Xavier Becerra should stop undermining California’s democracy


A threat to California’s democracy is coming from an unlikely source – the unit within the California Department of Justice responsible for writing the ballot labels for initiative measures.

By law, the California Attorney General is charged with preparing a ballot label for each initiative measure – a short description of the measure that appears in every voter’s ballot.  He also prepares its title and summary for the voter guide.  Both the ballot label, and the title and summary, must be a “true and impartial statement of the purpose of the measure” and “shall neither be an argument, or likely to cause prejudice, for or against the proposed measure.”

But in recent years, the Attorney General’s ballot label and title & summary have not been impartial, but an argument designed to influence the voter.  This year’s ballot labels for the November election are particularly outrageous.  And many will be challenged in court this week.  But before I discuss how to reform the process, let’s look at how far the Department of Justice has strayed from its obligations.

Proposition 20 reclassifies specified felonies, such as rape of an unconscious person, felony domestic violence, and felony assault with a deadly weapon, as “violent felony offenses,” thereby restricting the offender’s entitlement to parole.  But the Attorney General’s ballot label states that the initiative “[r]estricts parole for non-violent offenders” – the opposite of what the measure does.

Proposition 15 requires commercial and industrial properties to be taxed based on their market value instead of their original purchase price, thereby eliminating Proposition 13’s property tax limits.  But the ballot label instead makes an argument designed to favor the measure: “Increases funding sources for public schools, community colleges, and local government services by changing tax assessment of commercial and industrial property.”

Proposition 22 establishes criteria for determining whether drivers for app-based ride share companies are employees or independent contractors.  But after seeking to coerce two such companies to treat their drivers as employees, the Attorney General changed his original ballot title from “changes employment classification rules” to “exempts app-based transportation … companies from providing employee benefits to certain drivers.”  (Italics added.)

Proposition 16 repeals the California constitutional prohibition against discriminating against, or granting preferential treatment, on the basis of race, sex, color, ethnicity, or national origin in public employment, contracting, or education.  The Attorney General’s ballot label should have stated that straightforward point.  Instead, it states that Proposition 16 “allows diversity as a factor in public employment, education, and contracting decisions.”  But the current prohibition does not prevent diversity, which can result from either racial preferences or race-neutral criteria that directly target disadvantage (such as socioeconomic status).

All of these political arguments, disguised as mere descriptions of the measure, insert an advocate’s argument directly into the voter’s ballot.

There are two reforms that must be taken to address the Attorney General’s departure from his legal obligation to draft a “true and impartial” statement that is “neither … argument, or likely to cause prejudice.”

First, the courts should no longer presume the accuracy of the Attorney General’s label, title, and summary.  This deference is a court-manufactured rule that should be limited to its original purpose, which recognized that the Attorney General could not be expected to mention all of the primary purposes of an initiative measure given the strict word limits placed on each ballot label and title and summary, as explained in a 1938 judicial opinion.  But no deference is due to an inaccurate ballot label.  In those cases, the courts should independently evaluate the impartiality of the description and assure that it is not an argument “likely to cause prejudice, for or against the proposed measure.”

Second, for every measure that qualifies for the ballot, the Attorney General (or if necessary, the Legislature) should reform the process of drafting the ballot label and title and summary by providing for the selection of two randomly selected retired judges, from different parties, to review, unanimously approve, or rewrite the Attorney General’s ballot materials before they are issued.

The impartiality and accuracy of these ballot materials is too important to be left to a politicized official.  And retired judges have the impartiality, legal training, and judgment to protect the initiative process.

Daniel M. Kolkey is a former judge and former counsel to Gov. Pete Wilson and serves on the board of the Pacific Research Institute.

Nothing contained in this blog is to be construed as necessarily reflecting the views of the Pacific Research Institute or as an attempt to thwart or aid the passage of any legislation.

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