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Reserved Powers of the People: Initiative and Referendum

Proposition 7 was enacted by the people in a special statewide election on October 10, 1911. It amended one section of the California Constitution, Article IV, Section 1. The amendment contained 2,257 words in 15 paragraphs. It covered two different subjects that it called "initiative" and "referendum." The amendment was intended to put a monkey wrench into the iron grip that the iron horse (the railroads) held over the California Legislature. Frank Norris wrote a historical novel about the corruption in his classic, The Octopus.

Counties and cities were not the target of the measure. Some city charters already reserved initiative and recall powers. It's not surprising, therefore, that counties and cities were treated as an extra feature that would garner more voter approval for the amendment.

Let that sink in. Some charter counties and charter cities already had empowered their electors to do what Proposition 7 (1911) was doing vis-á-vis the Legislature. They didn't need a constitutional amendment to do it. Let us repeat, charter counties and charter cities didn't need a constitutional amendment to enable their electors to legislate directly through the ballot box. What Proposition 7 (1911) did is to put the electors of all counties and cities on an equal footing. As you read ¶ 13, note that Proposition 7 (1911) expressly avoided overriding any local charters. It also authorized the Legislature to make procedures for exercising those powers uniform for the counties and cities that did not already have procedures.

Since then, the Legislature, either directly or through constitutional commissions, has moved around and slightly modified all those words. The changes were adopted by popular vote, as all constitutional changes must be.

Here's the thing about reorganizations. They were done with the express intent to not change the meaning of the law, as it was originally enacted.

Consequently, when one wants to determine what the meaning of any of the modified provisions is, one must go back to the original. Judges know this. Lawyers should know this. Unfortunately, people are lazy.

In this comment, we'll only discuss the referendum power. Below, we have reproduced from the cited source, the entirety of Proposition 7. The paragraphs are numbered for easier reference. All references to ¶ numbers are to Proposition 7.

Proposition 7: City and County Referenda

In ¶ 1, "the people reserve to themselves ... the power, at their own option, to so adopt or reject any act, or section or part of any act, passed by the legislature." Can we agree that the power, as reserved, has no limitations or restrictions or exceptions of any kind?

Consequently, when anyone refers to the referendum power, they are talking about a sovereign, plenary power.

Remember, that Proposition 7 amended the section that granted powers to the Legislature. That first paragraph and every other of the 15 paragraphs (except ¶ 13) in the amendment is referring to the initiative and referendum power with respect to the Legislature.

In ¶ 13, Proposition 7 reserves these plenary powers to the "electors" of cities and counties.

The initiative and referendum powers of the people are hereby further reserved to the electors of each county, city and county, city and town of the state, to be exercised under such procedure as may be provided by law.

What does "by law" mean? The very next sentence uses "by law" again, recognizing that there is no such law at the time. Would anyone argue that "by law" does not mean by an act of the Legislature, the law-making authority of the state? The drafters of Proposition 7, though, didn't want the Legislature to prevent or delay the "electors" from jumping right in with their own initiative and referendum measures, so the drafters allowed the local legislative body to "provide for the manner of exercising" of the powers until the Legislature stepped in. There's a little more in the paragraph telling the local governments that Proposition 7 does not affect or limit their powers to have charters.

Until otherwise provided by law, the legislative body of any such county, city and county, city or town may provide for the manner of exercising the initiative and referendum powers herein reserved ...

The final paragraph, ¶ 15, confirmed that the amendment was self-executing, if it wasn't already obvious. If you followed the Fourteenth Amendment circus in early 2024 at the United States Supreme Court surrounding the Colorado Supreme Court's decision about ballot access for candidates, you will likely have learned that self-executing means that no additional legislation is needed to implement a particular section of a constitution. In the case of Proposition 7, the 15 paragraphs provided for all the procedures needed to implement it.

This section is self-executing, but legislation may be enacted to facilitate its operation, but in no way limiting or restricting either the provisions of this section or the powers herein reserved.

Note however, that when referring to "legislation" that may be enacted, it expressly prohibits "limiting or restricting ... the powers herein reserved." While Proposition 7 expressly limited or restricted the powers (initiative and referendum) with respect to the Legislature, it made no limits or restrictions with respect to cities and counties. Consequently, the "electors" of the cities and counties have plenary powers over city and county matters.

Proposition 7 and Bad Case Law

With respect to the Wilde opinion, therefore, there is an argument that the Legislature is without authority to impose on cities even the modest restrictions that it imposed in what is now Elections Code section 9235.

What's more concerning was the Wilde opinion cites earlier opinions to support its conclusions. The most troubling of these is Geiger v. Board of Supervisors (1957) 48 Cal.2d 832. We'll briefly discuss it here.

