Challenge to California’s Referendum Procedure Presented in Amicus Brief

According to a news source, an appellate lawyer in California has submitted an amicus brief to the Ninth Circuit Court of Appeals, claiming that the state’s ballot initiative process, adopted 99 years ago, was improperly voted into law. He has asked the court to certify the question to the California Supreme Court. This issue arose in a case involving the validity of Proposition 8, a voter-approved ballot measure that banned same-sex marriage. A federal district court ruled that Proposition 8 violates the U.S. Constitution.

If the process that led to the adoption of Proposition 8 is ultimately overturned,
it could call into question the validity of Proposition 65, which has
required manufacturers and retailers to warn consumers if their products
contain chemicals known to the state to cause cancer or reproductive harm.
The state has been considering in recent months how to effectively apply the
law to the food industry.

This is reportedly the first legal challenge ever mounted to California’s initiative process. The amicus brief apparently argues that the legislature enacted the initiative process as “Senate Amendment 22” in 1911, but it should instead have approved the measure as a “revision” to the state constitution, thus requiring a supermajority vote in the House and Senate as well as a constitutional convention. See Law.com, October 28, 2010.