Why a Proposed California Constitutional Amendment to Limit Taxation Ballot Initiatives may be an Impermissible Constitutional Revision

ACA 13 is an Affront to Democracy and Should be Shelved

The California State Legislature is now considering Assembly Constitutional Amendment 13 (“ACA 13”),¹ which would change the California Constitution to require that any constitutional amendment that sets a percentage threshold for the imposition of taxes may only be enacted if it receives the percentage of the vote from voters that it ultimately proposes.²

A long time, well-respected Sacramento journalist known for calling out both parties, Dan Walters, called out ACA 13 for being an anti-democratic move of chicanery.³ Walters is right. This is anti-democratic chicanery. It is nothing that anyone who calls themselves a liberal or a progressive should ever embrace.

That’s because ACA 13 has been introduced in response to another constitutional amendment that has already qualified for the November 2024 ballot, known as the Taxpayer Protection and Government Accountability Act.⁴

Worried that the Taxpayer Protection and Government Accountability Act could pass in November, legislators want to place ACA 13 on the ballot for the far lower turnout March 2024 primary. If ACA 13 passes, it changes the California Constitution so that even if the Taxpayer Protection and Government Accountability Act passes overwhelmingly, it will likely not go into effect, as it otherwise would.

This is exactly what Republican leadership in Ohio attempted to do in order to pre-empt a potential constitutional amendment that would enshrine abortion rights into the Ohio Constitution. Change the system so that a majority voting in favor would be turned from a victory to a defeat.

But there is an additional constitutional problem with ACA 13.

Changing the percentage requirements for when a constitutional amendment can be enacted, as ACA 13 proposed to do, likely constitutes what is known as a constitutional revision. A constitutional revision cannot be implemented through the normal constitutional amendment process. Thus, ACA 13 is not only undemocratic, but an impermissible revision to the California Constitution.

Here’s why:

I. Amendment Process for the California Constitution

There are two ways to amend the California Constitution:

1. A constitutional amendment may be proposed by two-thirds of both the California State Assembly and the California State Legislature.⁵

2. A constitutional amendment may be proposed by an initiative petition signed by a number of registered voters equaling no less than eight percent of the total numbers of votes cast for Governor in the last gubernatorial election.⁶

Once the measure is qualified for the ballot, if it earns a majority of the votes cast on the question at the next election (50%+1), it is adopted and becomes law.⁷ Thus, the California Constitution has been amended frequently since statehood.⁸ Unlike the United States Constitution, which has only been amended 27 times in our nation’s 235 year history, the California Constitution has been amended 541 times as of 2023.⁹

While it is relatively easy to amend the California Constitution, a constitutional amendment may not be used to improperly revise the Constitution.¹⁰ Although it has only rarely occurred, constitutional amendments that attempt to revise the California Constitution have been held to be unconstitutional as improper revisions.¹¹

A revision of the California Constitution can only occur if (1) two thirds of both the California State Assembly and California State Senate propose a constitutional convention, (2) a majority of voters agree to a constitutional convention, and (3) a majority of voters ratify whatever is agreed upon at that constitutional convention.¹²

There are four key things to understand about the constitutional amendment process in California.

1. The right of citizens to place the ballot initiative on the ballot and vote on it is a fundamental constitutional voting right.

2. That fundamental right plays a key structural constitutional role in the of California governance.

3. There are certain narrow limitations built into the initiative system that are designed to protect and further the constitutional right to initiative.

4. A constitutional amendment to the California Constitution will be held unconstitutional if it does not comply with the limitations or fundamentally changes the constitutional structure of California governance.

ACA 13 would fundamentally alter the structure of California governance and remove inherent limitations in the ballot initiative process to do so. Thus, it is an unconstitutional revision.

