Everyone’s Happy--Except Voters

Proposition 187 wasn’t a political hot potato. It was a stick of dynamite with a burning fuse. Now that the fuse has been doused by “mediation”--which, in effect, killed the entire measure--almost everyone is celebrating. But what about the millions of voters who overwhelmingly supported it?

Among those who are breathing easier now are:

* Gov. Gray Davis, who, as a candidate, opposed this initiative to exclude undocumented immigrants from state-funded education, social services and health care. Once in office, Davis vowed to uphold the law, generating fury among his supporters.

* Leaders of immigrant groups and civil rights organizations.

* U.S. District Judge Mariana Pfaelzer, who declared Proposition 187 unconstitutional because it usurped the federal government’s jurisdiction over immigration. Her decision now faces little risk of being overturned.

* Doctors, teachers and police officers, who won’t be asked to become agents of the Immigration and Naturalization Service. While some politicians still fear that vast expenditures on free services to undocumented residents will bust the state budget in the next economic downturn, most observers will be grateful that the more draconian provisions of the proposition will not go into effect. Tens of thousands of children will not be kicked out of school. Ailing people won’t be turned away by nurses.

* Finally, though it may seem strange, many Republicans are happy to leave Proposition 187 behind. With the measure’s previous standard bearer, former Atty. Gen. Dan Lungren, consigned from politics to radio talk, the California GOP is only too happy to follow the lead of Texas Gov. George W. Bush, who speaks Spanish and shows considerable zest in his campaign to restore the broad appeal of Lincoln’s party.

In fact, every group has reason to celebrate except one: the 5 million California voters who made Proposition 187 law in 1994. It doesn’t matter if you believed that the measure was needed to “save our state,” as its campaign slogan said, or if you were repelled by the ugly undercurrents among some of its marginal supporters. If you are a California voter, you have just lost something precious, possibly irretrievable.

The state’s initiative process is a pioneer inheritance from state founders who had a populist suspicion of power. By granting the people a degree of legislative power, California has often set the terms of the national debate, from Proposition 13 in 1978, which presaged the tax-cutting Reagan years, to anti-tobacco initiatives that paved the way for the Clinton jihad against the evil weed.

The constitutionality of any law deserves to be tested in the crucible of open court, and this is doubly true for a law passed by 59% of the voters. Incredibly, however, specific provisions of Proposition 187 were killed in closed, court-sponsored mediation meetings between the governor and opponents of Proposition 187. Webster’s defines “mediation” as the “intervention between conflicting parties to promote reconciliation, settlement or compromise.” Yet supporters of Proposition 187 were locked out of the mediation process. Only vociferous opponents of the measure were allowed to negotiate with a governor who had campaigned against the initiative as being “unconstitutional.”

This is akin to a labor negotiation in which the only parties permitted to bargain for workers rights are the company’s CEO and general counsel. It is like a divorce in which only the husband is allowed to haggle over alimony--with his own lawyer. It tortures the queen’s English to suggest such a process can be fairly called “mediation.”

An equally Orwellian twist of mind is necessary to accept Pfaelzer’s ruling that the law conflicts with federal authority over immigration. Agree or disagree with the policy, surely it is the sovereign right of state taxpayers to decline to spend hundreds of millions of state dollars providing state services to people whose very presence is a violation of law.

California has sidestepped a very difficult and nasty confrontation between classes and races. Perhaps it is for the best that Proposition 187 will not become the law of the land.

The means of this decision, however, will leave a legacy that may far outlive the consequences of the decision itself. Sophistry and inside dealing have been used to extinguish direct democracy in California.