Sacramento, CA—On February 24, 2014, the California Secretary of State announced that the signatures submitted on the referendum to repeal the Co-ed Bathroom Bill, AB 1266, fell short by 17,276. Some, however, have prematurely written the referendum’s obituary. Until the fate of AB 1266 is resolved, the Co-ed Bathroom Bill is not in effect. The following paragraphs explain the legal issues involved:
The proponent of a referendum has 21 days to begin the examination of the disqualified signatures. After examining the signatures alleged as invalid, the proponent can then file a lawsuit in order to have a court independently review the petitions. The challenged law will not go into effect while judicial review is pending.
Over a century ago when the voters were considering whether to add the process of referendum to the state’s Constitution, the ballot argument in support of the referendum stated that this power enables the people to veto laws enacted by the legislature. The word veto in the ballot argument is important. A veto applies only to a law that has not gone into effect. The question arises as to what happens to a bill while it is in the complicated process of challenge by referendum. The courts have addressed this inquiry. “[T]he legislative power of referendum reserved to the people in our Constitution does not countenance that a legislative act subject to referendum can be effective before the power of referendum can be exercised,” Midway Orchards v. County of Butte, citing County of San Mateo v. Bartole.
This may be frustrating for some. Several justices of the Supreme Court explained as follows: “[t]he referendum process. . . is necessarily a disruptive, undeferential procedure by which the people halt in their tracks the operation of duly enacted statutes. Nonetheless, the Constitution guarantees that the people’s voice shall be both heard and obeyed. It clearly mandates the stay to preserve the effect of the people’s will. Any attempt to circumvent such a stay…necessarily frustrates and defies the sovereign people,” Assembly of State of Cal. v. Deukmejian.