II. ACA 13 Backstory

In 1996, Californians enacted a constitutional amendment that prohibited local governments from enacting what are known as “special taxes” unless 2/3rds of the applicable jurisdiction votes in favor.¹³ It is one of many constitutional taxation restrictions that California voters have passed over the past half century, often passed in response to court decisions that the public disagreed with.¹⁴

However, in 2017, the California Supreme Court, in California Cannabis Coalition v. City of Upland,¹⁵ the Court held that this provision was inapplicable when a ballot measure to raise special taxes was placed on the ballot by individual citizens.¹⁶ In an opinion joined by all four Republican appointed Justices, the Court held that a 2/3rds vote was only required when the government itself put the special tax on the ballot.¹⁷

Justice Leondra Kruger, joined by Justice Goodwin Liu, dissented.¹⁸ She found this constitutional interpretation to be implausible.¹⁹ It ignored the intent of the drafters of an initial ballot initiative.²⁰ And it also twisted the language of the provision in a literal way to reach an untenable result.²¹

If those names sound slightly familiar to you, Justice Kruger was one of the top finalists to be appointed to the United States Supreme Court by President Joe Biden before he selected Justice Ketanji Brown Jackson instead.²² Justice Liu was initially nominated by President Barack Obama to a federal appeals court but was not confirmed because Mitch McConnell filibustered him for being too intelligent.²³

In California Cannabis Coalition, the California Supreme Court, of course, rendered its decision with the full understanding that if a constitutional amendment qualified for the ballot, their ruling could be overturned by a simple majority of the voters.²⁴

And so, having received enough signatures to appear on the ballot, the Taxpayer Protection and Government Accountability Act will ask the voters of California what they are frequently asked on a multitude of different constitutional issues:

Do they agree with Justice Kruger and Justice Liu or do they agree with the Republican appointed Justices?

If a voter agrees with Justice Kruger and Justice Liu, they vote yes on the Taxpayer Protection and Government Accountability Act.

If a voter agrees with the Republican appointed Justices, they vote no on the Taxpayer Protection and Government Accountability Act.

Under the existing rules, whichever position receives a majority of the vote wins. That has been the case in every single constitutional vote on the ballot dating back to 1849.

ACA 13 is an attempt to undercut this. It would provide that it cannot pass unless it receives 67% of the vote. Effectively, this means that if the election results are the same, the outcome is different.

Putting ACA 13 on the March 2024 ballot is also part of the strategy. Consider the following. In the March 2020 Presidential Primary, a combined total of 8,359,331 ballots were cast for Presidential candidates.²⁵ In the November 2020 Presidential election, a combined total of 17,500,881 votes were cast for Presidential candidates.²⁶

If a similar turnout repeated in 2024, the following situation would occur. In November 2024, a majority could vote for the Taxpayer Protection and Government Accountability Act. In March 2024, voters could pass ACA 13. Even though mathematically, this would mean that more votes are cast for the Taxpayer Protection and Government Accountability Act, it would not be enacted.

Based upon past turnout models, if 100% of voters voted for ACA 13 in March 2024 (highly improbable), the number of votes cast for ACA 13 would still be fewer than the number of votes cast in favor of the Taxpayer Protection and Government Accountability Act, even if it only garners a bare majority of voters in November.

III. The Fundamental Constitutional Right of Voters to the Initiative, Recall, and Referendum

Some believe that the California Constitution is far too easy to change.²⁷ However, the California Constitution provides that “All political power is inherent in the people. Government is instituted for their protection, security, and benefit, and they have the right to alter or reform it when the public good may require.”²⁸ This provision “reflects a basic precept of our governmental system: that the people have the constitutional right to alter or reform their government.”²⁹

These constitutional provisions were “[d]rafted in light of the theory that all power of government ultimately resides in the people, the amendment speaks of the initiative and referendum, not as a right granted to the people, but as a power reserved by them.”³⁰ Thus, the right of Californians to submit ballot measures to the public “is a fundamental legislative power that the people may exercise through the initiative process.”³¹

It might be easy to dismiss and denigrate these constitutional rights as somehow less than other voting rights. However, the rights of initiative, referendum, and recall are found in Article II of the California Constitution.

