A Very Dark Day for Democracy and the Rule of Law

In the Great California Tax Battle of 2024, the California Supreme Court Decides to Take the Path of the John Roberts Supreme Court on Voting Rights and Adherence to Legal Precedent

This morning, in a significant defeat for democracy and the rule of law, the California Supreme Court held that the California Taxpayer Protection and Government Accountability Act (the “TPGA”) will not proceed to the November 2024 ballot.¹

I do not say this lightly but the decision today is as much a wrecking ball to democratic voting rights, reliance on long term case precedent, and complete and total judicial inconsistency as any decision that we have seen handed down from the John Roberts-led United States Supreme Court.

Because the public is largely being kept in the dark about what is transpiring, I have written extensively about the TPGA and the legal challenge to it in an attempt to educate the public.² During the oral arguments last month, I live-tweeted the oral arguments.³ I had hoped this education would be unnecessary. Unfortunately, my hopes have been dashed.

Here is what has happened. The Governor and the Democratic leaders of the State Legislature opposed the TPGA. Worried that voters might pass the TPGA despite their strongly stated opposition and not wanting to engage in the hard work, typical of democracy, of persuading the voters of California to see it their way, they chose an alternative of preventing its passage.

They asked the California Supreme Court to remove the TPGA from the ballot to ensure that the voters could not vote on it. That way, even if a majority of voters wanted the TPGA, they would not be able to vote for it.

It would be akin to running for re-election as President of the United States and losing re-election (including a majority of the popular vote) in the electoral college but then asking the courts to invalidate the result on technicalities that had no impact on an otherwise free and fair election result. Or, failing that, demanding the Vice President to not certify the legal election results and persuading House members to vote for you instead. Why persuade the voters when you can use the legal system to guarantee you the result you want instead?

(Not that any President in the United States has ever done that……)

But this is effectively what happened in California. Here, the Governor and the State Legislature feared an electoral outcome in a free and fair election. The solution? Take the election away from the voters to avoid the electoral outcome.

Unfortunately, the Court gave in, ignoring every single constitutional precedent on the topic. Instead, they have held that citizens cannot restrict the State Legislature’s power on taxation on their own but instead that the State Legislature must decide to do it on their own. Something that the State Legislature will not do on its own.⁴

Today’s decision is flatly wrong, contradicting 113 years of precedent with little explanation from the Court. There is as much adherence to judicial precedent in this decision as there was by Justice Samuel Alito in Dobbs v. Jackson Women's Health Organization. And it is as legally principled as any decision on a politically charged issue that is authored by federal District Court Judge Matthew Kacsmaryk.

I am deeply saddened by this ruling.⁵ I had a great deal of faith in the courts to be neutral arbiters of the law. I have repeatedly defended the California courts against naysayers, pointing out the many times they had ruled in unexpected ways. When it came to evaluating the TPGA, I expected them to adhere to the basic principle once so eloquently expressed by Justice Stanley Mosk:

I am bound to the law as I find it to be and not as I might fervently wish it to be.⁶

They have sadly shattered that belief with this disgraceful decision. The Justices don’t have to like the TPGA or consider it good public policy but they are bound to their longstanding duty to protect and defend the right of citizen’s initiatives.⁷

Removing the entire TPGA from the ballot is even more suspect. Even if they had later decided that one or two provisions constituted an impermissible revision, no prior decision had established it as such, which means under the Court’s precedent, it should have remained on the ballot.⁸ While the Court could have changed its mind, it had previously rejected the legal theories brought against the TPGA.⁹

Of course, as we all know from Roe v. Wade, court precedents are not set in stone. Courts can abandon them. However, even though the Justices may have been sincere in their desire to upend decades of precedent, they have created a terrible public perception.

They are ignoring precedent simply because Governor Newsom and the Democratic leaders of the State Legislature asked them to. Critics are not wrong to question the impartiality and true independence of the Court under these circumstances.

Some have defended this decision by acknowledging the Court ignored relevant precedent, suggesting that this is a strategic act of self-preservation by the Court. After having record surpluses just a few years ago, California now faces record budget deficits.¹⁰ It’s almost inevitable that government funding cuts will have to be made and funding for the judicial branch is in the chopping block.

That does not excuse what the Court did. If anything, it is a further indictment of a Court that is so clearly politicized that it is making political calculations rather than upholding legal precedents and impartially evaluating the law. The job of the Court is not to make legal decisions based upon their personal policy preferences or even out of budgetary concerns.¹¹

And legal precedent is very important. People are entitled to rely upon the precedents created by courts. When localities make election rules to ensure racial minorities can exercise their right to vote, they are entitled to rely upon the interpretations of the Voting Rights Act of 1965. When making choices about their personal lives, women have the right to rely upon the Court’s interpretations of their right to an abortion.

Likewise, when drafting a ballot measure, proponents are entitled to rely upon what courts have decided in the past in order to draft something that will be legally valid. This is exactly what the proponents of the TPGA did. No decision had ever invalidated any provision put forward in the TPGA.