Geiger was an opinion on an attempt by the electors of Butte County to force the supervisors to place a referendum on the ballot in connection with a just-enacted one-percent sales tax. At the time of the opinion, the provisions of Proposition 7 were still unchanged and unmoved in Article IV, Section 1 of the Constitution.

The court started out with the issue: "The principal question is whether section 1 of article IV of the California Constitution operates to withhold from the voters of a county the right of referendum with respect to tax measures such as those authorized by the Bradley-Burns Act." Id., at p. 832. It then quoted sparingly (it didn't need to address all 2,257 words) starting at ¶ 5 and ending at ¶ 15. It stressed the exception "except acts calling elections, acts providing for tax levies or appropriations for the usual current expenses of the State, and urgency measures" in ¶ 5.

In the very next paragraph, it held:

The constitutional provisions which reserve the referendum powers to the people expressly except "tax levies or appropriations for the usual current expenses of the State." It is apparent that the same exception applies to the referendum powers reserved to the county electors, and, therefore, the Constitution, standing alone, does not secure to county electors the right of referendum over tax levies or appropriations for the usual current expenses of county government.

Id.

Did you see that? Without any reasoning or citations or logic, the court simply says: "It is apparent that the same exception applies to the referendum powers reserved to the county electors ..." Excuse us, but the referendum powers in ¶ 1 are plenary, ¶ 5 contains exceptions expressly for statewide referenda. Were Geiger's lawyers asleep at the wheel? Ms. Wilde's lawyers certainly were.

Geiger goes on to further justify its decision with bunkum about the importance of taxes and a rather irrational analysis of the 1939 Elections Code, where it held that "all other ordinances" could not possibly apply to a tax ordinance. We suppose that it hadn't heard of the rule that courts should jealously guard these reserved powers. Butte County, like the rest of California, was probably booming in 1957. You gotta get while the getting's good..

If you read (please do) ¶ 3 and ¶ 4, you will learn that the original initiative power had no, that's right -- zero, exceptions. It really was a true plenary power. However, as one might expect, the Legislature never liked the people stepping on its turf. Over the years, the supposedly "jealously guarded" initiative power has been substantially diminished. What created those restrictions? Amendments to the Constitution pushed, unsurprisingly, by the Legislature, which does have plenary power to put amendments and, yes, revisions (a term it invented) to the Constitution on the ballot at its pleasure. That was what the fight at the Supreme Court was on May 8 in Legislature of the State of California v. Weber (Hiltachk) (2023) S281977. The Legislature claimed that TPGAA was a "revision" -- one of the restrictions it convinced the voters to adopt. You see how this works?

Conclusion

Note however, that the while there were subsequent restrictions on the initiative power, those restrictions were only for statewide measures. Today, the only constitutional restrictions to either the initiative power or the referendum power are for statewide measures.

The initiative and referendum powers for the electors of counties and cities and some special districts have not been restricted by the Constitution. You might be asking, how did electors of some special districts get the initiative and referendum powers without a constitutional amendment? The answer is that the Legislature granted the electors of some special districts those powers. At the same time, in the same enabling statutes, the Legislature also granted the counties and cities and some special districts the same initiative and referendum powers as the electors. There was nothing in the Proposition 7 (1911) that required the Legislature to do that. Consequently, the Legislature could take those powers away from the counties and cities and some special districts (but not from the electors of counties or cities), or restrict them or do anything else with them it pleases.

Let the bolded statement above sink in. We'll discuss this further when it comes to the Coalition v. City of Upland (2017) 3 Cal.5th 924 opinion.

You should also take away from this short presentation that the initiative and referendum powers in the context of the State are fundamentally different that those powers in the context of local governments.

This is the precise reason why TPGAA is so bad for local measures. The drafters of TPGAA consider that the powers are the same for both the State and local governments.

The lazy drafters, like lazy lawyers and judges, didn't do their homework. If enacted, TPGAA will wreak havoc on local taxpayers.

Proposition 7 (1911)

Source: DOCUMENTS ON THE STATE-WIDE INITIATIVE, REFERENDUM, AND RECALL (1912)

[The following has been modified from the original for presentation purposes.]

XII. California

[The Legislature of California passed initiative, referendum and recall amendments on February 20, 1911, and they were adopted by an overwhelming vote on October 10, 1911. The initiative and referendum amendment follows. For the recall see below, p. 264.]

The Constitutional Amendment l

Senate Constitutional Amendment No. 22. A resolution to propose to the people of the State of California an amendment to the constitution of said state, by amending section 1 of article 4 thereof, relating to legislative powers, and reserving to the people of the State of California the power to propose laws, statutes and amendments to the constitution and to enact the same at the polls, independent of the legislature and also reserving to the people of the State of California the power to approve or reject at the polls any act or section or part of any act of the legislature.

