Ballot Initiative Repeals for California

By Mike Dorf

I've been spending a few days in California (it's "fall break" at Cornell) and accordingly thought this a good time to suggest to the good people of the erstwhile Bear Republic (and my home in 1990-91) how they might improve their law.  Accordingly, two suggestions:

1) NOW is the time to repeal prop 13, the 1978 ballot initiative that is widely credited with substantially undermining primary and secondary public education in Califorina.  Prop 13 had two crucial elements:
a) a cap of 1% annual property tax;
b) a cap of 2% annual increase in assessed property value (except upon transfer), even when property values rise dramatically.

Getting rid of a) might not be feasible, but if ever there was a time to get rid of b), this is it.  The point of b) was to prevent people from being taxed out of their homes by real estate booms around them.  That was a legitimate goal but the actual measure went well beyond the goal, and worse, it created its own constituency for non-repeal: As time passed, homeowners increasingly favored b), because it worked to advantage them relative to their new neighbors.  But b) has very little salience now, given that the cap on assessed value is substantially higher than what people are actually paying--due to the housing bust.  So, ballot initiative writers, get to it!  (Yes, I realize it's too late for 2010, but the dynamic will likely remain for a few years, at least.)

2) NOW is also the time to repeal Prop 8.  There is a decent chance that the 9th Circuit will find no appellate standing in Perry v. Schwarzenegger.  If so, the case could well go to the SCOTUS on the standing issue.  This creates a roughly two-year window for California to moot the case, by repealing Prop 8 and making same-sex marriage legal again.  The reason to do so now is that the SCOTUS still can't be trusted on the merits--and as I've noted before, a pro-marriage ruling by SCOTUS could inspire backlash.  I now think it extremely unlikely that such backlash would include a federal constitutional amendment barring same-sex marriage nationwide, but it could well include electoral defeats of gay-friendly and generally progressive candidates in various battlegrounds.

California has a number of important statewide initiatives (e.g. this one) on its ballot this year, but these two should also be considered.  And yes, California, you're welcome.