I decried the United States Supreme Court for abandoning precedents to gut Section 5 of the Voting Rights Act of 1965. I decry Samuel Alito for abandoning fifty (50) years of legal precedent to end constitutional protections of a woman’s right to choose.

Today, I must decry the California Supreme Court for doing the exact same thing to the TPGA.

And that brings me to a larger point. The battle over whether to allow the TPGA to be voted upon can’t be viewed in isolation.

As Democrats, we rightfully decry a hyper-partisan activist federal judiciary throwing out precedents just to benefit a conservative agenda. And as we nervously await what the United States Supreme Court will decide as to Donald Trump’s immunity, we Democrats are right to worry about the United States Supreme Court throwing out 235 years of legal precedent simply to benefit Donald Trump

That is why I find it so shameful that Governor Newsom and the Democratic leaders of the State Legislature asked the California Supreme Court to do the same.

It is also shameful to crusade against democracy and voting rights.

Right now, there is a great deal of fear about the return of Donald Trump to the White House ending our democracy. “Democracy is on the ballot this November!” is a refrain one hears quite often. Lawmakers frequently conjure up these fears when discussing the 2024 Presidential election, including Governor Newsom and the Democratic legislative leaders who brought this lawsuit.

I share these fears.

But protecting and defending democracy is more than just about keeping Trump out of the White House. It also means accepting free and fair democratic election results that one dislikes. It means actually having elections and following the rule of law. This is not just true of electing candidates but also voting on ballot initiatives.

Taking away democracy because you fear an electoral outcome is wrong and deeply unAmerican. It makes no difference that my side is doing it instead of Trump. And the fact that Trump wants to do it does not justify Democrats doing the same thing. If anything, it is more evidence of why Democratic leaders should not have asked the Court to remove the TPGA from the ballot.

The voters of California should have had the opportunity to pass judgment on the TPGA. We have been deprived of that fundamental right for political reasons and not true legal ones.

This decision will erode public confidence in our state’s courts and our democratic system of government in California. While the decision removes the TPGA from the November 2024 ballot in the short-term, long term, it may set a precedent that restrict the rights of voters in the future.

This is truly a dark day for democracy and the rule of law.

1. https://www.courts.ca.gov/opinions/documents/S281977.PDF

2.

3.

4. See Legislature v. Eu, 54 Cal. 3d 492, 511-512 (Cal. 1991)(“It seems indisputable that Proposition 140 represents an attempt by the people to ‘alter or reform’ their own government. To construe article XVIII as vesting the Legislature with a power to veto such reform measures would be seriously inconsistent with the democratic principles expressed in article II.”).

5. The author of this article is an attorney licensed to practice in the State of California and the District of Columbia. This article and all of the works on this Substack page are statements of the opinions of the author, only, and do not constitute legal advice; they are not intended to be relied upon by any individual or entity in any transaction or other legal matter, past, pending, or future. A paid subscription to this Substack page supports the author’s scholarship and provides access to research that the author has compiled, but does not establish an attorney-client relationship. The author does not accept unsolicited requests for legal advice or representation, and this Substack page is not intended as legal advertising. The opinions expressed on this Substack page reflect the personal views of the author only.

6. In re Anderson, 69 Cal. 2d 613, 635 (Cal. 1968)(Mosk, J., concurring).

7. Brown v Superior Court, 63 Cal. 4th 335, 351 (Cal. 2016)(“We have consistently deemed it our duty to guard the people’s right to exercise the initiative power.”).

8. See Independent Energy Producers Association v. McPherson, 38 Cal. 4th 1020, 1024 (Cal. 2006)(“Because, unlike the Court of Appeal, at this point we cannot say that it is clear that article XII, section 5, of the California Constitution precludes the enactment of Proposition 80 as an initiative matter, we conclude that the validity of Proposition 80 need not and should not be determined prior to the November 8, 2005, election. Accordingly, the Secretary of State and other public officials are directed to proceed with all the required steps to place Proposition 80 in the ballot pamphlet and on the ballot of the special election to be held on November 8, 2005. After that election, we shall determine whether to retain jurisdiction in this matter and resolve the issues raised in the petition.”).

9.

10. https://lao.ca.gov/Publications/Report/4850

11. Brosnahan v. Brown, 32 Cal. 3d 236, 292-293 (Cal. 1982)(Bird, C.J., dissenting)(citations omitted)(“These predictions may well be accurate, but they do not justify the legal conclusion that Proposition 8 amounts to a constitutional revision, rather than an amendment, under the present state of the case law.

Moreover, each argument is premised on assumptions concerning matters that are outside the four corners of the initiative measure itself, i.e., that there will be insufficient resources to cope with the changes mandated therein. No hard facts have been produced. This court has been and should continue to be reluctant to declare an initiative measure to be a revision based solely on speculation as to its fiscal effect.

Initiative measures frequently have an impact on the public fisc, and hence on matters of constitutional concern. If that reason alone were sufficient to deem a measure to be a revision -- and forbidden by article XVIII -- then the power to improve our laws through the initiative process would be stringently curtailed.”).