The legislature of the State of California, at its regular session commencing on the 2d day of January, 1911, two-thirds of all the members elected to each of the two houses of said legislature voting in favor thereof, hereby propose that section 1 of article 4 of the constitution of the State of California, be amended so as to read as follows : —

Section 1. The legislative power of this state shall be vested in a senate and assembly which shall be designated "The legislature of the State of California," but the people reserve to themselves the power to propose laws and amendments to the constitution, and to adopt or reject the same, at the polls independent of the legislature, and also reserve the power, at their own option, to so adopt or reject any act, or section or part of any act, passed by the legislature.

The enacting clause of every law shall be "The people of the State of California do enact as follows:" —

The first power reserved to the people shall be known as the initiative. Upon the presentation to the secretary of state of a petition certified as herein provided to have been signed by qualified electors, equal in number to eight per cent of all the votes cast for all candidates for governor at the last preceding general election, at which a governor was elected, proposing a law or amendment to the constitution, set forth in full in said petition, the secretary of state shall submit the said proposed law or amendment to the constitution to the electors at the next succeeding general election occurring subsequent to ninety days after the presentation aforesaid of said petition, or at any special election called by the governor in his discretion prior to such general election. All such initiative petitions shall have printed across the top thereof in twelve point black-face type the following : "Initiative measure to be submitted directly to the electors."

Upon the presentation to the secretary of state, at any time not less than ten days before the commencement of any regular session of the legislature, of a petition certified as herein provided to have been signed by qualified electors of the state equal in number to five per cent of all the votes cast for all candidates for governor at the last preceding general election, at which a governor was elected, proposing a law set forth in full in said petition, the secretary of state shall transmit the same to the legislature as soon as it convenes and organizes. The law proposed by such petition shall be either enacted or rejected without change or amendment by the legislature, within forty days from the time it is received by the legislature. If any law proposed by such petition shall be enacted by the legislature it shall be subject to referendum, as hereinafter provided. If any law so petitioned for be rejected, or if no action is taken upon it by the legislature within said forty days, the secretary of state shall submit it to the people for approval or rejection at the next ensuing general election. The legislature may reject any measure so proposed by initiative petition and propose a different one on the same subject by a yea and nay vote upon separate roll call, and in such event both measures shall be submitted by the secretary of state to the electors for approval or rejection at the next ensuing general election or at a prior special election called by the governor, in his discretion, for such purpose. All said initiative petitions last above described shall have printed in twelve point black-face type the following: "Initiative measure to be presented to the legislature."

The second power reserved to the people shall be known as the referendum. No act passed by the legislature shall go into effect until ninety days after the final adjournment of the session of the legislature which passed such act, except acts calling elections, acts providing for tax levies or appropriations for the usual current expenses of the state, and urgency measures necessary for the immediate preservation of the public peace, health or safety, passed by a two-thirds vote of all the members elected to each house. Whenever it is deemed necessary for the immediate preservation of the public peace, health or safety that a law shall go into immediate effect, a statement of the facts constituting such necessity shall be set forth in one section of the act, which section shall be passed only upon a yea and nay vote, upon a separate roll call thereon ; provided, however, that no measure creating or abolishing any office or changing the salary, term or duties of any officer, or granting any franchise or special privilege, or creating any vested right or interest, shall be construed to be an urgency measure. Any law so passed by the legislature and declared to be an urgency measure shall go into immediate effect.

Upon the presentation to the secretary of state within ninety days after the final adjournment of the legislature of a petition certified as herein provided, to have been signed by qualified electors equal in number to five per cent of all the votes cast for all candidates for governor at the last preceding general election at which a governor was elected, asking that any act or section or part of any act of the legislature, be submitted to the electors for their approval or rejection, the secretary of state shall submit to the electors for their approval or rejection, such act, or section or part of such act, at the next succeeding general election occurring at any time subsequent to thirty days after the filing of said petition or at any special election which may be called by the governor, in his discretion, prior to such regular election, and no such act or section or part of such act shall go into effect until and unless approved by a majority of the qualified electors voting thereon ; but if a referendum petition is filed against any section or part of any act the remainder of such act shall not be delayed from going into effect.

Any act, law or amendment to the constitution submitted to the people by either initiative or referendum petition and approved by a majority of the votes cast thereon, at any election, shall take effect five days after the date of the official declaration of the vote by the secretary of state. No act, law or amendment to the constitution, initiated or adopted by the people, shall be subject to the veto power of the governor, and no act, law or amendment to the constitution, adopted by the people at the polls under the initiative provisions of this section, shall be amended or repealed except by a vote of the electors, unless otherwise provided in said initiative measure ; but acts and laws adopted by the people under the referendum provisions of this section may be amended by the legislature at any subsequent session thereof. If any provision or provisions of two or more measures, approved by the electors at the same election, conflict, the provision or provisions of the measure receiving the highest affirmative vote shall prevail. Until otherwise provided by law, all measures submitted to a vote of the electors, under the provisions of this section, shall be printed, and together with arguments for and against each such measure by the proponents and opponents thereof, shall be mailed to each elector in the same manner as now provided by law as to amendments to the constitution, proposed by the legislature ; and the persons to prepare and present such arguments shall, until otherwise provided by law, be selected by the presiding officer of the senate.