That same Article II of the California Constitution also contains the explicit guarantees of (1) the fundamental right to vote, (2) the fundamental right to have that ballot counted as it is intended it to be cast, (3) the fundamental right to a secret ballot, and (4) the right to have one’s voting rights restored once one who has committed a serious crime has paid their debt to society.³²

These are the rights that are often targeted in red states and used to disenfranchise voters that we Democrats angrily denounce. And rightfully so.

These are laws intended to restrict the votes of validly registered voters or Americans who have the right to vote and they are enacted for the sole purpose of changing an outcome in an election. That’s anti-democratic.

ACA 13 operates the same way. It changes the rules for the sole purpose of changing an electoral result from a victory to a defeat. That’s equally undemocratic.

Some may object because they don’t like ballot initiatives. However, if one can dismiss initiative, referendum, and recall as constitutional rights that aren’t “real” and can be ignored, one could just as easily make that same argument to restrict other constitutional rights that we know are fundamental democratic voting rights.

IV. The Constitutional Role of the Majority Vote for Initiatives is Fundamental to the Structure of California’s Constitutional Governance

Supporters of ACA 13 might argue that there is precedent for restricting fundamental constitutional rights. For example, in 2008, the California Supreme Court held that gays and lesbians had a fundamental right to marry.³³ The California Supreme Court then upheld constitutional amendment Proposition 8 that removed this right as a proper use of the initiative system.³⁴

Relying on the precedent of Proposition 8, proponents of ACA 13 would argue that it is a valid constitutional amendment.

But there is a critical distinction to be made. The right to the ballot initiative is not only a fundamental constitutional right instead plays a fundamental role in the structure of California governance.

The ballot initiative system gives the people, who are the sovereign, the ultimate right of control, and playing a key role in limiting the power of the legislative, executive, and even judicial branches of government.³⁵ The current constitutional amendment system provides the people a direct check on the power of all branches of government.³⁶

The California Constitution provides for a separation of powers between the branches of government.³⁷ However, the people of California have the ultimate power to restrain all their branches of government through a majority vote at the ballot box. In this way, it provides the ultimate check on power.

1. Limitation on the Legislature. The ballot initiative system serves as a check on the power of the State Legislature.³⁸ Statutory initiatives cannot be changed by the Legislature unless specified.³⁹ Constitutional amendments can over-ride the laws that the Legislature passes.⁴⁰

2. Limitation on the Judiciary. While the courts have the power to interpret provisions of the Constitution, the voters have the authority to change those provisions if they disagree.⁴¹ California voters have overturned several decisions of the California Supreme Court, including those that have protected individual rights.⁴²
   
   It is still the job of the courts to say what the law is and interpret the Constitution.⁴³ However, the voters fully retain the right to change their Constitution if they dislike what the Court has done.⁴⁴

3. Limitation on the Governor and Other Executive Branches. Though constitutional amendment, the voters have imposed term-limits on the Governor and other statewide elected executive positions and created an independent commission to set the Governor’s annual salary.⁴⁵ Through constitutional amendment, the voters have also made certain cabinet positions into independent elected officers who answer to the public rather than the Governor.⁴⁶

4. Limitations on the University of California. Under the California Constitution, the University of California is its own independent branch of government – as though it was the executive, judicial or legislative branch - and is governed exclusively by the UC Regents.⁴⁷ The State Legislature and Governor have very limited control over the University of California.⁴⁸
   

   The rules that govern the UC – its administration, admissions policies, employment practices, campus design, campus housing policies, grading policies, and all other operations are decisions made by the mostly unelected UC Regents.⁴⁹ However, the University of California is not beyond the reach of democratic control as the voters may change policies through a majority vote by a constitutional amendment.⁵⁰

5. Limitations on the Independent Power of Charter Cities. The California Constitution gives powers to charter cities to govern their own municipal concerns and make laws that over-ride contradictory state laws.⁵¹ California has two different types of cities: general law cities and charter law cities.⁵²
   
   Counties and general law cities have to enact laws that are not in conflict with general laws of the state.⁵³ Unlike counties and general law cities, charter cities are not bound by state laws if the area of law is held to govern municipal affairs rather than govern in an area of statewide concern.⁵⁴

   
   However, if Californians do not agree that an area of governance should be beyond state control, they may change it through a majority vote.

