The #Calexit ballot proposal is unserious in a number of ways

I had perhaps foolishly entertained the notion that the #Calexit "independent California" movement might be a serious attempt to declare independence from the United States, and I described the hurdles facing a prospective ballot measure. I've now read the actual proposal, and it's entirely unserious, in a number of different ways, worth noting now that the proposal has been approved for circulation. I would read the text of the proposal first, which is shockingly minimalist. It does two things: amends the California Constitution to eliminate the provisions that California is "inseparable" from the United States and that the Constitution is the "supreme law of the land"; and calls for a "plebiscite questions" in 2019 on independence, which, if favorable, would require the governor to apply to the United Nations.

There a lot--a lot--of problems with this proposal. To name a few:

First, the initiative repeals the constitutional provision that "The state of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the law." Never mind the dozens of other places in the California Constitution that refer to the United States of America or the United States Constitution--for instance, requiring state legislators to be citizens of the United States (Article IV, section 2) and the Governor (Article 5, section 2).

Second, the initiative makes no attempt to call for a constitutional convention, which would be necessary for this and other reasons--for instance, no need to elect United States presidential electors, senators, and representatives.

These problems alone indicate that #CalExit is not a serious independence proposal. Proponents claim this would be a "first step," but it is hardly any step at all--except, I suppose, an opportunity for earned media to treat the movement seriously despite the lack of legal impact of the movement.

Third, the initiative provides, via statute, for a "plebiscite question" given to the voters with the condition that at least 50% of registered voters participate for it to pass. California Constitution Article II, Section 10(a) provides no minimum participatory threshold for an initiative to take effect.

Fourth, the initiative provides, via statute, for a "plebiscite question" given to the voters with the condition that at least 55% vote "Yes." California Constitution Article II, Section 10(a) requires only a "majority" to pass initiative statutes.

Fifth, ballot initiatives are now to occur on the first Tuesday following the first Monday in even-numbered years, Cal. Election Code 9016. The initiative provides for elections in March of odd-numbered years and does not amend or refer to 9016 to account for this change. (Indeed, the California legislature recently amended this provision to ensure that major initiatives and referenda would occur in instances with higher voter turnout, March of odd-numbered years being among the lowest of turnout.)

Sixth, the "plebiscite questions" likely exceeds the power of the people of California to behave via initiative. California courts regularly conclude that the initiative power, even under "the most liberal interpretation," limit the power to the adoption and rejection of "statutes." Such conclusions come from AFL v. Eu and many California state appellate rulings. Declaring that the governor must behave in a certain way--that is, petitioning the United Nations for statehood--is not really a legislative enactment embraced by statute.

Seventh, and relatedly, the people of California may lack the power to direct the Governor to do something. For instance, in Widders v. Furchtenicht (2008), a California appellate court concluded that the initiative power was inappropriate to direct the city council to exercise its "informed judgment" in promulgating laws about housing and retail stores.

It's possible that some would consider the amendment to be a "revision" of the state's constitution, but I highly doubt that removing some largely precatory language--part of which is already redundant of the federal Constitution, anyway--amounts to a revision.

It's also worth noting these problems are not necessarily fatal to the measure appearing on the ballot. California courts in particular are reluctant to engage in pre-enforcement challenges on the merits of a proposed initiative, in the hopes that such questions might be mooted if the initiative fails to get enough signatures or fails at the ballot box.

Some of the problems outlined above might be cured with statutory construction that would give effect to the challenged provisions. Others might simply be notes about the limited nature of this question left for subsequent legal amendments. But they are, I think, serious reasons why the #Calexit proposal is decided unserious.

Could California vote for #Calexit? Probably not

Recently, "#Calexit" has been trending in California, a type of secessionist movement similar to Britain's exit ("Brexit") from the European Union. By popular vote, Britain approved the move, which has no legal effect according to the High Court but which continues to affect the political sphere.

Could Californians undertake a similar move and vote to "exit" the United States? The short answer is, probably not.

