Qualifying for the Ballot During a Once-in-a-Lifetime Pandemic

By Stephen J. Kaufman & George M. Yin

As we begin another election cycle amid the ongoing COVID-19 pandemic, sponsors of initiatives and referendums are pushing forward to qualify a new wave of measures designed to enact legislative changes at the state and local levels. These two forms of "direct democracy" enable proponents to bypass the usual legislative process and go directly to the voters.

Last fall, we saw another form of direct democracy in full display during the ill-fated recall of Governor Gavin Newsom. Rather than seeking to remove the Governor through the regular election process scheduled to take place this year, proponents forced a vote to remove the Governor before the end of his current term.

The powers of initiative, referendum, and recall are vested in the voters of California by the State Constitution. In 1911, voters approved a series of constitutional amendments to give themselves the ability to adopt laws (initiative), reject laws adopted by the Legislature (referendum), and remove elected officials from office (recall) without relying on the customary legislative and electoral processes for doing so. (Cal. Const., art. II, §§ 8-19.)