Undemocratic Democracy: End California's Initiative Process

This article contains chemicals known to the State of California to cause cancer and birth defects or other reproductive harm

Embedded deep in California’s 76,930-word constitution, Article XIV Section 5 specifies that prisons may use “for profit organizations” to conduct inmate labor programs. This provision, buried in a paragraph of legalese, lays at the root of a hundred-million-dollar for profit prison labor industry—an outcome I doubt was foreseen by the vast majority of voters who approved Prop 139, the 1990 voter-initiated ballot measure that created Article XIV.

Such is the norm in California’s trigger-happy voter initiative process to amend our constitution: Voters must regularly consider dense legal language on issues they know little about. Though the initiative process intends to empower voters at large to have a greater say in their governance, it consistently empowers small special interest groups to embed their agendas into the state’s governing documents. Many prior initiatives have had even greater consequences than the legalization of for profit prison labor, contributing to our state’s shortages of housing, quality education, legal justice, and more.

This is the first post of several I plan to write arguing direct democracy poses a barrier to good governance. Making our government work will require redesigning core institutions of our democratic system.

Writing a constitution: The legislative initiative vs the voter initiative by petition

As a result of its voter initiative system, California has one of the longest constitutions of any government of the world. Through ballot measures placed by voter initiatives, our constitution deals with such fundamental issues of statewide importance as the allocation of vehicle license fee revenues (Article XIX D Section 1), the creation of a state-mandated stem cell research institute (Article XXXV Section 1), and the type of nets used to catch rockfish (Article X B Section 4).

Some of these are probably good things! I personally like stem cell research and environmental protections for rockfish!! Others, like restrictions on fee revenue, less so. The uniting theme: The California legislature could address all these issues in normal laws. Instead, they are baked into our constitution. Why are California’s voters opining on such obscure technical questions?

California’s constitution provides two ways to amend itself:

1. Legislative initiative: Two thirds majorities in both houses of the state legislature can vote to put an amendment on the ballot, which voters must then approve by a simple majority in the next election

2. Voter initiative by petition: Any small group of California residents may put forward an amendment to California’s constitutions by “initiative” of the voters. They must file a petition that has been signed by “8 percent … of the votes for all candidates for Governor at the last gubernatorial election,” which must then be approved by a simple majority of voters in the next election.¹

Both methods involve voter approval. But the legislative approach, requiring the legislature to first approve any proposed amendments by two thirds majorities in both houses, puts guardrails on what voters are asked to consider. These guardrails limit the sorts of issues voters must become informed experts on, leaving the job of writing and passing most legislation to the elected officials we theoretically put in place to legislate professionally.

The voter initiative takes the guardrails off.

Origins of the voter initiative: Good intent backfiring

California first implemented the right to pursue voter initiatives in 1911, largely influenced by a newly ascendant Progressive movement.² The Progressives of the time sought to extend voting to new groups and give voters power over large railroad and oil companies, who they had recently beat in elections to control the state legislature and governorship.

However, the progressives then passed their first major constitutional amendment—Prop 4, giving women the right to vote—through the traditional process: The duly elected legislators voted by ⅔ majorities to put a ballot before the voters, which voters then approved. The new initiative system wasn’t actually necessary to advance core Progressive priorities. Winning legislative elections was. Representative democracy for the win!

In contrast, the voter initiative processes gave more power than ever to entrenched special interests.

Just qualifying an initiative for the ballot is expensive. Gathering signatures for 8% of all voters from the last gubernatorial election amounts to millions of signatures. In the last two election cycles, just getting enough signatures to qualify initiatives for the ballot cost between $6.48 million and $18.8 million dollars, according to Ballotpedia. Professional petition-gathering companies receive huge contracts to pay door knockers to do the actual foot work of reaching voters. The average price to bring an initiative before voters over the last 20 years is more than $4 million.

After an initiative qualifies for the ballot, proponents spend even more. KPBS reports that the AIDS Healthcare Foundation spent $49.2 million alone on their 2024 rent control campaign, their third failed attempt.³ The healthcare industry spent over $50 million passing Prop 35, a measure requiring the state to spend tax revenue from health care plans on Medi-Cal.

It doesn’t matter how many attempts an initiative takes; if it passes once, it becomes the near-immutable law of California.