If for any reason any initiative or referendum measure, proposed by petition as herein provided, be not submitted at the election specified in this section, such failure shall not prevent its submission at a succeeding general election, and no law or amendment to the constitution, proposed by the legislature, shall be submitted at any election unless at the same election there shall be submitted all measures proposed by petition of the electors, if any be so proposed, as herein provided.

Any initiative or referendum petition may be presented in sections, but each section shall contain a full and correct copy of the title and text of the proposed measure. Each signer shall add to his signature his place of residence, giving the street and number if such exist. His election precinct shall also appear on the paper after his name. The number of signatures attached to each section shall be at the pleasure of the person soliciting signatures to the same. Any qualified elector of the state shall be competent to solicit said signatures within the county or city and county of which he is an elector. Each section of the petition shall bear the name of the county or city and county in which it is circulated, and only qualified electors of such county or city and county shall be competent to sign such section. Each section shall have attached thereto the affidavit of the person soliciting signatures to the same, stating his own qualifications and that all the signatures to the attached section were made in his presence and that to the best of his knowledge and belief each signature to the section is the genuine signature of the person whose name it purports to be, and no other affidavit thereto shall be required. The affidavit of any person soliciting signatures hereunder shall be verified free of charge by any officer authorized to administer oaths. Such petitions so verified shall be prima facie evidence that the signatures thereon are genuine and that the persons signing the same are qualified electors. Unless and until it be otherwise proven upon official investigation, it shall be presumed that the petition presented contains the signatures of the requisite number of qualified electors.

Each section of the petition shall be filed with the clerk or registrar of voters of the county or city and county in which it was circulated, but all said sections circulated in any county or city and county shall be filed at the same time. Within twenty days after the filing of such petition in his office the said clerk, or registrar of voters, shall determine from the records of registration what number of qualified electors have signed the same, and if necessary the board of supervisors shall allow said clerk or registrar additional assistants for the purpose of examining such petition and provide for their compensation. The said clerk or registrar, upon the completion of such examination, shall forthwith attach to said petition, except the signatures thereto appended, his certificate, properly dated, showing the result of said examination and shall forthwith transmit said petition, together with his said certificate, to the secretary of state and also file a copy of said certificate in his office. Within forty days from the transmission of the said petition and certificate by the clerk or registrar to the secretary of state, a supplemental petition identical with the original as to the body of the petition, but containing supplemental names, may be filed with the clerk or registrar of voters, as aforesaid. The clerk or registrar of voters shall within ten days after the filing of such supplemental petition make like examination thereof, as of the original petition, and upon the completion of such examination shall forthwith attach to said petition his certificate, properly dated, showing the result of said examination, and shall forthwith transmit a copy of said supplemental petition, except the signatures thereto appended, together with his certificate, to the secretary of state.

When the secretary of state shall have received from one or more county clerks or registrars of voters a petition certified as herein provided to have been signed by the requisite number of qualified electors, he shall forthwith transmit to the county clerk or registrar of voters of every county or city and county in the state his certificate showing such fact. A petition shall be deemed to be filed with the secretary of state upon the date of the receipt by him of a certificate or certificates showing said petition to be signed by the requisite number of electors of the state. Any county clerk or registrar of voters shall, upon receipt of such copy, file the same for record in his office.

The duties herein imposed upon the clerk or registrar of voters shall be performed by such registrar of voters in all cases where the office of registrar of voters exists.

The initiative and referendum powers of the people are hereby further reserved to the electors of each county, city and county, city and town of the state, to be exercised under such procedure as may be provided by law. Until otherwise provided by law, the legislative body of any such county, city and county, city or town may provide for the manner of exercising the initiative and referendum powers herein reserved to such counties, cities and counties, cities and town, but shall not require more than fifteen per cent of the electors thereof to propose any initiative measure nor more than ten per cent of the electors thereof to order the referendum. Nothing contained in this section shall be construed as affecting or limiting the present or future powers of cities or cities and counties having charters adopted under the provisions of section eight of article eleven of this constitution.

In the submission to the electors of any measure under this section, all officers shall be guided by the general laws of this state, except as is herein otherwise provided.

This section is self-executing, but legislation may be enacted to facilitate its operation, but in no way limiting or restricting either the provisions of this section or the powers herein reserved.

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