Are Legislative Findings in Voters FIRST Act Bills Sufficient?

In reviewing recent legislation that proposes changes to the California Voters FIRST Act, as enacted by the voters by Prop. 11 in 2008, the same legislative finding and declaration is made in each bill. It is a simplistic statement that raises the question whether this language meets the requirements of Prop. 11.

Proposition 11 enacted the Voters FIRST Act, an initiative measure approved by the electors at the November 4, 2008 statewide general election. It requires the Citizens Redistricting Commission to draw district lines for the election of members of the State Senate, Assembly, Congress, and the State Board of Equalization. 

Prop. 11 amended the California Constitution, as well as added numerous sections to the California Government Code. Section 4 of Prop. 11 added Chapter 3.2 (commencing with Section 8251) to Division 1 of Title 2 of the Government Code.

Of interest to this matter, Government Code Section 8251(c) provides:

(c) The Legislature may not amend this chapter unless all of the following are met: (1) By the same vote required for the adoption of the final set of maps, the commission recommends amendments to this chapter to carry out its purpose and intent. (2) The exact language of the amendments provided by the commission is enacted as a statute approved by a two-thirds vote of each house of the Legislature and signed by the Governor. (3) The bill containing the amendments provided by the commission is in print for 10 days before final passage by the Legislature. (4) The amendments further the purposes of this act. (5) The amendments may not be passed by the Legislature in a year ending in 0 or 1

As a result, Prop. 11 was a constitutional and statutory initiative enacted by the People and allows the Act’s statutory provisions contained in the Government Code to be amended by the Legislature. The Act provides that any provision of the Act may be amended by a 2/3 vote of the Legislature, so long as the remaining requirements are met.

Recall that Article II, Section 10 of the California Constitution provides in Subdivision (c)

The Legislature may amend or repeal a referendum statute. The Legislature may amend or repeal an initiative statute by another statute that becomes effective only when approved by the electors unless the initiative statute permits amendment or repeal without the electors’ approval.

This constitutional provision only allows an initiative that was adopted by the state’s voters to be amended by the Legislature (such as Prop. 11) if the initiative permits amendment without the electorate’s approval. Prop. 11 does allow amendment by the Legislature as described above, assuming the five specified requirements are met.

As a result, the Legislature may amend Prop. 11. So, when the Legislature desires to amend Prop. 11, it includes in a “plus section” (which can be seen at the end of a bill that proposes to amend the Voters FIRST Act) a legislative finding and declaration. The following is an example of what is contained in these Prop. 11 amendment bills:

The Legislature finds and declares that Section 1 of this bill furthers the purposes of the Voters FIRST Act within the meaning of paragraph (4) of subdivision (c) of Section 8251 of the Government Code.

The question to address is whether the language in the above example is sufficient or if there should be some explanation why the Legislature believes that Prop. 11’s stated purposes are being furthered by the proposed amendment and that the proposed amendment is consistent with Prop. 11.

What are those stated purposes? In Section 2 of the Act, the following language can be found:

SEC. 2. Findings and Purpose.

The People of the State of California hereby make the following findings and declare their purpose in enacting this act is as follows:

(a) Under current law, California legislators draw their own political districts. Allowing politicians to draw their own districts is a serious conflict of interest that harms voters. That is why 99 percent of incumbent politicians were reelected in the districts they had drawn for themselves in the recent elections.

(b) Politicians draw districts that serve their interests, not those of our communities. For example, cities such as Long Beach, San Jose and Fresno are divided into multiple oddly shaped districts to protect incumbent legislators. Voters in many communities have no political voice because they have been

Unfortunately, bills amending Prop. 11 generally contain a simple statement as set forth above and those statements do not in any way explain why the Legislature actually believes the proposed amendment “furthers the purposes” of the Voters FIRST Act. Instead, the bill merely states the legislative finding and declaration without any further justification or explanation provided.

So, as with other bills that require legislative findings and declarations, should the bills that propose amendments to Prop. 11 include reference to any of Prop. 11’s specified declarations or purposes? I believe they should to withstand possible judicial scrutiny.

This approach, providing a short explanation, is the approach often taken with urgency clauses and special statutes. If courts examine the urgency clause or special statute findings, there is at least a short sentence or paragraph that explains why the Legislature has determined a particular bill needs an urgency clause or why the bill qualifies as a special statute.

As another example, California’s AUMA (allowing the adult use of cannabis) initiative statute similarly allows legislative amendment if those amendments further the purposes of the AUMA. A recent bill amending the AUMA contains what could be an example for Prop. 11 amendment bills:

The Legislature finds and declares that this act furthers the purposes and intent of the Control, Regulate and Tax Adult Use of Marijuana Act (AUMA) by accomplishing all of the following:

(a) Preventing the illegal diversion of cannabis to other states by providing legal and regulated channels for multistate commercial cannabis activities.

(b) Reducing barriers to entry into the legal, regulated market by providing additional legal outlets for cannabis and cannabis products produced in California.

(c) Ensuring that cannabis and cannabis products produced in other states and sold in this state meet the same testing and packaging requirements required under AUMA.

So, perhaps the bills that propose to amend Prop. 11 should also provide some rationale for their proposed amendment(s) so that, if the legislation were challenged in litigation, courts would have a basis for understanding why the Legislature determined the bill made an amendment to Prop. 11 that furthered its purposes. As a result, the Legislature should consider adding some explanatory language to their simple statements in Prop. 11 – amendment bills going forward.