Joe Matthews reports today that the electronic petition signature of Mr. Michael Ni has been filed in San Mateo county, the first of its kind, (and on a marijuana initiative) setting up a legal battle on whether such a signature is a valid "affixation." If it is, Matthews says "efforts to reform California’s dysfunctional government could get an important boost."
Not too long ago our publisher asked if I’d consider writing something about the brewing issue of iPhone applications for California initiatives. I punted at the time. But Joe’s story today breathed some life into me. I disagree with the analysis that electronic signatures can help reform California in a positive way, and I want to spend a little effort here to parse this "iPhone" initiative distribution talk, because I think it is not legal, not a good idea, and will only create more dysfunction, because ultimately it will undermine and reduce the influence of initiative campaigns themselves. More on that near the end of this post.
First, I disagree with the underlying notion that the initiative system is the source of the so-called "dysfunction" of California government. The real dysfunction is the almost never ending dynastic control of the California Legislature by Democrats, and the new threat of what I have termed "permanent super-minority status" of the Republican party. At the risk of upsetting some FlashReport readers, the most recent example of this Democrat dysfunction was the rejection in the Assembly of State Senator Abel Maldonado’s appointment by the Governor as Lt. Governor. While every Republican in the Assembly, including Howard Jarvis Taxpayer’s Association 100%ers Joel Anderson and Diane Harkey voted for Maldonado (Chuck DeVore was "absent"), as did the only independent in the Assembly, only a handful of the Assembly’s 48 or so Democrat members stepped forward to give Maldo a 37-35 plurality, still not the 41 votes needed. As state GOP chief Ron Nehring said in his press statement, filling vacancies is definitely one of the ways you address "dysfunction," and while the Democrats claim to be the party of "tolerance" and "diversity," they did exactly the opposite in rejecting moderate Latino Maldonado. In my opinion, they are hardly the party of "tolerance," rather, they are the party of brute power, exercised by dedicated partisan liberals against the following standard: "what’s in it for me," and not "what’s in it for Californians."
The initiative system is not the source of dysfunction in California government. Rather, it is it’s savior. There are only three ways to balance against the permanent Democrat control of the California Legislature: the Governor; the courts; and the initiative system, and of these the most important for Republicans is the initiative system, unchanged, as it is. It is the initiative system that has given Californians a fairer tax system in spite of Democrat control with Proposition 13. It is the system of initiative that allowed Republicans to enact a death penalty law despite Jerry Brown’s Chief Justice, who would not enforce it, and who was removed from office. It is this same system that allowed California to protect traditional marriage despite Democrat control. And it’s legal underpinnings are all rolled-up into one very clear notion: the initiative system means "people power." This people power is at a minimum equal to that of the Legislature, and some courts have said it is even higher.
So, that established, let’s move on. Probing motives is a good thing to do in politics. In the case of Mr. Michael Ni, he may actually want to legalize marijuana, but what he really wants to do is sell his Silicon Valley petition signature technology to campaigns and become a millionaire, by reducing the cost of actual hand-signature gathering.
It is true that qualifying an initiative can be expensive. Under the current system, it can cost a couple million dollars to hire professional signature gatherers to conduct a gathering campaign. These campaigns take several months. In the process of the signature gathering campaign, citizens and the media have ample opportunity to read, review, discuss and debate the advantages and disadvantages. The finer legal points can be discussed and attacked. The economic implications can be subjected to analysis. And while deep pocketed groups like unions and businesses may have an advantage in the qualification process, "people power" is never excluded. Proposition 13, for example, was never favored by unions or the business community. Student activists are still able to muster signatures and pass tree-hugging green initiatives without much financial backing, and underfunded Tea Party activists will surely make themselves evident in California’s initiative process in future.
But what would a "viral" iPhone initiative campaign bring? The first thing it would potentially do is lessen public and media review time by greatly reducing the initiative qualification time-line. Eventually clever political consultants would learn how to manipulate the time-lines of the qualification process to bring a controversial initiative to qualification with as little chance to challenge it during the process as possible; a sort of "fait accompli," system. There would be less oversight, and less testing of ideas in the public marketplace.
In it’s favor, the electronic signature could be said to increase the number of initiatives by reducing their cost and allowing ideas that wouldn’t otherwise qualify to get on the ballot. In that sense, they might be "pro-people power." OK, let us take a look at one of those ideas, which was even cited in Matthew’s article. It is the recently failed effort of the Bay Area group "Reform California" to stage a qualification campaign of an initiative to establish a "Constitutional Convention" in California. The stated goal of the convention promoters? Remove the constitutional protection of the 2/3 vote requirement in the Legislature to raise taxes. Another such goal would be to actually reduce the initiative power of the people by manipulating when a statewide initiative could be on the ballot. These are awful ideas for Republicans concerned about Democrat dynastic control of the Legislature. Enacting these changes would be the equivalent of closing the Republican party’s doors in our state, forever.
A fair question to ask is exactly who is empowered by allowing iPhone electronic signatures? I have an iPhone and am into productivity technology. But Michael Ni delivered his signature to the San Mateo registrar "on a flash drive." So what is the epidemiology of iPhone and flash drive use in California? Well, I think it is safe to say that these devices are not evenly distributed among California’s population, whereas a hand signature presents no such disadvantage. For example, I doubt that the percentage of the general voting population in South Central Los Angeles as compared to the young Asian population in Silicon Valley have similar access to these devices. The economic differences for voters in access and education about these devices is stunning. The fact is, according to Nielsen, smartphone owners are predominantly male, 65% more likely than the average mobile phone user to be young (25 to 35) and two times as likely to make more than $100,000.
So, iPhone electronic signatures on initiatives put young, financially well-off men at an advantage in qualifying California’s initiatives. It is therefore little wonder that the first initiative to be signed by such a method and which will set the stage for a legal battle will by an initiative legalizing marijuana. I’m sorry, my young friends, you are not the demographic I think can fix California’s alleged "dysfunction." Please read Edmund Burke before you sign anything and join the Republican party, instead.
The coming legal battle will be interesting to watch, since the particular Registrar of Voters who must defend the case is said to be pro-electronic signature. In this sense, it appears the battle is a little set-up to lean towards Mr. Ni. I personally believe there is a strong case to be made in favor of hand signature just under California law, and there are some cases to support that. Electronic signatures open verification issues. But I also believe the demographic and economic disparities I have outlined herein are the strongest reasons to reject electronic signing. I will really stick my neck out here: I believe iPhone electronic signature at this time is unconstitutional under the 15th Amendment of the U.S. Constitution and the National Voting Rights Act of 1965 which requires that "any prerequisite to voting, or standard or procedure or practice" that disenfranchises African Americans is illegal. The Act has been found to outlaw "literacy tests." I also believe it can be found to outlaw procedures such as the electronic signature, which give young rich men who can afford to own and understand the technology to the exclusion of lower income groups who have been historically discriminated against, a huge step-up in California’s system, which would be the real dysfunction of this story.