Why the Attempt to Impermissibly Revise the California Constitution is Inherently Anti-Democratic and Dangerous to Individual Rights

Why I draw a red line against ACA 13

It would be very easy for me to simply shut the f*** up.

After all, there are many powerful organizations and public figures who have declared support for ACA 13. I refuse to, however, because defending the principles of democracy are more important than political or social expedience.¹

As I wrote recently, I believe ACA 13, which changes California’s Constitution to require a higher passage threshold for constitutional measures relating to taxes, is likely an impermissible revision of the California Constitution.²

ACA 13 is an affront to democracy.³ It changes the rules of the constitutional amendment procedure in California for the sole purpose of stopping another constitutional amendment that is already on the ballot for November even if a majority vote for it.⁴ It does so for the express purpose of having a far smaller group of voters outvote a far larger group of voters.

It also purports to “protect the majority vote” while doing the exact opposite. Under ACA 13, a one time majority will require passage of future constitutional amendments at a far higher majority than previously required.

Too many are wrapped up in the policy aim of ACA 13, which is to make it easier to pass tax increases for major government projects. This is arguably a good public policy. But independently of whether it is good or bad policy, it’s wrong to change the rules of democracy to ensure one viewpoint prevails.

If ACA 13 is constitutionally permissible, it opens the door to all sorts of chicanery that could be used to limit individual rights. Constitutional amendments could require that in order to be changed or repealed in the future, such efforts could only succeed if they meet a specific percentage of the vote far beyond the simple majority of the vote as has always been required.

Consider Proposition 14 in 1964, which passed in a landslide with over 2/3rds of the voters voting for it. It wrote a constitutional right into the California Constitution to allow Californians to racially discriminate in housing.⁵ Its sole purpose was to repeal fair housing legislation that prohibited racial discrimination in housing. But by 1974, voters had a change of heart and a majority of Californians voted to repeal it.

But what if Proposition 14 had required that in order to amend or repeal it, voters needed to vote by the same percentage to repeal it? Or some other percentage higher than a simple majority? A majority of voters might have voted to repeal Proposition 14 in 1974. And it might still have remained the law of California.

Some have described ACA 13 as “protecting the majority”. But this is inaccurate (I’d say Orwellian but I think that those in support honestly believe this is what they’re doing). What it enables is a majority vote in March 2024 to enact a constitutional provision that negates future majorities who have changed their minds.

Some might point out that other constitutional provisions set thresholds that require either more than a majority for local taxation increases or higher thresholds for the State Legislature to raise taxes.

They argue, therefore, that ACA 13 is permissible as it basically does the same thing, sets a threshold beyond a majority vote.

There is a critical difference.

The thresholds to impose certain special taxes are uniform constitutional limitations on governmental taxation powers that can always be repealed or amended by a subsequent constitutional amendment with a majority vote. They are not limitations that cannot ever be changed or undone. The same process that led to their implementation can be the same process used for their removal.

A majority vote of the electorate.⁶

One might argue that the California Constitution can be amended too easily by the people. But even constitutional amendments passed by the Legislature are subject to a majority vote of the voters for ratification, just like those that are enacted through the initiative process.

ACA 13 reveals an underlying anti-democratic line of thinking behind the movement to restrict ballot initiative rights. There are many who dislike the system of direct democracy and feel the need to restrict it because of their belief in the inherent naivety, ignorance, and stupidity of the voting public.

Some state legislators have expressed anger over the fact that the their decisions can be overturned by the people at the ballot box.⁷ They dislike that they can vote for something to be law, only to have their own voters reject what they personally believe is the right decision if it is placed on the ballot.

However, those legislators are thinking about it the wrong way. Being an elected official is a high honor and privilege. Serving as an elected public servants is a profession and a noble one at that. Many sacrifice a great deal to serve including their privacy, financial opportunity, time with family, and general freedom. This is especially true of many members of the California State Legislature.