VI. The Limitations on the Constitutional Amendment Process

The ballot initiative system that enables constitutional amendments has some built-in limitations. These limitations are not designed to serve as restrictions on voting rights, but instead are designed to protect the right of initiative itself and the integrity of the democratic process.

By analogy, there are numerous safeguards built into conducting elections that do not limit the right to vote, but protect the right to vote. There’s a certain time period one has on Election Day when one can vote.⁵⁵ One must mail their ballot by 8 pm on Election Day or else it will not be counted.⁵⁶ One can only vote once.⁵⁷ And while it’s a broad requirement, we do require some type of identification for first time voters.⁵⁸

Here is a quick summary of the constitution ballot initiative limitations.

1. Single Subject Rule. As in most state constitutions, there is a single-subject rule.⁵⁹ This means that the provisions of a constitutional amendment must be reasonably germane or have some functional relationship to each other.⁶⁰ Constitutional amendments that violate the single subject rule will be struck down as unconstitutional or removed from the ballot.⁶¹

2. Conflicting Ballot Measure Rule. If two constitutional amendments passed in the same election conflict with one another, the one with the highest number of votes is enacted while the other one is not.⁶² This prevents the creation of bizarre laws grafted together that voters never truly intended.⁶³

3. Prohibition Against Referring to Specific Individuals. A constitutional amendment cannot name individuals to hold certain offices or allow specific private corporations to engage in certain governmental duties.⁶⁴

4. Prohibition on Constitutional Amendments that Exempt Certain Areas of the State. A constitutional amendment must include the whole state and cannot exempt any parts of the state based upon how that part of the state votes or premise whether a constitutional amendment passes “based upon the casting of a specified percentage of votes in favor the measure.”⁶⁵

5. Prohibition on Passage of a Constitutional Amendment With Specified Percentages. A constitutional amendment cannot contain provisions that only become effective depending upon the casting of a specified percentage of votes.⁶⁶

6. Inherent Judicial Restrictions Imposed Upon the Constitutional Amendment Process. There are also inherent limitations to the constitutional amendment process that have been added by the courts to protect the process.

   1. If two constitutional amendments conflict with one another, the one passed later in time will be controlling.⁶⁷

   2. Repeal of constitutional amendment by implication is also disfavored as constitutional amendments need to directly provide for what they will do.⁶⁸

   3. When a constitutional amendment is passed that might restrict the taxation power of the voters, that constitutional amendment must expressly say so directly.⁶⁹

   4. Constitutional amendments cannot be used to order members of Congress elected from California to propose constitutional amendments or specific federal legislation.⁷⁰

   5. A constitutional amendment may not impermissibly revise the Constitution.⁷¹

These limitations protect the right of the voters to enact ballot initiatives, ensuring the intent of the voters can be properly ascertained and carried out.⁷²

VII. ACA 13 Would Constitute an Impermissible Revision of the California Constitution

A constitutional revision constitutes “systematic, comprehensive constitutional renovation and reform” to the California Constitution.⁷³ In evaluating whether a constitutional amendment is in fact a revision, a court analyzes both the quantitative and qualitative effects of that amendment on the basic structure of governance.⁷⁴ If either are deeply impacted, the constitutional amendment may constitute a revision.⁷⁵

A revision “must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution.”⁷⁶ Thus, “in order to constitute a qualitative revision, a constitutional measure must make a far-reaching change in the fundamental governmental structure or the foundational power of its branches as set forth in the Constitution.”⁷⁷