It's worth emphasizing I only examine whether California could vote to leave the United States--but there is some question on the merits I'll mention below. I defer to international law experts about the legality of such a move, but there is some history suggesting it could not, at least on its own, do so.

First, the #Calexit movement is not terribly sophisticated. It's worth noting this effort started months ago and has since been adopted as the new vessel for secessionists. It is not clear whether the proponents intend a ballot initiative, referendum, or an advisory question. (Following some of their comments on social media, proponents use terms like these interchangeably, if not randomly.) The form matters, which I'll broadly outline below.

A ballot initiative would not be permitted. Ballot initiatives in California include proposing new statutes or constitutional amendments. It is not clear that either could properly authorize secession from the United States. A constitutional convention might, I suppose; but that does not occur via initiative.

A referendum also would not be permitted, because it is, well, impossible. In California, a referendum is a decision by the people to ratify or reject a law enacted by the state legislature. Because there is no secessionist law that the state legislature has enacted, there is nothing for a referendum to do.

Instead, an advisory question would be the means to recommend #Calexit, and it would be that--a recommendation by the people, something like a public opinion poll but carries greater weight having come from the ballot box. Even that is limited.

For starters, a citizen-led advisory question is not permitted in California. In American Federation of Labor v. Eu (1984), the California Supreme Court held that the people had the initiative and referendum powers, but those powers extended only to those matters that enacted laws. Advisory questions were not authorized. It explained:

We acknowledge the arguments of the proponents that there may be value to permitting the people by direct vote not only to adopt statutes, but also to adopt resolutions, declare policy, and make known their views upon matters of statewide, national, or even international concern. Such initiatives, while not having the force of law, could nevertheless guide the lawmakers in future decisions. Indeed it may well be that the declaration of broad statements of policy is a more suitable use for the initiative than the enactment of detailed and technical statutes. Under the terms of the California Constitution, however, the initiative does not serve those hortatory objectives; it functions instead as a reserved legislative power, a method of enacting statutory law. The present initiative does not conform to that model.

But a precedent has now been set in California on a different type of advisory question. The California legislature passed what would ultimately become Proposition 59 on the 2016 general election ballot. Some litigation kept a similar proposal off the 2014 ballot, but after full briefing the California Supreme Court considered whether the legislature could refer an advisory question to the people via initiative--here, a call to California's elected officials to lead an effort to amend the United States Constitution to permit greater regulation of campaign finance.

In Howard Jarvis Taxpayers Ass'n v. Padilla, the California Supreme Court permitted such an advisory question to appear on the ballot. The Court accepted the argument that the legislature had "the inherent power to conduct an investigation in order to select the wisest policy course." It could then refer such questions to the people as a part of its investigatory power. But the Court was careful to limit this power: among other things, "the investigative power permits inquiry only into those subjects 'in reference to which [the Legislature] has power to act.'"

An advisory question, then, could not ask for California to secede if the legislature lacked the power to secede. Instead, it could only ask, along the lines of Proposition 59, to urge elected officials to pursue (amicable?) secession with the federal government. That is, unless (and this is on the merits, as mentioned above) the state legislature does have some right to do so, but that is a much more complicated question--even though, I think, the answer is probably no.

That said, the (dare I call them unsophisticated) claims from the current #Calexit movement suggest they will be gathering signatures for this ballot measure, which suggests they do not intend to have the legislature refer the advisory question to the people. (It's also deeply unlikely that the state legislature, if asked, would do so.) Proponents apparently intend to simply gather signatures. And whether they do so as a ballot initiative (which the people lack to enact as a matter of law) or an advisory question (which the people lack the authority to do under the initiative power), the effort would likely fail, and the people could not vote for #Calexit.

UPDATE: The "Yes! California" movement helpfully directed me to their proposal they filed last year. It is an initiative that requires a regular referendum to call for secession, and in the event of a referendum that approves secession, triggers obligations from the California government to pursue good-faith secession negotiations with the federal government. I am fairly confident that laws that purport to bind future legislatures (if not all government officials) to act in a particular way run afoul of basic principles of legislative autonomy. (See generally People's Advocate v. Superior Court (Cal. App. 1986).) Finally, such a transformative change in California is likely a "revision" to the state Constitution, not simply an "amendment," and as such would need to come from the legislature and not an initiative petition.

