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Hastings Law Journal

Abstract

In 1911, the California Constitution was amended to divide the state’s legislative power by reserving to the electorate the powers of initiative, referendum, and recall. Most of the thinking to date on popular sovereignty in California, and about the initiative power particularly, has focused on either a specific application of direct democracy, or on its broad practical effects on the state. No authority has attempted to define the fundamental nature of popular sovereignty in California, nor to craft a complete doctrinal solution for resolving challenges to direct democracy acts. Those tasks are the purpose of this Article. The Article considers two questions: First, how to classify the electorate’s powers in the California state government, and second, how to balance those powers against those of the other branches of the state government when they come into conflict. Answering these questions is important because the courts regularly face the difficult prospect of striking down an electorate act, which is necessarily supported by a majority of the voters. Doing so without the best possible rationale risks delegitimizing a decision against the electorate, and weakens the judiciary’s greatest power: its perceived impartiality. Yet no answer to either question can be found in the cases or commentary. To answer those questions, this Article defines the powers of the people and the electorate, proposes that the electorate be classified as a legislative branch when using its legislative powers, and that the existing separation of powers analysis be adapted to include the electorate. The courts have developed an analysis that applies to one recurring problem in this area: categorizing electorate acts as revisions or amendments to the California Constitution. But that is not the only type of problem that the electorate can create with its legislative power; indeed, the separation of powers problem created by interbranch conflict is both distinct and more serious. Lacking a means to account for the electorate’s power, courts adjudicating structural questions or conflicts between the electorate and the other branches of government have struggled to resolve those cases with the only available tool: the revision–amendment analysis. This Article proposes a solution to that problem.

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