The key case is Raven v. Deukmejian, a surprising outcome given the makeup of the California Supreme Court, and its author, then Chief Justice Malcolm Lucas.⁷⁸

In Raven, California voters had passed a far reaching constitutional amendment to reign in criminal offenders, Proposition 115.⁷⁹ Proposition 115’s purpose was to restrict constitutional rights of criminal defendants; it toughened criminal sentences and removed rights from criminal defendants.⁸⁰ The California Supreme Court upheld nearly all of Proposition 115.⁸¹ However, the Court struck down one part.⁸²

Proposition 115 contained two sentences that it added to the Constitution:

In criminal cases the rights of a defendant to equal protection of the laws, to due process of law, to the assistance of counsel, to be personally present with counsel, to a speedy and public trial, to compel the attendance of witnesses, to confront the witnesses against him or her, to be free from unreasonable searches and seizures, to privacy, to not be compelled to be a witness against himself or herself, to not be placed twice in jeopardy for the same offense, and to not suffer the imposition of cruel or unusual punishment, shall be construed by the courts of this State in a manner consistent with the Constitution of the United States. This Constitution shall not be construed by the courts to afford greater rights to criminal defendants than those afforded by the Constitution of the United States, nor shall it be construed to afford greater rights to minors in juvenile proceedings on criminal causes than those afforded by the Constitution of the United States.⁸³

Now, this addition clearly did not constitute a revision in the quantitative sense as it only added two sentences to a single section of the California Constitution.⁸⁴

However, the Court held that it constituted a qualitative change as the amendment took away all the power to interpret the state constitution’s criminal procedure provisions from the California courts and placed it in the hands of the United States Supreme Court.⁸⁵

It had a far-reaching effect because the California Constitution is a document of independent force.⁸⁶ At the time of its original enactment in 1849, the California Constitution independently protected individual rights of citizens that the United States Constitution did not.⁸⁷ California courts had always been responsible for interpreting these constitutional rights, serving as a court of last resort.⁸⁸

Proposition 115 fundamentally altered this set-up because it took away this power and placed it in the hands of the United States Supreme Court.⁸⁹ Rather than simply rewrite a constitutional provision, it ended the concept of judicial independence.⁹⁰ In that respect, it fundamentally changed the constitutional structure of governance.⁹¹ Accordingly, the Court held Proposition 115 was an improper revision.⁹²

ACA 13 operates in the same way as Proposition 115 did.

First, ACA 13 would change the fundamental governmental structure and plan of California, which always provides for a majority vote to make constitutional changes.

Since 1849, with the inception of the original California Constitution at statehood, all constitutional amendments have required that a majority of voters vote in favor of a constitutional amendment.⁹³ This was reconfirmed after the 1879 constitutional convention.⁹⁴ The rule of a majority vote was then implemented in 1911 with the adoption of the direct ballot initiative provisions.⁹⁵

Today, it is a majority vote that is required for:

• Enacting a Constitutional Amendment

• Enacting a Legislative Statute

• Repealing a statute by referendum.⁹⁶

• Agreeing to Hold a Constitutional Convention for a Revision

• Ratifying the Results of a Constitutional Amendment for a Revision

• The Retention of any Justice to the California Supreme Court or California Court of Appeals⁹⁷

• The Recall of any Elected State Elected Official including any California Supreme Court or California Court of Appeals Justice⁹⁸

For the first time, under ACA 13, more than a majority vote would be required for the passage of a constitutional amendment. Now, it is true that constitutional amendments have limited taxation power or set certain higher thresholds to pass certain tax initiatives. However, all of these restrictions could be removed by a subsequent constitutional amendment, enacted by a majority vote.⁹⁹

Second, ACA 13 would repeal by implication, multiple current limitations on constitutional amendments including:

1. The restriction on constitutional amendments only passing if they achieve a certain percentage of the vote. By its terms, ACA 13 requires that future constitutional amendments in the subject matter of taxation can now only pass if they receive a certain percentage of the vote. Therefore, the Taxpayer Protection and Government Accountability Act can only pass if it receives a specified percentage of the vote.

