Op-Ed: California’s Supreme Court can kill Cal-3 quickly and save us all a lot of trouble

The Cal-3 ballot measure set to be voted on in November needs a mercy killing from the California Supreme Court, and if it comes fast enough, it could save a lot of expense and wasted effort.

The proposition, designed by venture capitalist Tim Draper to split California into three states, may or may not be the most sensible way to divide up our diverse and powerful state. But the legal barriers to its enactment are overwhelming.

For example, will Congress, which must approve the creation of new states out of an old one, go along, given the partisan politics of everything these days and the impact of four new senators on the balance of power in the U.S. Senate? Will consent of the state Legislature be required (and forthcoming), or would voter approval through the initiative process suffice?

The legal fate of the initiative will probably never even get to questions of legislative approval. One way or another, the California Supreme Court will be called upon, and it will almost certainly rule that the way in which Draper is trying to create three Californias violates the state Constitution and has no place on the ballot to begin with.

First, the California Supreme Court has long recognized a rule that voters cannot approve as a constitutional amendment any measure that “revises” rather than “amends” the state Constitution. The line between revision and amendment can be murky in some cases, but it is not murky here. As the state Supreme Court explained in a 1990 case, Raven vs. Deukmejian, “far-reaching changes in the nature of our basic governmental plan” amount to a revision rather than an amendment.

The nonpartisan state Legislative Analyst’s Office has analyzed the Cal-3 measure and its report makes the “far-reaching” consequences of the proposal clear.

The fiscal effects of the split would be enormous because of disproportionate per capita personal income (the Bay Area is rich; the San Joaquin Valley is poor). There would be major difficulties concerning state universities, prisons and public education. The split would also prompt fundamental changes in the provision of health and social services, not to mention a cataclysmic battle over water.

In other words, the proposal to create three Californias is about as far-reaching a change in the nature of the state as one can imagine. If it were to succeed, the state would cease to exist.

The second legal flaw, as attorney Bob Wolfe first pointed out, is technical but important. Two types of initiatives are allowed to go on the California ballot, those that add new state statutes and those that amend the state Constitution. An initiative that adds a new statute needs fewer signatures to qualify for the ballot than one that amends the Constitution. When Draper first tried to split the state — into six parts — his measure was framed as a constitutional amendment, and he failed to gather enough signatures to qualify it for the 2016 ballot. He changed tactics with the Cal-3 initiative; it is a proposed statute, and it met the lower threshold of petition signatures.

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Now, if California voters cannot “revise” the state Constitution through a constitutional amendment, they also can’t do it through a mere statute. Monumental changes to the nature of the state require more than just 50% + 1 of the votes cast in a single election for a measure that qualified for the ballot with a relatively low number of signatures. “Revisions” instead require a state constitutional convention.

The California Supreme Court allows for pre-election review of ballot measures, and it is possible to file a challenge directly in that court. Removing a measure from the ballot before a vote is appropriate when a measure cannot legally be put before the voters, as is manifestly the case with Draper’s initiative.

Let’s hope someone files that suit and spares everyone a potentially expensive and nasty campaign for nothing.

Richard L. Hasen is a professor at UC Irvine School of Law and the author of “The Justice of Contradictions: Antonin Scalia and the Politics of Disruption.”

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