Tenth Circuit reverses course, finds no standing for legislators in Guarantee Clause challenge

It's been quiet in the ongoing saga of Kerr v. Hickenlooper, a Guarantee Clause challenge to Colorado's requirement that legislative tax increases be approved by popular vote. The United States Supreme Court remanded the case in light of Arizona State Legislature v. Arizona Independent Redistricting Commission, which concluded that the state legislature of Arizona did have standing to bring a challenge to the authority of an independent redistricting commission. As I noted a year ago, "This, I think, portends poorly for the legislators" bringing the claim here, because they brought their claim as individual legislators, not as the institution of the state legislature.

Sure enough, on remand, the Tenth Circuit concluded the same on Friday. "We now conclude that these individual legislators lack standing because they assert only an institutional injury." The opinion tracks the argument in Arizona State Legislature--and, in my view, the argument that should have been successful even before that case.

Quick thoughts from oral argument in today's Arizona redistricting case

Following up on my preview of today's oral argument, I read the oral argument transcript in Arizona State Legislature v. Arizona Independent Redistricting Commission (PDF). Here are a few quick thoughts.

At the outset, the Court had basically no interest in the standing issue or the statutory interpretation issue. Chief Justice Roberts and Justices Sotomayor and Ginsburg all sounded very confident that the Arizona legislature had standing in this case. (Indeed, the breadth of the standing analysis may be beneficial to the Colorado legislature in Hickenlooper v. Kerr, except, of course, the part that legislators are suing.) And both Chief Justice Roberts and Justice Alito were openly hostile to the applicability of the statute.

There was also some search for a limiting principle in a number of ways, and to seek out how to articulate the doctrine the Arizona legislature was advocating.

The first question of scope related to the role the legislature must play. Paul Clement, representing the legislature, would use the phrase "cut out completely," or other times articulated as "completely cut out." Justice Kennedy wondered if laws enacted by ballot initiative "about voter ID laws, . . . about absentee ballots" might "completely cut out" the legislature, to which Mr. Clement answered, "[P]robably." Then Mr. Clement and Justice Kagan (and others) walked through a series of hypotheticals about what the legislature's role must be in the process. Mr. Clement argued that "it's okay for a judicial body . . . to do redistricting on a one-off basis," but the problem is this mechanism "wrest[ed] the legislature from that process entirely on a permanent basis."

Justice Kennedy pressed the point as to whether the Arizona legislature had been completely divested of power. That is, he noted that the legislature could proposed an initiative or referendum. Mr. Clement pressed back that all the legislature could do is propose an alternative map via the initiative process--but that puts the legislature "on the same plain as the people," which is insufficient.

The most hostile, I think, was this, from Justice Kagan:

JUSTICE KAGAN: But you see, Mr. Clement, that suggests a very pure rule and and on occasion you said something like this, a legislature means a legislature, and that's what it means, and so a legislature has to do all those things. But you've made many, many exemptions to that over the course of the last 20 minutes.
You've said that as to anything that's not redistricting, it can be done by referendum or initiative without any legislative process whatsoever. You've said that all these kinds of different schemes about the interaction between a legislature and advisory commission are all going to be have to reviewed on a case-by-case basis to determine whether the legislature has primary control.
And when you get through with all that, the sort of purity of the originalist argument that a legislature means a legislature, well, we are miles away from that, aren't we?

Mr. Clement's ultimate response was that "this is about the most extreme case that you're going to have," and that the contours for other cases could be resolved on another day.

The second question of scope came out largely when the United States and appellees argued--could Congress authorize this exercise of power? And how did the clauses of the Elections Clause related to each other (which suggests, I think, that "Elections Clause" is not a great word to use?)

That clause reads:

The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators.

