[EL] Getting Prop. 6 (measure against California’s SB 1 gas tax) Off the Ballot?

[D. A. Holtzman]

I’ve been wondering about whether a lawsuit could get Proposition 6 off 
the California ballot before the November election.The suit I have in 
mind would have the measure held to propose a constitutional revision, 
not an amendment, and then have it removed from the ballot.If you’d be 
interested in pursuing this, or have thoughts to share, please write me 
directly.


I know there’s a general presumption in California against preelection 
review of ballot measures. But per Senate of State of Cal. V. Jones, 21 
Cal. 4th 1142, 1153 (1999), that rule “does not preclude preelection 
review when the challenge is based upon a claim . . . that the proposed 
measure may not properly be submitted to the voters . . . because the 
measure amounts to a constitutional REVISION rather an 
amendment.”[Emphasis added.]

Revision-not-amendment opinions apparently turn on both quantitative and 
qualitative analyses. Although Prop. 6 does not propose a large quantity 
of changes to the California Constitution, it does propose at least two 
qualitative changes that would fundamentally revise the well-established 
basic framework of representative democracy in the state.

Since only the Legislature may put constitutional revisions on the 
ballot (initiative revisions are not allowed), I’m thinking the 
California courts would strike the initiative here if asked to do so.


Here are the two constitutional revisions I see in Prop. 6:

Revision A: Prop. 6 essentially seeks to require an automatic referendum 
on any tax on motor vehicle gasoline or diesel fuel that the Legislature 
votes to impose.This would be an exception from a key structural element 
of the Constitution: It is fundamental part of our state constitutional 
scheme that the legislature be allowed to legislate on any 
matter.(Similarly, there must be at least one court that is a Court of 
General Jurisdiction.)Although the California Constitution does require 
voter approval of some taxes enacted by LOCAL governing bodies, it does 
not so limit any taxes duly enacted by the STATE Legislature. That the 
State Legislature may enact laws without voter approval is an integral 
part of the representative democracy at the heart of the California 
Constitution.

California is of course known for having initiative, referendum and 
recall, and referenda are permitted for ordinary statutes.Yet Prop. 6 
would give opponents of a legislative majority multiple referenda free 
from the costly and otherwise deliberately limiting integral structural 
requirement of petitioning.Then, although Prop. 6 is limited to one 
perennial subject of public concern (taxing motor vehicle fuel), it 
would set a precedent that could lead to devastating further 
enfeeblement of our representative government.

The California Constitution clearly provides that a legislative majority 
may legislate.Changing that key element of the Constitution would 
certainly amount to fundamentally revising the Constitution.

Revision B. SB 1 was an urgency bill.The California Constitution 
specifically blocks urgency bills from being overturned by referendum, 
and part of Prop. 6 is essentially a referendum of SB 1.There the 
proposition is seeking an exception from a constitutional rule. The rule 
is a key element of the California Constitution.Its function is to 
enable the State Legislature to definitively address highly important 
concerns.Prop. 6’s enactment would set in motion the demolition of that 
element, as others surely would seek the same exception, and the 
exception would swallow the rule.


That’s the basic outline.Again, I’d like to hear list members thoughts 
directly, and perhaps hear from someone who’d like to pursue the issue.

- david holtzman

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