However, Californians are not lowly subjects to be ruled by our leaders, who far better, far smarter, far more educated, and far more knowledgeable than we are, get to make unreviewable decisions. We are not governed by beneficent elected kings and queens who deign to make our lives better when not too busy giving themselves leadership awards for excellence in leading.

Instead, our elected officials are public servants who work for us. (It’s why we should pay them far more and restore their pensions). Aside from procedural rules, the constitutional powers of the voters and the State Legislature are generally co-equal.⁸

The individual power of our elected officials is also temporarily limited. Anyone elected to the State Legislature today will serve a maximum of 12 years. Even less if elected in a special election.⁹ Similarly, anyone elected to a statewide elected office will serve a maximum of 8 years in their position.¹⁰ No one serves forever.

If an elected official is upset about the results of a ballot initiative, that elected official needs to work on improving their arguments, not finding ways to over-rule the voters. The same is true of activists who want certain policy outcomes. If the public doesn’t agree with what we want, it’s on us to figure out why and to persuade them. Not find creative ways to negate what they’ve done because we simply know better.

Some argue that since big business groups frequently use the ballot initiative system, restricting ballot initiative rights is simply a way to protect the public from bad decisions that benefit big business. The reasoning follows that big business use the referendum and initiative to enact policies that benefit them or repeal policies designed to reign in their bad practices.

That’s actually quite backwards too because it assumes that the average voter is just a moron who cannot think for themselves. Because it’s not big business that overturned the law, it’s the voters who overturned the law. If you wish to restrict big business’s ability, what you are really doing is restricting the voters because you don’t trust the voters to make what you consider to be the right decision.

Now, it’s easy to anticipate the counterargument. Voters are uninformed and uneducated. They’re easily swayed by mob mentality. They’ll vote in ways that are harmful to themselves because they simply won’t know any better as they are deluged with big money.

Underlying this assumption though is a principle that has been embraced by Republican Presidential candidate and public clown, Vivek Ramaswammy. He has argued that a constitutional amendment is needed to raise the voting age from 18 to 25.¹¹ This is unlikely to ever happen but in many GOP controlled localities, efforts have been made to restrict college students and younger voters from voting.

The rationale for restricting the rights of younger voters is that college students are stupid and irrational. As a result, younger voters can’t be trusted to vote responsibly and will vote the wrong way. And this happens because younger voters, inexperienced, and uninformed, can be easily influenced by sinister outside forces who will manipulate these students into voting against their own interests.

Thus, making it harder for college students to vote is a way of protecting them from their own bad decisions.

This is the exact same rationale that is expressed by legislators and activists complaining about their legislation being overturned by big business. Or “abused”.

I reject this line of thinking. Voters can and do make mistakes. Both in the candidates who they elect and in ballot initiatives that they pass or reject. However, in making this observation, I am reminded of what Winston Churchill once said: “democracy is the worst form of government - except for all the others that have been tried.”

Voters are often capable of seeing through garbage and quite frequently defy expectations. Some progressives will argue for a restriction of ballot initiative rights because many ballot initiatives have been used to advance conservative public policy priorities. Moreover, they can be used to take away rights of individuals and to discriminate on the basis of immutable characteristics.

However, that’s actually quite rare. And more often, voters have shown their willingness to vote in ways that progressives favor. History tells us that when faced with making a difficult decision, voters have made good choices over bad choices that the mob would favor.

In 1986, the State Legislature refused to renew California’s mountain lion hunting ban. The voters over-ruled the State Legislature at the ballot box, enacting a permanent ban in 1990. When the State Legislature voted to bring back mountain lion hunting in 1996, despite the overwhelming numbers of state legislators in favor, they had no authority to directly over-rule the voters.

Instead, the repeal of the mountain lion hunting ban had to go directly to the voters for approval. In 1996, the voters overwhelmingly rejected the State Legislature, keeping the mountain lion hunting ban in place.

