California's Prop. 8 -- an abuse of direct democracy?
One question has been laid to rest: California's controversial anti-crime initiative doesn't violate that state's constitution, according to its supreme court.
Another question, however, is just beginning to rise on the political horizon here, as well as in the rest of the country. Is the initiative process - introduced by reform-minded politicians early this century as a form of direct democracy - being turned into a well-financed business of what one concerned lawyer calls ''balloting by slogans''?
Last June, when California voters passed Proposition 8, the so-called ''victims' bill of rights,'' they used the initiative process to vent their frustration and concern about crime, just as four years earlier citizens took matters into their own hands with the tax-slashing Proposition 13.
In each case citizens bypassed the state legislature and essentially created their own law by gathering more than 346,000 signatures to put the measure to a direct vote by Californians. Proposition 8, a sweeping bill that wrought many changes in the state's criminal justice system, from bail reform to plea bargaining, was approved by 56 percent of the electorate - and immediately challenged as unconstitutional.
A narrowly divided state Supreme Court ruled Sept. 2 that the measure did not violate a constitutional requirement that ballot measures pertain to a ''single subject'' as a safeguard against confusion and possible fraud. The court's ruling had the effect of defusing a potential conservative backlash against four justices up for approval on the November ballot. But it left the door open for future attacks on the constitutionality of each provision of the bill. Many such attacks are expected in the years to come.
What bothers some legal experts is the potential abuse of the initiative process, a system found in approximately half the states in the country. Proposition 8, they say, is a perfect example of a poorly worded, vague measure that becomes law through a well-financed campaign playing on the public's emotions.
''I think the problem with the use of the initiative today is it's become almost a business,'' says Gerald F. Uelmen, a professor of law at Loyola Law School in Los Angeles. ''If you can come up with the money, you can put just about anything on the ballot.''
Although the issue has not been widely discussed, one proposal for correcting abuses in the system is the establishment of a commission that would review drafts of initiatives to check for unintentional errors. For example, the Proposition 8 wording that revised the state's exclusionary rule - governing the admissibility of evidence - inadvertently wiped out half of the state's evidence code, says Mr. Uelman.