By Stephen J. Kaufman & George M. Yin
As we begin another election cycle amid the ongoing COVID-19 pandemic, sponsors of initiatives and referendums are pushing forward to qualify a new wave of measures designed to enact legislative changes at the state and local levels. These two forms of "direct democracy" enable proponents to bypass the usual legislative process and go directly to the voters.
Last fall, we saw another form of direct democracy in full display during the ill-fated recall of Governor Gavin Newsom. Rather than seeking to remove the Governor through the regular election process scheduled to take place this year, proponents forced a vote to remove the Governor before the end of his current term.
The powers of initiative, referendum, and recall are vested in the voters of California by the State Constitution. In 1911, voters approved a series of constitutional amendments to give themselves the ability to adopt laws (initiative), reject laws adopted by the Legislature (referendum), and remove elected officials from office (recall) without relying on the customary legislative and electoral processes for doing so. (Cal. Const., art. II, §§ 8-19.)
In order to qualify for the ballot, proponents of initiatives, referendums, and recalls must circulate petitions to obtain a specified number of signatures from registered voters. These signature requirements have become a major obstacle for initiative and recall proponents during the COVID-19 pandemic, leading to a series of court cases extending the statutory deadlines for gathering signatures. Those court rulings reflect the sacred status given to these constitutional powers and provide insight on how courts may respond to continuing pandemic restrictions or to future emergency conditions.
Qualifying for the Ballot
Before circulating an initiative petition, initiative proponents must first submit their initiative text and a request for an impartial title and summary of the initiative to the state Attorney General. (Elec. Code, § 9001.) Once the Attorney General issues a title and summary for the initiative, the initiative proponents may begin circulating their petition, containing the title and summary and the text of the initiative,
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for signatures. (§§ 9004, 9014.) Currently, the minimum number of qualifying signatures for a statutory amendment is 623,212, which is 5% of the total number of votes cast in the November 2018 gubernatorial election. (Cal. Const., art. II, § 8, subd. (b).) The minimum number of qualifying signatures for a constitutional amendment is 997,139, which is 8% of all votes cast in November 2018. (Ibid.)
Since some signatures inevitably will be rejected for being invalid during the signature review process, initiative proponents typically plan to collect more than the minimum number of required signatures, often collecting as much as 30% more than the required number of signatures. California law provides that initiative proponents are required to turn in the applicable number of signatures within 180 days of the date the Attorney General issues title and summary. (Elec. Code, § 9014, subd. (b).) The law does not expressly provide for extensions of time. (§§ 9014-9015.)
Under a state law enacted in 2011, statewide...