Mr. Clement emphasized that the legislature could not be completely divested of its power. Indeed, he essentially went so far as to say it could not be given away. So, what about the second clause? Or, as Justice Scalia asked:

JUSTICE SCALIA: Can the second clause be used to revise the first clause? That's what we're talking about here. The second clause can certainly--Congress can do something on its own, but can Congress use the second clause to revise what the first clause says?

That is, if the first clause means the legislature must have some role, or the primary role, or cannot delegate away all its power, or cannot be completely divested of its power, could Congress intervene under the second clause to do just that? And that makes the interpretation of the scope of the first clause all the more important.

It was later in the argument that Justice Breyer began to puzzle through the precedents and reflected his uncertainty about what to do. He seemed more concerned with a lack of precedent and uncertainty about how to move forward (and, with far more emphasis on early 20th century cases than on the Constitution).

Chief Justice Roberts mused that the redistricting commission's interpretation would render the words "by the legislature thereof" "entirely superfluous." Had it been left to each "State," absent any qualifier, then presumably non-legislature-based provisions would control.

Near the end of the case, Justice Kagan interpreted the Court's previous precedents as standing for the provision that "we need to show a lot of respect to the State's own decisions about how legislative power ought to be exercised. And that seems to me the overriding principle of the three cases." And, later, "Congress was also on board with this idea that the Court had, that when you look at that clause, the Elections Clause, that a lot of respect, a lot of deference, has to be given to the State's own definition."

There, then, is a sense of a soft political question doctrine in Justice Kagan's answer, that, perhaps as a near outgrowth of the Court's Guarantee Clause jurisprudence, the Court should defer to a State's governance. That's less, I think, the functionalist or consequentialist view advanced in the briefs, but a possible outcome from at least some members on the Court.

Time will tell what happens to this case. I anticipate seeing it in late June, with some possible unusual alliances and perhaps plenty of dicta for other cases.

Are competitive congressional elections always a good thing?

In today's Arizona redistricting case, the least persuasive arguments focus solely on the good of independent redistricting commissions and the evils of gerrymandering. That, of course, was the thrust of Arizona's ballot initiative that was enacted, and some briefs in this litigation are treating the Supreme Court as a kind of ratifying commission for this political decision.

But here's one question I like to float to students and others skeptical of gerrymandering. (Disclosure: this blog is named after a quotation from Elbridge Gerry.) Are competitive elections always a good thing?

There are at least two immediate costs that come with a competitive election: increased price tag on elections, and increased uncertainty in outcomes leading to recounts and litigation.

Arizona, case in point.

Even though Arizona has just nine members in the 435-member House of Representatives, it boasted two of the four most expensive races in outside spending (or, depending on your politics, "dark money") in 2014. Competitive elections often mean that the price of running an election increases--and that the amount of outside spending increases.

One House race was decided by just 167 votes, certified after a recount--because more competitive elections are closer, and those often trigger recounts and possible litigation.

It might be that, on the whole, voters, as a policy matter, as Arizonans did, prefer competitive elections. But it shouldn't be seen as a costless decision.

Everything you need to know about Hickenlooper v. Kerr, the Guarantee Clause case before the Supreme Court

Tomorrow, the Supreme Court will consider a petition for a writ of certiorari in Hickenlooper v. Kerr. Colorado legislators challenged an enacted ballot initiative that prohibited legislative tax increases from taking effect without a popular vote, arguing that it violated the Guarantee Clause. A federal district court, and the Tenth Circuit, agreed that the legislators had standing and that the Guarantee Clause claim was justiciable.

I started tracking this matter over a year ago. I provide the background in these links; below that, I'll discuss the briefs in the case that the Court will consider.

