McGeorge Adjunct Professor Chris Micheli

There are a number of instances where standardized language is contained in proposed ballot measures in California. While initiatives do not need to contain all of these provisions, proponents should study relevant laws and determine if they need to include one or more of these provisions in their initiatives. Those instances are amendments, severability, defense of the initiative, competing measures, effective and operative dates, and how to properly construe the initiative.

Amendments

Generally, in California once an initiative is approved by the voters it can only be amended by another statewide vote. But in many instances initiatives contain language allowing the Legislature to amend the measure, usually by a two-thirds vote. For example, “The provisions of Section 5 may be amended so long as such amendments are consistent with and further the intent of this Act by a statute that is passed by a two-thirds vote of the members of each house of the Legislature and signed by the Governor.” 

Severability 

This is language that determines if sections of the ballot measure can remain in effect if other portions of the measure are struck down in court. Example language in a ballot measure that states sections of the measure stay in effect if other sections of the measure are deemed illegal or unenforceable looks like, “The provisions of this Act are severable. If any portion, section, subdivision, paragraph, clause, sentence, phrase, word, or application of this Act is for any reason held to be invalid by a decision of any court of competent jurisdiction, then that decision shall not affect the validity of the remaining portions of this Act.”

Defense of the Initiative

This provision addresses whether or not the initiative can be defended in court by the initiative’s proponents or a third party should the Attorney General or other state officials fail to defend the measure. Example language here could read, “Notwithstanding any other provision of law, if the state or any of its officials fail to defend the constitutionality of this initiative following its approval by the voters then any other state governmental agency of this state shall have the authority to intervene in any court action challenging the constitutionality of this initiative.”

Competing Measures

One tactic that opponents sometimes employ to fight a ballot measure is to place a competing measure to knock out another initiative on the same statewide ballot on the same topic. The state Constitution provides that in this case, the measure receiving the highest number of affirmative votes prevails, but initiatives can also include language to ensure that competing measures do not take effect in their entirety. That language can look like, “In the event that initiative and another measure addressing this topic appear on the same statewide ballot, the provisions of the other measure shall be deemed to conflict with this measure. In the event that this initiative receives a greater number of affirmative votes than a measure deemed to conflict with it, then the provisions of this initiative shall prevail in their entirety and the other measure shall be null and void.”

Effective and/or Operative Dates

The effective date is when a measure is officially on the books, if you will. The operative date is when that measure becomes enforceable. Article II, Section 10(a) of the state constitution provides that an initiative approved by the voters is effective five days after the Statement of the Vote is filed by the Secretary of State. Measures can provide that they become operative after the effective date. An example of language doing so looks like, “The provisions of this Act shall apply in any action that has not been resolved by way of a final settlement, judgement, or arbitration award as of the effective date of this Act provided that Section 2 of this Act shall apply prospectively to cases filed 90 days or more after the Act takes effect.”

Construing the Measure 

Here is where an initiative contains language that provides instructions for how the courts should construe the initiative. One example of that kind of language is, “This initiative shall be liberally construed to effectuate its purposes.”

You can find the full transcript of today’s podcast here.

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