Essential Politics: A new focus on California’s forgotten ballot referendum

California’s 108-year-old system of direct democracy was designed to provide voters with the tools, when needed, to wrestle the power of governing away from elected officials who might be too firmly in the grasp of powerful special interests.

“They do give to the electorate the power of action when desired, and they do place in the hands of the people the means by which they may protect themselves,” then-Gov. Hiram Johnson said during his 1911 inaugural address of the three mechanisms he championed: the initiative, the recall and the referendum.

Of the three, the referendum has often been overlooked. But that has started to change, as powerful groups begin to realize its full potential.

When support means opposition

For starters, the messaging in a referendum campaign can provide an edge for those who qualify the measure for the ballot. After all, a referendum is the opposite of an initiative — where an initiative is a chance for voters to create a law, the referendum asks them whether to overturn an existing law written by the Legislature.

That means opponents of the referendum effort actually need voters to cast a ballot in support.

Take Proposition 25, the November ballot measure that overturned a 2018 state law to abolish cash bail in California. Voters who agreed with that law needed to vote yes, while those who agreed with the bail bonds industry — the group that placed the measure on the ballot — needed to vote no. In the end, 56% of voters rejected Proposition 25, and the historic criminal justice law was abolished.

Gale Kaufman, one of California’s most experienced Democratic campaign consultants, was hired to run the campaign in support of the law abolishing cash bail — in other words, to get voters to approve Proposition 25. She said the usual playbook, where voters would be urged to reject the wishes of a powerful group by voting no, didn’t apply. Her campaign wanted voters to fight back against the bail industry by ... voting yes.

“We should have been the ‘no’ side; we should never have been the ‘yes’ campaign,” Kaufman told me. “Being ‘yes’ as opposed to being ‘no’ on a referendum is very hard.”

Which is where Senate Constitutional Amendment 1 comes in, introduced on the first day of the new legislative session by state Sen. Bob Hertzberg (D-Van Nuys). The proposal would flip the rules: a yes vote on a referendum would overturn the law, and a no vote would uphold it — aligning the referendum with the general good guys/bad guys rules of ballot measures.

But the referendum offers its supporters a unique power long before election day.

Putting California laws on hold

If backers of a referendum gather enough voter signatures, the law they oppose is put on hold until voters weigh in on election day — even if the next election is two years away.

Granted, most critics of laws written in Sacramento can’t pull it off. It can be pricey to pay petition firms to quickly gather enough voter signatures to qualify a ballot referendum (currently about 625,000 valid signatures) in the allotted time of just 90 days.

But it’s not that much money for large industries that view the law in question as an existential threat. We first saw this in 2014, when legislators adopted a statewide ban on single-use plastic bags in grocery and convenience stores, signed into law by then-Gov. Jerry Brown on the final day of September that year. A plastic-bag industry group gathered enough signatures to qualify a referendum for the November 2016 election. Voters ultimately sided with lawmakers and affirmed the bag ban, but the industry had some 23 months of business as usual while preparing for the change.

The bail bonds industry, as we’ve already pointed out, not only blocked implementation of the law banning cash bail but actually prevailed in permanently erasing it with Proposition 25.

And the process is back with Senate Bill 793, the law Gov. Gavin Newsom signed in September banning the sale of flavored tobacco in California. The tobacco industry quickly filed a proposed referendum and spent almost $7 million to gather more than 1 million signatures. If those signatures are verified, the law will be suspended until (at least) election day in November 2022.

Johnson’s 1911 crusade to establish California’s system of direct democracy sought ways to get around the Southern Pacific Railroad’s sway with members of the Legislature. More than a century later, it’s powerful interest groups who use those ballot measure tools. Look for even more of those groups to now realize they’ve overlooked the broad power provided by the referendum.

Voting like it’s 1952

With the books now officially closed on the November election, it’s worth a moment to marvel at just how many Californians cast ballots in the fall contest. And so, here’s a good trivia question for your next (virtual) cocktail party: What do Joe Biden, Dwight Eisenhower and Franklin D. Roosevelt have in common?