Several amici were filed in the case, available at SCOTUSBlog. Of note (and these are very brief summaries of the major arguments):

  • The Colorado Union of Taxpayers Foundation, the Mountain States Legal Foundation, and 22 Colorado state legislators filed a brief in support of the petitioner. They focused primarily on the fact that respondents' injury was abstract, because legislators never enacted a tax increase for the people to vote upon--instead, they simply alleged a dilution of legislative power. That cannot comport with existing standing doctrine. Only if the Colorado legislature enacted a tax increase, then saw the people reject it, would standing exist.
  • The National Federation of Independent Business, along with several policy institutes, filed a brief in support of the petitioner. They emphasized the breadth of the impact of a finding that such a case is justiciable, because the decision invites judicial invalidation of direct democracy in a number of states on matters ranging from marijuana legalization to charter schools. They also noted that in the partisan gerrymandering context (Vieth v. Jublier), the Supreme Court has essentially required an articulation of judicially-manageable standards before the case could proceed. Here, the district court insisted (in a rather bizarre fashion) on holding a trial to determine what the Guarantee Clause demands.
  • The Center for Constitutional Jurisprudence (with John Eastman) filed a brief in support of the petitioner. It focused upon the inability of the Tenth Circuit to distinguish existing precedent finding the Guarantee Clause usually non-justiciable. Regardless, the case presents a good vehicle for clarifying the language in cases like New York v. United States (1992) suggesting that the Guarantee Clause may be justiciable, and articulating that the standards for justiciability are not met in this case.
  • Texas joined by five other states filed a brief joined in support of the petitioner. They argue that the text of the Guarantee Clause protects not the state legislature, but the people, and the States. They also cite other provisions like line-item vetos and supermajority voting requirements that may be called into question if this case is found justiciable.
  • The Cato Institute (with Ilya Shapiro) and several other policy institutes filed a brief in support of the petitioner. It asked the Court to avoid addressing the issue of whether the Guarantee Clause is per se non-justiciable and instead emphasized that Colorado's Taxpayer Bill of Rights met the standard of a "Republican Form of Government," drawing heavily from source material at the founding.

The Supreme Court will consider the case tomorrow--and we'll eagerly await their decision as to whether to hear this case.

Ninth Circuit affirms Measure B condom requirement

More than nine months after oral argument, the Ninth Circuit has issued its decision in Vivid Entertainment v. Fielding, a challenge to Los Angeles's Measure B (PDF), which, among other things, requires performers in pornographic films to wear condoms.

I wondered earlier if Prop 8 litigation may have undermined governmental defense of certain ballot initiatives, given that Los Angeles County urged intervenors to participate in the litigation so that it would not have to defend the measure. After challengers to the measure largely lost, they appealed, arguing, among other things, that the defendant-intervenors could not serve as appellees, because defendant Los Angeles County refused to continue to defend the measure.

Here's what the Ninth Circuit held regarding jurisdiction:

Citing Perry, Plaintiffs argue that we lack jurisdiction over this appeal, because Intervenors lack Article III standing. We disagree with their reading of Perry and with their contention that Intervenors must have standing for this appeal to proceed.
The Supreme Court has held that a party must have Article III standing both to initiate an action and to seek review on appeal. Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997). But an intervenor who performs neither of those functions and no other function that invokes the power of the federal courts need not meet Article III standing requirements. Yniguez v. Arizona, 939 F.2d 727, 731 (9th Cir. 1991), vacated by Arizonans for Official English, 520 U.S. at 80, as recognized in League of United Latin Am. Citizens v. Wilson, 131 F.3d 1297, 1305 n.5 (9th Cir. 1997); see also Perry, 133 S. Ct. at 2661 (citing Art. III, § 2) (holding that “any person invoking the power of a federal court must demonstrate standing to do so” (emphasis added)). Nothing in Perry, which concerned the question whether an intervenor who sought to appeal had Article III standing, affects that conclusion. Plaintiffs have standing, and it is they alone who have invoked the federal courts’ jurisdiction. For that reason, we need not and do not decide whether Intervenors satisfy the requirements of Article III standing.

Jurisdiction, then, exists--but not obligation, apparently, exists for the government to defend a publicly-enacted ballot measure that the government officials may not agree with, or simply deem too sticky to provide a public defense. The Ninth Circuit went on to largely affirm the district court and, accordingly, upheld enforcement of much of Measure B.