Three times, constitutional amendments were placed on the ballot to require that a minor obtain parental consent for an abortion. This is a very popular abortion restriction in the United States, supported even by many pro-choice voters. Nevertheless, these ballot initiatives failed all three times. The answer to protect the individual reproductive rights of young women was to persuade voters, not restrict voting rights.

These constitutional amendments came about because the State Legislature enacted a statute requiring parental consent for a minor seeking an abortion. The California Supreme Court held this law unconstitutional.¹² Even during the half century of Roe v. Wade, the State Legislature could enact a law requiring parental consent for abortions under the federal constitution.¹³

The California Constitution was the only roadblock to the law that the California State Legislature had voted for. Thus, if voters changed the California Constitution, then the State Legislature could pass a law requiring parental notification. Ultimately, the voters made the decision to side with the California Supreme Court over the State Legislature.¹⁴

In 1978, conservative religious activists placed a constitutional amendment on the ballot, Proposition 6, to prohibit the employment of gay and lesbian teachers in public schools. By all accounts, it should have easily passed. Instead of attempting to restrict voters, gay and lesbian activists worked tirelessly to have conversations with voters across the state to persuade them of the absolute evil of this proposed amendment.

One of the voters who gay and lesbian activists, led by David Mixner, had a conversation with was former governor and future President, Ronald Reagan. They persuaded him of how grotesque and destructive this homophobic constitutional amendment would be. Reagan decided to vote no and encouraged others to do the same. The polling flipped and Proposition 6 lost in a landslide.

In 1986, an initiative known as Proposition 64 qualified for the ballot that would have forced the effective quarantine of every single HIV/AIDS patient in California. Even though they were running against each other in a closely fought race that would be decided by a single percentage point, both incumbent Senator Alan Cranston (D) and his challenger, Congressman Ed Zschau (R) signed the official opposition.

Despite the stigma and the massive amount of misinformation about HIV/AIDS at the time, the voters were persuaded. Proposition 64 failed in a landslide.

Voters make mistakes. But voters are not morons to be looked down upon. Voters making mistakes are part of the democratic process.

Even when the results of referendums and ballot initiatives do not go the way that I want, I accept the results as the price we pay for living in a democracy.

I recently experienced this in a land use battle in the City of Beverly Hills. The City Council gave approval to build a nine story ultra luxury Cheval Blanc Hotel on a square block of the commercial land in the Golden Triangle on Santa Monica Boulevard between Rodeo Drive and Beverly Drive. This required a zoning change because the building was planned to be a 9 story building.

Although I didn’t love the architectural rendering (and I’m not sure that the development included any residential units, which all developments like this in the Golden Triangle should), this development would have been great.

The hotel would have brought in over 725 million dollars in revenue to the City of Beverly Hills. And it would have generated another 28 million in fees that would have gone directly to the city’s police and fire services. The hotel also would have anchored the world famous Golden Triangle shopping district and replaced existing commercial buildings that are currently sitting vacant.

The prime corner space at Rodeo Drive and Santa Monica Boulevard used to be home to the famous Carroll and Company men’s clothing store before it was replaced by the flagship Tommy Hilfiger before it in turn was replaced by the flagship Brooks Brothers store, which closed in 2018. Because it’s unlikely that a men’s department store will need a space of that size, the location is likely to continue to sit vacant.

In today’s global world, Beverly Hills is not immune from the forces that are driving down the use for commercial retail space. Nor is Beverly Hills immune from other global factors that can reduce traditional tourism because many of the high end boutiques the city has can be found elsewhere. Beverly Hills has to stay competitive in order to remain a top destination.

The Cheval Blanc Hotel would have helped maintain Beverly Hills’s competitive edge.

Some opposed this project, arguing that it would change the physical character of the Golden Triangle. They claimed the building was too tall (even though there are already other buildings of the same height within the Golden Triangle abutting the major arterial roadways) and would alter the small-town charm (even though Rodeo Drive long ago transformed from small-town cute to ritzy and flashy).

