An Arrogant Decision Is Prompted by a Bad Process

The Times opposed Proposition 140, the term limits initiative that California voters passed fairly and squarely in 1990, endorsing instead a less severe term limits measure. We opposed Proposition 140 in large part because that measure bars legislators for life from seeking their old jobs once they are “termed out,” arbitrarily turning able leaders out of office along with the inept.

Our opposition aside, the federal appellate court’s decision Tuesday invalidating Proposition 140 is an intolerable intrusion into the electoral process. The court used the surprising reasoning that voters didn’t know what they were doing when they approved the lifetime ban. So shouldn’t we simpletons be saved from the consequences of our own ignorance? No, thanks.

Tuesday’s ruling came on an appeal of a federal district judge’s decision earlier this year striking down legislative term limits on the grounds that the lifetime ban was unconstitutional. But the three-judge panel of the U.S. 9th Circuit Court of Appeals did not decide the constitutionality of a lifetime ban, ruling instead that the electorate was never explicitly told of the lifetime ban. As a result, the initiative violates “the people’s fundamental right to elect whomever they choose.” But how can three judges presume to know what the 3.7 million voters who approved the proposition understood?

Complex, deliberately confusing and just plain stupid ballot initiatives drafted by special interests for special interests have lamentably been the rule, not the exception, in California of late. Remember Proposition 188 on the November 1994 ballot, which would have weakened laws limiting cigarette smoking rather than strengthening them, as the measure’s tobacco industry backers claimed? How many really understood the tort reform initiatives they voted on last year or that Proposition 218, which passed last November, allows only property owners to vote on special assessments by local governments?

Voters unwilling to educate themselves beyond advertising sound bites also have themselves to blame for the mess that is our initiative process.

The U.S. Supreme Court is likely to soon end debate over the legality of Proposition 140. But the real remedy for complex and cunning initiatives lies in a long-overdue reform of the initiative process. The obvious fixes are simplified ballot language rather than the deliberate obfuscation that often prevails; fuller financial disclosure of those bankrolling and opposing a measure; procedures to correct drafting errors in an initiative and to help voters make sense of competing initiatives on the same ballot. The remedy is not in the arrogance of judges determining, long after an election, just what voters understood.