A novel (and weak) attack on a Tennessee ballot initiative

The people of Tennessee approved Amendment 1 this election cycle, which removed the matter of abortion from the Tennessee Constitution, effectively leaving the only legal protection for abortion in the state in the jurisprudence of the United States Constitution. (It's called an "amendment" as something proposed by the Tennessee legislature but ratified by the people--slightly different than a typical initiative process, which is often voter-initiative by petition.)

Shortly after the Amendment was passed, a federal lawsuit challenged the Amendment. The claim is somewhat complex. A provision of the Tennessee Constitution provides: "And if the people shall approve and ratify such amendment or amendments by a majority of all the citizens of the state voting for governor, voting in their favor, such amendment or amendments shall become a part of this Constitution."

That's usually construed to mean that the denominator for a ballot initiative to pass is the total ballots cast for governor, not for the initiative; and that the "yes" votes on the initiative must be a majority as compared to the total votes cast for governor. That's because down-ballot races often yield fewer votes cast, and it's a way of ensuring that the initiative is enacted only with a slightly stronger majority.

The total "yes" votes cast, at the time I write this, is 728,751 votes. But while 1,385,178 votes were cast for the Amendment; just 1,352,608 votes were cast for the office of governor. That means the Amendment passed with nearly 54% of the vote.

But plaintiffs in this case are claiming that that isn't the right way to read the statute. Instead, it should be read to require that only those who voted for governor should have their votes on Amendment 1 counted. That, they argue, is what the literal reading of the Tennessee Constitution demands.

Basic math illustrates the silliness of this claim. There are, at this point, at least 32,570 fewer votes cast for governor. The current margin of victory for Amendment 1 is 104,894 votes. Even if every single person who abstained from voting for governor voted "yes" on Amendment 1, it would not come close to changing the result. (Indeed, the complaint only demands the right to an accurate count, claiming a type of dilution. There are nuanced situations in which the total might be different based on some more complicated contingencies, but that's extremely unlikely.)

But I want to set aside the sheer outcome-ineffectiveness of this claim. And, further, I want to set aside the post hoc nature of this claim--it might, for instance, have altered behavior of the voters if they had know ex ante how to vote, rather than invalidating the votes of thousands of voters on Amendment 1 after the fact.

Instead, I want to look at the claim itself--that, as a condition for voting on Amendment 1, one must vote for governor, too. That almost assuredly fails.

In an analogous context, California and Colorado had conditioned the right to vote for a replacement in a recall election on voting "yes" or "no" on the recall. (I've blogged about these issues here and here.) A California federal court and the Colorado Supreme Court struck them down.

The basic approach has been to follow Burdick v. Takushi. A court examines the nature of the voting right being asserted, the burden on that, and, in the case of a "severe" burden, the regulation must be subject to strict scrutiny.

Plaintiffs in this case claim that their votes are diluted by having non-gubernatorial voters' votes counted in the Amendment 1 tally. But that's really asserting a "right" under the text of the Tennessee Constitution, and not a burden per se on the fundamental right to vote. The real "right," I think, is actually the reverse: the "right" of voters to vote for Amendment 1 without being compelled to vote on the governor's race. That's how the recall cases have articulated the right--without a concern about the "dilution" to voters who voted on both under state law.

The best justification for the two-step recall system is articulated by the dissent in Colorado's case, explaining that in the old days, the recall consisted of a list of all the candidates, including the sitting politician, and the winner would simply win the recall (or, the sitting politician would win and never be recalled). States broke this into two steps--yes or no, and then a vote on the recall, which empowered voters who support the incumbent but would still want a "say" in the recall down ballot.

Regardless, that narrow possible justification for recalls does not, I think, tie in any way to the proposed novel interpretation of Tennessee's law. It strikes me (at least) as fairly onerous to compel voters to vote for one office in order to have the privilege of having their votes counted for initiatives--at least, not without some even plausible justification along the lines articulated in the recall dissent (which is, I think, certainly a matter for meaningful debate). There doesn't, I think, appear to be such a justification articulated anywhere in the complaint.

My initial view, then, is that this attack, somewhat novel and, based on this analysis, weak, would not last long in federal court.

A version of this discussion was originally emailed to the Election Law Listserv.