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All or nothing? Let the voters decide

The courts should allow Measure R to mix term limits and ethics reforms.

September 02, 2006|Richard L. Hasen | RICHARD L. HASEN specializes in election law at Loyola Law School. He writes the Election Law Blog (electionlawblog.org).

WOULD YOU like fries with those term limits?

The Los Angeles City Council has placed Measure R on the November ballot, which, if passed, would ease the current limit of two terms for City Council members, allowing them to run for a third four-year term. In addition, the measure would impose new restrictions on lobbyist campaign contributions and enact a host of other "good government" provisions.

But voters may not get a chance to vote on Measure R because opponents have filed suit to have it removed from the ballot. Courts should leave Measure R on the ballot and let the voters decide whether or not to pass it.

The lawsuit, scheduled to be heard in Superior Court on Wednesday, claims that Measure R violates the California Constitution because the city cannot put before the voters a measure dealing with more than one subject (in this case, term limits and lobbying and ethics reform).

The legal argument is a convoluted one, because the constitutional prohibition against having more than one subject applies expressly to certain measures proposed to voters by the California Legislature and to voter initiatives, not to measures proposed by local legislative bodies. Opponents argue that the same single-subject limit extends by implication to measures, such as Measure R, placed on local ballots by a city council.

But let's put aside the legal technicalities here. The key question is this: Should voters be allowed to vote on a measure that combines two or more different subjects? Suppose a measure has two provisions, A and B. Voters may dislike A but really like B. By packaging A and B together in one measure, the argument goes, voters would vote for the package to get B but would be forced to swallow A in the process. In the context of Measure R, the City Council members have a self-interest in extending the length of their terms, and they might be trying to get voters to buy term-limits reform if it is packaged with other good-government measures.

This argument has some merit, and the concern about ballot measures giving voters an "all or nothing" package choice is what motivated placing single-subject requirements in the state Constitution. Nonetheless, there are compelling reasons to allow the City Council to package disparate items together.

First, a package may be the only way to get certain measures before voters. Sometimes legislators won't place a popular proposal before voters unless the bill can be sweetened with a goodie for the legislators.

Here's an example of this from earlier this summer. The California Legislature considered a deal to place on the ballot proposals for a nonpartisan redistricting commission and an easing of legislative term limits. Because of the state constitutional rule, those measures could not be packaged together in a single ballot measure, and the deal fell apart. In the end, the Legislature did not have the will to put two separate measures on the ballot (probably fearing that redistricting reform would pass but term limits would not). Voters should have had the opportunity to decide on the package. Perhaps they would be willing to extend term limits to get more competitive elections in California through redistricting reform.

Second, the single-subject rule assumes that voters are stupid or ignorant and would not see through attempts to marry a popular measure with an unpopular one. But opponents of such measures have every incentive to make this argument to voters. Indeed, the official ballot argument against Measure R reads in part: "Measure R doesn't say what it really does: lengthen City Council term limits. Politicians think you'll only approve an extension if it's hidden in 'ethics reforms.' "

Finally, the single-subject rule enmeshes the courts further in the political thicket. Courts are called on all the time to decide whether two measures really embrace the same or different subjects, and doing so injects a great deal of subjectivity into the process. In recent years, the California Supreme Court removed a measure from the ballot that joined redistricting reform with a change in the method for setting legislators' salaries. But it soon thereafter rejected a single-subject challenge to a measure that dealt with juvenile justice reform and issues related to gangs.

We should trust the voters to make these decisions. After all, we already trust voters in the city of Los Angeles to vote on voter-initiated measures containing more than one subject. The same rule should apply to measures proposed by the City Council.

That's not to say that voters should necessarily support Measure R. Some voters may decide that ethics reform is not worth the price of extending the terms of City Council members. The way the measure was rushed to the ballot, especially without input from the L.A. City Ethics Commission, makes me worry about some of the proposed reforms. But let's have the voters, not the courts, decide on whether this measure deserves to become law.

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