The initiative process in action

Consider restrictions on property taxes: Anti-tax and business groups tried to cap California’s property taxes more than a dozen times in the decade following 1966, with multiple attempts in 1966, 1968, 1970, 1971, 1974, and 1976–often more than one initiative attempt per year. These were preceded by initiatives in 1914 and 1950, which qualified for the ballot but failed.

Yet in 1978, the anti-tax lobby rode a wave of voter dissatisfaction with inflation to pass Prop 13, finally achieving a cap on property taxes that has hobbled California’s state and local governments for almost 50 years. As KQED reports, before Prop 13, California spent more than the national average on schools per student. Ever since Prop 13’s passage, it has spent substantially less.

To try and make up the difference and adequately fund services, California taxes new property owners substantially more than older property owners. The Lincoln Institute of Land Policy, a think tank, found that new homeowners in California pay somewhere between 28% and 51% more in property taxes than longer time owners, depending on where they live. Prop 13 forces new homeowners to subsidize the lifestyles of older ones. And it creates strong incentives to use land inefficiently by making buying and holding property with modest revenue more valuable than building something new.

Other California voter initiatives with unintended consequences (or sometimes very intended consequences) include:

• Proposition 14 (1964), ALLOWING racial discrimination in housing policy, passed to override federal fair housing law (declared unconstitutional by the Supreme Court two years later)

• Prop 65, which was supposed to warn consumers of toxic chemicals but has resulted in so many lawsuits and warning stickers (like my article subheading or the image below) that it’s functionally useless

• Prop 184, implementing three strikes laws with de facto life imprisonment for a range of crimes, in 1994

• Prop 8, banning gay marriage in 2008 (overturned by the Supreme Court six years later)

Just doing my due diligence to avoid getting sued.

Some good has come out of the voter initiative process. Prop 215 legalized medical marijuana in 1996, followed by Prop 64 legalizing all marijuana in 2016—both put on the ballot by voter initiative.

So California’s petition system has effectively made accessing drugs easier, but only after it put tens, maybe hundreds of thousands of people in prison for using or selling them through the “three strikes” system. The limited good of the voter initiative needs to be weighed against the bad and the ugly.

Restoring effective democracy

“Democracy” is not a single thing. Rather, Democracy is a set of customizable government design choices, some more representative of popular will and some less so. California’s direct democratic experiment over the last 115-odd years has trended toward more power for minority interests and less effective governance.

Think of democracy like Goldilocks—it can be too cold or too hot. For democracy to work well, decisions need to be made at the right level of government by the right legislative body. Most problems can be solved legislatively; a select few require constitutional reform. California’s original hybrid process for constitutional amendments, starting with legislative approval before going to the voters, strikes a balance I think the California bears would approve of (Goldilocks puns anyone?).

Representative democracy will never be perfect. Our elected officials, whose campaigns for office often costs hundreds of thousands or millions of dollars, also consider the demands of special interests. Elected officials regularly make mistakes or misrepresent their voters.

Fortunately, we have a mechanism built into our system to correct our elected officials when they go astray: Regular elections. Unlike the rigid initiative process, where an initiative passed once becomes incredibly hard to change, our state-level elected officials must go before the voters every two or four years. The process is messy; change still takes time. Still, electeds must be responsive to at least some constituencies. The history of our state shows our elected representatives can accomplish hard things when they aren’t hamstrung by minoritarian initiatives.

What to do with the mess that has already been created of California’s constitution by past voter initiatives? I’m still figuring out the answer—it’s a discussion for another article.

For now, Californians themselves ultimately created the initiative by ballot measure. By returning legislative authority to our elected representatives, we can create a better democracy.

1. See UCLA’s guide to ballot measures for more helpful information on the spectrum of direct democratic tools statewide.

2. The Progressives of the early 1900s had some similarities and other substantial differences with today’s self-described progressive movement. On one hand, early 20th-centry Progressives strove to take on corporate power, root out government corruption, and create a social safety net; on the other hand, they supported inflationary monetary policy, restrictions on immigration, and imperialism. It was a time of different political alignments on major issues than those we have today.

3. Sometimes petitions may be good or hard to put a value on. But some context on the Aids Healthcare Foundation’s rent control campaigns: The founder of AHF has also opposed the use or PrEP, the effective AIDS prevention drug, because it would reduce the number of AIDS victims his organization gets to “help.” AHF itself runs slum-standard housing in Los Angeles. This is a bad organization to have as a standard bearer for the tenants’ rights movement.