Smoke and Mirrors

Time for another Boston Tea Party. The 4 1/2 million people who voted for [Proposition] 209 have just been given a thumbing of the nose by one man in a robe.

--Ward Connerly, chairman of the Proposition 209 campaign, reacting to a federal judge’s order to delay implementation of the proposition.

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A friend in the Gold Country has begun to market a new T-shirt. On the breast it sports a cannabis logo, and across the back a slogan: “Prop. 215 Makes Me Sick.” The joke should be apparent to anyone who favors a loose interpretation of the freshly passed medical marijuana initiative.

Not that California is in a joking mood these days. In the post-election follies now playing across the state, political leaders and their letter-to-editor-writing constituents seem to have checked their senses of humor and irony, as well as memories, at the golden door.

There has been a great bemoaning from on high of a federal judge’s decision last week to block, at least temporarily, Proposition 209, the anti-affirmative action initiative. This, complained Gov. Pete Wilson, was “an affront” to California voters. How tragic, added Dan Lungren, the attorney general, that “you have an initiative passed by a majority of the people and immediately challenged by those who lost at the polls.”

Such lamentations are almost comic when held beside the election night reaction of these same gentlemen to Proposition 215, which prevailed by virtually the same margin as Proposition 209. Oh, those voters, they clucked. Duped again. They had neglected, Wilson moaned, to “pay attention.” They had blundered, added Lungren, into a “disaster,” and he vowed to “use every legal avenue to fight it.”

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Connerly joined the chorus with his Boston Tea Party comment. At least he demonstrated a flickering interest in history. For many critics of U.S. District Judge Thelton Henderson’s ruling, historical awareness extends, hazily, only to 1994 and Proposition 187, the anti-illegal immigration measure now wending through the courts.

They see an ominous common thread running through these two legal challenges: Majority votes; judges stall; will of The People thwarted. In fact, the purpose of Proposition 187--as proponents from Wilson down noted throughout the campaign--was to provoke a court test. Only 10 years earlier, the U.S. Supreme Court had declared it unconstitutional to deprive illegal immigrant children of a public education. Proposition 187 was, in effect, a legal challenge to this ruling, and thus is proceeding apace.

That much of the squawking over the Proposition 209 ruling has come from Republican legislators is somewhat ironic. Some of those now appalled that a judge would invade the sanctuary of an election result had spent the previous session working to disempower the Coastal Commission. The Coastal Commission, they might be interested to remember, was the result of Proposition 20, sacredly passed by a majority of California voters in 1972.

“These propositions” said Jim Shultz, executive director of the public interest Democracy Center and a student of the California initiative process, “are almost always challenged, and it is done from both sides. Sometimes the left screams. Sometimes the right screams. It’s standard operating procedure.”

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That propositions endure legal scrutiny after passage is a logical byproduct of putting legislation to popular votes. Legal questions that could be eliminated in statehouse debate instead are left for courts to resolve. In drafting a ballot initiative, as much attention must be paid to persuasive sloganeering as to legal nuance. And opponents often will withhold their fire until after the vote, trusting lawyers more than political consultants to protect their interests.

“One thing propositions do,” said David Roe, an author of Proposition 65, a 1986 toxics initiative that has withstood a succession of administrative end runs, “is make lots and lots of lawyers rich.”

And finally, voters indeed can succumb to bad information or their worst instincts--as clearly the anti-Proposition 215 spoilsports will argue, however selectively. The uproar over Proposition 209’s legal twists has reminded some California scholars of the anti-Chinese provision of the 1879 Constitution and the so-called anti-Okie laws of the 1930s. Both of these beauties enjoyed hearty support among Californians, only to be canceled by the courts.

On a personal note, it takes your correspondent back to Proposition 103, the auto insurance rollback of 1988. Every day for years he would lope out to his mailbox, hoping this would be the day that, like a good neighbor, his insurer would be there, with a rebate check. Every day he would slink back empty-handed, victim of a legal nose-thumbing. In fact, he feels a little sick right now just thinking about it.