They won in the three elections with the highest turnout of eligible voters in California history.

Almost 17.8 million ballots were counted this year in the Golden State — more than in 20 other states and the District of Columbia combined.

What we don’t know yet, and what researchers are eager to determine, is whether the state’s diversity is reflected in those votes. For decades, the demographics of California have diverged sharply from those who cast ballots — resulting in elections largely dominated by older, white voters.

“This election definitely pushed everyone to a higher turnout,” said Mindy Romero, director of USC’s Center for Inclusive Democracy. “What we don’t yet know is what that really meant for historically underrepresented groups in the electorate.”

And now, the electoral college

The ceremonies held in all 50 state capitals on Monday should mark the official end of the 2020 presidential campaign. So why does it feel like it won’t be the end of the discussion?

Appointed members of the electoral college, 538 people across the nation, will cast their votes today under rules that generally conform to the popular vote in their states and that will declare Joe Biden the 46th president of the United States. Biden, with election returns now certified in all states, will win 306 electoral college votes, and President Trump will win 232.

Not that Trump will accept the outcome; he told a Fox News host over the weekend that the election dispute is “not over,” and he will “continue to go forward” in his insistence — against all evidence — that he won.

That position, long on fury and short on facts, failed to convince the Supreme Court to accept a case brought by Texas and a variety of Republican officials. Trump lost another round in court on Friday in Wisconsin, seeking to overturn the election results there. Meanwhile, violence erupted in Washington over the ongoing election demands by the president and his supporters.

Back to the electoral college, where participants will find strict public health rules as they gather to cast presidential ballots. In Sacramento, 55 electors will have their temperatures checked and will be required to wear masks and face shields, according to my colleague Patrick McGreevy, who reports that the event will be quick in order to minimize time in the historic state Assembly chamber.

Not that it’s dampening the enthusiasm of the Democrats chosen to cast ballots for Biden.

“This was my first presidential election, and I couldn’t be prouder to participate,” said Tayte Alexandria Williams, a Black woman who attends Southern University and A&M College in Baton Rouge, La. She said she believes her voice “collectively with my peers will forever make a difference in who gets elected and represents us.”

National lightning round

— The president-elect on Friday introduced five picks for his new administration, drawing on leading names from the Obama White House while also tapping an Ohio congresswoman and a congressional committee veteran.

— Biden has indicated that he will abide by traditional restraints on presidential power, and perhaps accept some new ones, as part of his effort to restore norms that Trump trampled. Some progressive Democrats would like to see him do just the opposite.

— Congress has passed a bill to fund the government for another week, giving lawmakers time to reach an agreement on a new coronavirus relief bill.

— Georgia election official Gabriel Sterling is girding for another battle with conspiracy theories and lies about the integrity of the voting system.

— President-elect Biden’s fractured foot is on the mend, his doctor said Saturday.

California’s essential politics

— California state parks employees are allowed to live in some beautiful spots in state-owned homes for very little rent. But a Times investigation reveals allegations of favoritism and rental rates below what’s supposed to be charged, failing to bring in enough money to cover maintenance.

— Newsom’s upcoming state budget will assume that California’s tax windfall is $15.5 billion, he said last week during an event held by a technology industry trade group.

— The new two-year session of the California Legislature began last week as legislators quickly compiled an urgent to-do list addressing the impact of the COVID-19 pandemic on housing, schools and the economy.

— A state law protecting tenants from evictions in California expires in two months, but legislators are seeking an extension until the end of 2021, citing continuing economic hardships from a new stay-at-home order that’s meant to curb the spread of the coronavirus.

— California may call itself the Golden State, but most Californians see its future as tarnished. In a wide-ranging new survey of attitudes toward the economy, 6 in 10 residents said they expect California’s children to be worse off financially than their parents.