“While you might say that this initiative is ‘clearly’ illegal (and I would agree), the notion of what is or is not ‘clearly’ illegal is not always so cut and dried,” Hiltachk wrote in an email. “If you give the (attorney general) discretion, there may be cases in which she refused to issue a title and summary asserting that the measure was ‘clearly’ illegal.”
“While in this case, it seems foolish and perhaps unwise to issue a title and summary, the better approach is the current approach, prohibiting discretion, so that ‘close cases’ are not inappropriately derailed by a recalcitrant AG.”
Vikram Amar, a law professor at UC Davis, echoed that view.
“This one drips of evil, so the instinct is to say ‘Well, there’s got to be a way to avoid wasting everybody’s time,’ ” he said. “But in the law we often have limitations that are built not for the easy cases but because we are worried about the hard cases.”
He said California law “generally favors judges making these decisions about what’s legal (or) not rather than elected political officials like the attorney general.”
“I could see a reason for wanting to kill it right now… I don’t want to go to a BART station and have some idiot with a clipboard put this in front of me and say, ‘Hey, do you want to sign this to put it on the ballot?’ But that may be something we have to just deal with.”
Even outraged activists aren’t focusing on Harris, instead turning their attention to McLaughlin’s standing and California’s initiative filing fee.
Originally designed to cover the cost of analyzing and verifying a petition, the filing fee has not increased since 1943, with several attempts failing in the state Capitol.
The growing number of proposed initiatives – from 47 in the 1960s to nearly 650 in the 2000s – prompted lawmakers to revisit the issue in recent years. They contended that raising the fee would help defray the average $8,000 in administrative costs for state officials to prepare the title and summary for each proposal. It could also dissuade people from pitching multiple variations of a plan, or from turning in what would generally be viewed as a frivolous proposal.
Kim Alexander, an expert on ballot measures, said she believes raising the filing fee is a good idea. Alexander said while she generally opposes changes that make the initiative process more restrictive, those serious about advancing a successful measure are going to need considerable resources.
“Increasing the fee, even to $500 or $1,000, would help ensure that those who put initiatives into circulation are sincere in their efforts,” said Alexander, president and founder of the California Voter Foundation. “I don’t think the fee should cover the costs, but it should provide more of a disincentive for people to submit initiatives for which they have no serious intention of attempting to qualify, which seems to happen a lot if you follow initiatives in circulation that fail.”
The most recent legislation, in 2011, would have raised the fee to $2,000. The language was stripped from the measure and it became a vehicle for requiring that all initiatives appear only on general election ballots.
Before that, then-Gov. Arnold Schwarzenegger vetoed a pair of similar bills by Democrat Lori Saldaña in 2009 and 2010, writing he “cannot support increasing the fee ten-fold,” and adding that “while well-funded special interest groups would have no problem paying the sharply increased fee, it will make it more difficult for citizen groups to qualify an initiative.”
Jennifer Fearing, the president of Fearless Advocacy and a veteran of lower-wattage campaigns, said she isn’t sure “there’s a price that stops crazy.”
“It’s important to preserve access to direct democracy even if some jerks can get over the first and lowest hurdle on occasion,” she said.
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