California gives voters a direct role in lawmaking. Through the initiative process, voters can enact statutes and constitutional amendments without the Legislature. Through the referendum process, voters can approve or reject laws the Legislature has already passed.
These tools have shaped California’s legal landscape on issues from property taxation to land use to civil rights. Property owners, developers, and businesses regularly encounter laws and regulations that originated through the initiative process rather than through conventional legislation. Understanding how these processes work, and their legal limits, matters in a range of legal and policy contexts.
Constitutional Foundation
The California Constitution, Article II, sections 8 through 11, establishes the initiative, referendum, and recall powers. Article II, Section 8 provides that the people reserve to themselves the powers of initiative and referendum. The Legislature may not amend or repeal an initiative statute without voter approval unless the initiative itself permits legislative amendment.
The Initiative Process
An initiative is a proposed law or constitutional amendment placed on the ballot through a petition signed by a specified percentage of registered voters.
Types of Initiatives
- Statutory initiative: Proposes a new California statute or amends an existing one. A statutory initiative that passes becomes part of California law but remains subject to preemption by federal law and must comply with the California and U.S. Constitutions.
- Constitutional initiative: Proposes an amendment to the California Constitution. A successful constitutional initiative amends the state Constitution directly. It is not subject to preemption by state statutes but must still comply with the U.S. Constitution.
Signature Requirements
For a statutory initiative, proponents must collect signatures equal to 5 percent of the votes cast for governor in the last gubernatorial election. A constitutional amendment requires 8 percent. California Constitution, Article II, Section 8(b). Signatures are gathered after the Attorney General prepares a title and summary of the proposed measure.
Timeline and Process
- Proponents draft and submit the proposed measure to the Attorney General.
- The Attorney General prepares a title and summary within 15 days. California Elections Code section 9002.
- Proponents gather signatures within 180 days of receiving the title and summary.
- County elections officials verify signatures. If sufficient, the Secretary of State certifies the initiative for the ballot.
- The initiative is placed on the next statewide general election ballot, or a special election if called for.
- A simple majority vote is required for passage, unless the initiative involves a bond measure or tax, which may require a supermajority.
The Referendum Process
A referendum is distinct from an initiative. Rather than enacting a new law, a referendum asks voters to approve or reject a law that the Legislature has already enacted.
California Constitution, Article II, Section 9 establishes the referendum power. Within 90 days of a statute’s enactment, opponents may circulate a referendum petition seeking to refer the law to the voters. If they collect signatures equal to 5 percent of the votes cast for governor in the last gubernatorial election, the statute is suspended and placed on the ballot for voter approval or rejection.
Not all statutes are subject to referendum. Statutes determined to be urgency statutes, statutes making appropriations, and several other categories are exempt from the referendum process. California Constitution, Article II, Section 9(a).
Local Initiatives and Referenda
California cities and counties also have initiative and referendum powers at the local level. Local initiatives can adopt ordinances, general plan amendments, zoning changes, and other measures. The signature requirements and procedures differ from the statewide process and are set by state law and local charters.
Land use ballot measures are a common application of local initiative power. Voters in a city or county can propose zoning restrictions, growth controls, or development standards. Property owners and developers may find that their projects are subject to voter-enacted land use measures with a different legal character than ordinary zoning ordinances.
Legal Limits on Initiatives
An initiative, however popular, cannot exceed constitutional limits. Courts review initiative statutes and constitutional amendments for compliance with the U.S. Constitution. Federal law preempts state initiatives that conflict with federal statutes. An initiative constitutional amendment that violates the U.S. Constitution is invalid.
Courts also apply California’s revision/amendment distinction. Under the California Constitution, an initiative may amend the state Constitution through the normal initiative process, but a fundamental revision of the Constitution requires action by a constitutional convention or a two-thirds vote of the Legislature followed by voter ratification. Raven v. Deukmejian, 52 Cal.3d 336 (1990), illustrates how courts apply this distinction to significant structural changes to the Constitution.
Property Rights and Initiative Measures
Property owners sometimes find their rights affected by voter-enacted measures. Measure D in Alameda County, which Kassouni Law litigated in the Lockaway Storage case, is an example of a local growth-control initiative that affected development rights.
Where an initiative measure imposes a regulatory restriction on property, constitutional property-rights analysis still applies. An initiative restriction does not automatically override the constitutional requirement of just compensation for a taking. Courts have addressed whether initiative-enacted land use restrictions can give rise to regulatory takings claims under Penn Central and related authorities.
Frequently Asked Questions
What is the difference between an initiative and a referendum in California?
An initiative is a measure proposed by citizens and placed on the ballot to enact or amend a law directly. A referendum is triggered after the Legislature has already passed a statute. Referendum proponents collect signatures to suspend the statute and refer it to voters for approval or rejection.
Can the Legislature change a law enacted by initiative?
Generally, no, without voter approval. A law enacted by initiative can only be amended or repealed by the voters themselves, unless the initiative statute expressly permits the Legislature to amend it. California Constitution, Article II, Section 10(c). Some initiatives include provisions allowing legislative amendment under specified conditions.
Can an initiative constitutional amendment be challenged in court?
Yes, on federal constitutional grounds. An amendment to the California Constitution must still comply with the U.S. Constitution. Federal preemption and federal constitutional limits apply to state constitutional amendments as well as statutes. Courts can and do invalidate initiative constitutional amendments that conflict with federal constitutional requirements.