2. The restriction that a later passed constitutional amendment that conflicts with a previous one over-rules the previous one. Should ACA 13 pass in March 2024 and the Taxpayer Protection and Government Accountability Act pass in November 2024, the earlier in time passed ACA 13 would over-rule the latter passed Taxpayer Protection and Government Accountability Act.

3. The restriction that among two conflicting constitutional amendments passed at the same election that the one that receives more votes is the one that is enacted. The purpose of placing ACA 13 on the March 2024 ballot is to ensure that it can pass in a low turnout election. Thus, even if the Taxpayer Protection and Government Accountability Act passes in November 2024 with far more votes, ACA 13 would control despite having received far fewer votes.

Third, ACA 13 also changes the longstanding constitutional requirement of the uniform operation of laws.¹⁰⁰ ACA 13 repeals it by implication at least in terms of taxation. Technically all 58 counties and every local city (88 in Los Angeles County alone) could implement a different threshold for the passage of special taxes.

Finally, ACA 13 further fundamentally changes the structure of government by changing the relationship that voters currently have with the branches of government.

For the first time, it would make it so that the voters cannot overrule the Legislature on taxation issues with a majority vote, something that is the plenary power of the people.¹⁰¹ For the first time, the voters could no longer overrule the California courts’ interpretation of the California Constitution with a simple majority vote.

As mentioned, the Taxpayer Protection and Government Accountability Act was placed on the ballot in response to a California Supreme Court case from 2017 interpreting provisions of the California Constitution governing local taxation. ACA 13 prevents the voters from enacting a constitutional amendment to overturn this ruling by majority vote, fundamentally changing the governance structure.

One might argue that it is not a revision because it only changes the amendment process in respect to one specific area, taxation. But that is exactly how Proposition 115 operated.

It did not require the California Supreme Court to follow the United States Supreme Court in every instance. It just required the California Supreme Court to follow the United States Supreme Court on issues of constitutional criminal procedure. However, it nevertheless was an improper revision.

VIII. Conclusion

ACA 13 would impermissibly revise the California Constitution. It tramples on constitutional rights and fundamentally alters the structure of governance to change how an amendment can be passed.

But a final word.

ACA 13 is undemocratic. And frankly, as a fairly progressive Democrat, I’m more than a little ashamed that it would be Democrats proposing such a restriction on fundamental voting rights. We are the party that is supposed to be for protecting and expanding voting rights, not taking them away to change an electoral outcome.

Recently, in Ohio, the Republican leadership feared that voters might amend the Ohio Constitution through ballot initiative to enshrine a constitutional right to choose. They scheduled a special election, in the hopes of getting low turnout, to amend the Ohio Constitution to require a higher threshold than just a majority vote for any constitutional amendment to protect abortion rights.

That effort thankfully failed. However, it is clear from the results that significant numbers of Republican, conservative, and pro-life Ohio voters voted against changing their constitution out of commitment to democratic principles. They saw the attempt at anti-democratic chicanery and responded accordingly by voting against the proposed changes.

It is understandable that one would oppose and vote against the Taxpayer Protection and Government Accountability Act (I had been planning to vote no). Because while I agree with Justice Leondra Kruger and Justice Goodwin Liu in their constitutional interpretation of the relevant constitutional provision, I favor the public policy outcome provided by the Republican Justices of the Court.

However, that is an argument that needs to properly go before the voters of California. Whatever the outcome, we accept it as a matter of democracy. ACA 13 is designed to change that so the outcome is pre-ordained regardless of how voters vote.

If you decide that you need to restrict voting rights because you hope to change the electoral outcome that you don’t want, ensuring you will win when you would otherwise lose, you really need to reconsider your commitment to democratic values.

Because that’s not progressive, that’s just MAGA.

1. 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.