Desperate Measures 347



In Alice in Wonderland, Lewis Carroll used the phrase “curiouser and curiouser” to describe Alice’s amazement as her body grew so big she imagined having to mail her shoes to herself. “If I had a world of my own, everything would be nonsense,” she says. “Nothing would be what it is, because everything would be what it isn’t. And contrary wise, what is, it wouldn’t be. And what it wouldn’t be, it would.”

Some of the ballot measure proposals submitted to attorney general Kamala Harris in anticipation of the November 2016 election could be described as “curiouser and curiouser.” Or—to borrow a cinematic phrase—“dumb and dumber.” These proposed measures (which do not earn a place on the ballot until some 366,000 voter signatures are obtained and any pre-election legal challenges are resolved) seem to have been filed as mere political, social, or even satirical statements, rather than as serious efforts to alter public policy. These initiative developments beg the question as to how far our rights of free speech and petition extend, and whether some kind of reasonable limits can be placed on the scope of initiatives submitted to the state.

Briefly discussed below are three of the most notable proposed measures: one that shocks the conscience, and two filed in reaction to it. Under our statewide initiative system, in place since 1911, anyone with $200 (an amount the Legislature is considering increasing to $8,000) can submit a proposal to the state, setting into motion a chain of events that involves the legislative and executive branches of government—and often the judicial branch, as well. With a warning that these proposals (especially the first one) are not for the faint of heart, here are some of the most notable resolutions to emerge this election cycle:

The “Sodomite Suppression Act”

As attorney general Harris rightfully asserted, this “patently unconstitutional, utterly reprehensible” measure would “legalize discrimination and vigilantism,” and “has no place in a civil society.” It called for the death of “any person who willingly touches another person of the same gender for purposes of sexual gratification.”

The measure stated that, “Seeing that it is better that offenders should die rather than that all of us should be killed by God’s just wrath against us for the folly of tolerating wickedness in our midst, the People of California wisely command, in the fear of God, that any person who willingly touches another person of the same gender for purposes of sexual gratification be put to death by bullets to the head or by any other convenient method.”

The proposal also declared that individuals who distribute “sodomistic” propaganda “shall be fined $1 million per occurrence, and/or imprisoned up to 10 years, and/or expelled from the boundaries of the state of California for up to life.”

The proponent—now-vilified attorney Matt McLaughlin—has apparently abandoned his misguided effort after the attorney general challenged it in court. Shame on McLaughlin, who discredits himself, attorneys, and the state by his hateful proposal. And kudos to our attorney general and our courts for relegating this unconstitutional measure to the political trash heap.

The “Intolerant Jackass Act”

In response to McLaughlin’s proposed measure, a Southern California Ph.D. named Charlotte Laws submitted a proposal that “any person who brings forward a ballot measure that suggests the killing of gays or lesbians” be punished by having to donate $5,000 to a “pro-gay” or “pro-lesbian” organization and undergo three days of “sensitivity training” each month for a year. The attorney general has officially titled the measure “Ballot Measures. Sexual Orientation Prejudice,” with no mention of intolerant jackasses.

The “Shellfish Suppression Act”

In another effort to mock McLaughlin and his proposal, Joe Decker of San Jose submitted a measure that bans shellfish. Claiming that they are a “monstrous evil that Almighty God … commands us … to suppress,” this proposed law would make selling or consuming shellfish a felony, punishable by a $666,000 fine and/or 6 years, 6 months and 6 days in prison. Decker should steer clear of Fisherman’s Wharf, as he might not be very popular there.

Presumably, these measures will not make it to the ballot. But the fact that the state has to deal with them—and expend significant resources doing so—raises questions as to what might be done to encourage legitimate measures and discourage genocidal and farcical ones.

Brad Hertz is an attorney and partner at the Sutton Law Firm, which specializes in political and election law in the Bay Area and throughout the state.

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