Some opponents were also nostalgic. They missed the old days of the Brooks Brothers, the Hilfiger Store, and the Carroll and Company. Allowing a luxury hotel to be built in that location would preclude those stores from even returning.

Finally, some opposed the Cheval Blanc Hotel for the typical complaints that those living in quiet low density residential neighborhoods might have against a large development (noise pollution, traffic, blocking a person’s view, blocking out the amount of sunshine in a yard, etc.). However, given its location in an already busy commercial district, the hotel would not have impacted any of those things.

The City Council, realizing only the upside and the limited if completely negligible downsides, voted 4-1 in favor of approving the Cheval Blanc Hotel.

However, the City Council’s vote was not the final word. Exercising their constitutional right to the referendum power, the City Council’s vote in favor of the hotel was placed on hold and instead their proposed change was instead put to the city’s voters for approval in a special election.¹⁵

By a mere eighty votes (literally), the voters of Beverly Hills voted down the Cheval Blanc Hotel.¹⁶ And now, instead of all these great benefits that the city would have received, the city gets nothing.

Do I personally consider this vote to be a mistake? Yes.

Now, does this make me want to restrict the right to referendum and initiative?

You might think so. Perhaps I should sign on to the tactics of Senator Scott Wiener (D-San Francisco) and his YIMBY followers and allies who push for state legislation to pre-empt local land use and referendum results. They do so to nullify local land use referendums when the election results are not to their liking.

If we simply lacked the referendum and initiative process, the election results in Beverly Hills that make no sense would have been averted.

Alternatively, what if we changed the rules to simply require a far higher percentage of the vote in order to stop the Cheval Blanc Hotel? Where the votes would be the same but the outcome would be different. That doesn’t cancel voting rights altogether, it merely restricts voting rights in order to achieve what I consider to be a more favorable outcome.

However, as tempting as it may sound in the moment, my answer is an absolute no. I cannot subscribe to that philosophy.

For one thing, democracy and voting rights are far more important to me than a hotel. Even a really cool hotel. But for another, I accept the results of free and fair elections even when they don’t go my way.

Moreover, I consider the consequence of being able to negate this precious constitutional right. What if the Beverly Hills City Council had rejected the Cheval Blanc Hotel? The remedy would be to put the issue on the ballot and persuade voters to approve it. Certainly, if that scenario had unfolded, I would oppose efforts to go around the electorate to nullify the vote.

Moreover, while the Cheval Blanc Hotel was not only appropriate, but highly desirable, what about other situations where proposed developments were truly inappropriate for the effort?

For example, what if a luxury boutique chain with a hotel brand wanted a zoning change to build a large hotel in a quiet, low density, completely residential area that had never had any commercial uses? In a quiet canyon area that was accessible only by a single narrow and windy a two lane roadway? What if that area was both a high fire zone and an urban area that was home to multiple natural wildlife?

Believe it or not, the Louis Vuitton brand has proposed this zoning change in Los Angeles, attempting to build a massive hotel in a wildlife area.¹⁷

If I take away the constitutional right to stop the Cheval Blanc Hotel, I would take away the right to stop the Louis Vuitton Hotel if the Los Angeles City Council approved it.

The rules that provide for our democracy are the rules that we have to live by. As Winston Churchill once said, democracy is the worst system of government we have aside from all others we have tried. I agree with that philosophy and stand by the results of free and fair elections even when I strongly dislike those results.

While some state legislators and activists may be distrustful of the choices that the public makes, they need to remember that we live in a democracy.

ACA 13 is an attempt to change to change the rules of our democracy in order to achieve a different electoral outcome without persuading a single voter to change their mind. That is anti-democratic and inherently dangerous.

For democracy’s sake, ACA 13 must be stopped.

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, 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.

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3. https://calmatters.org/commentary/2023/08/california-democrats-emulate-ohio-measure/

4. https://lasentinel.net/a-devious-plan-in-the-legislature-to-hurt-california-citizens.html