51% of the population felt they were immoral or un-ethical or unnatural?  The state of Hawaii, not the United States of America, allowed your parents to marry in 1961. There was a lack of federal leadership, yet finally in 1968 all state inter-racial bans on marriage were thrown out.  This was a very long time to wait for equality, in fact, as I’m sure you are aware the fight for inter-racial marriage began in 1948, it took 20 years of states arguing, state constitutions being “amended” to allow discrimination (sound familiar), until all the madness was finally overturned by the federal government because they finally did the right thing and gave these citizens equal protection under the law.
                  As Americans did we not learn from our ugly history?  As an African American growing up in the United States, you of all people, should recognize the need for federal regulation to protect and treat all citizens equally. Why do you feel gays who chose to have a civil marriage, should be treated differently than inter-racial couples? Why does the “equal protection under the law” clause in our constitution not apply to us? If you think homosexuality is a lifestyle choice that can somehow be overcome, and therefore not be given an equal if not protected status, then I ask you to think about this. Suppose someone told you, you could not have federal recognition and rights under marriage, you could not be counted in the census and that your responses to the census will be edited, and you could not benefit from the Family Medical Leave Act, unless you were forced to separate from Michelle, the person you love dearly, and marry another man. If you did that then you w
    ould be recognized as married. How unnatural would that feel for you? Get the point? We are born gay, just as you were born black.  No difference. Just as you had no choice in being born black, we had no choice in being born gay.  Furthermore, you certainly can't argue that you "chose" to be heterosexual; it is a ludicrous argument when people say we "choose to be gay".  We certainly have more similarities in our plight for equal protection under the law than differences. Remember,  this is not a religious argument, it is a civil rights argument. We don’t want to force religions to accept gay marriage; we just want equal protection under the law. We don’t want to force anyone into saying they believe in gay marriage, everyone has the right to believe what they want.  We want to be treated equally and with dignity;  and not ostracized by our federal government.
                 President Obama, I am asking you to think about your own experiences growing up in this country as a minority, and how helpful the federal government was in assuring you equal protection and equal rights under the law. My husband and I are law abiding, federal tax paying citizens, who contribute greatly to our community and society at large; we along with millions of other same sex couples are simply asking to be treated equally by our government. Is that too much to ask for in the country for which you are president? I am calling upon you, President Obama, to stand up to the narrow-minded bigotry that has made its way into federal law and to do the right thing. I am calling upon you to forcefully overturn the federal Defense of Marriage Act. I am calling upon you to be the agent of change, which you had talked about during your campaign. I am calling upon you do to do what is right and just, and treat all Americans equally. I am calling upon you to help secure passage of the bill now moving through Congress imposing new federal penalties for anti-gay hate crimes, as well as legislation allowing gays to serve in the military.  I am calling upon you to call for vast federal civil rights legislation, outlawing discrimination based on sexual orientation and granting us a basic umbrella of protections in employment, education, and housing.
                Like you, I believe that everyone can help contribute to change for the better in our country. Change we can believe in. Five states have legalized same sex civil marriages; several are well on their way. We need a leader to insure equality. It took twenty years for the federal government to put an end to all the anti inter-racial marriage bans in this country, how long we will have to wait?



  •  Thanks for bringing this up (1+ / 0-)
    Recommended by:

    ... I'm trying to be optimistic as tomorrow morning gets closer and closer. I'll be having a drink tomorrow either way, but I'm praying, hoping and wishing for a good result. Regardless of what happens, our solidarity will remain.

    ~ peace  

    "Progress is not automatic; the world grows better because people wish that it should, and take the right steps to make it better." ~ Jane Addams

    by Curiosity on Mon May 25, 2009 at 08:47:52 PM PDT

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