FAQ - Voter Instruction Measure
Proposition 59 is a different type of ballot measure than a citizens initiative or a referendum, which have been far more prevalent in our recent history.
Q: Is Proposition 59 legally binding, or purely advisory?
Neither. Proposition 59 is an “instruction” measure that uses the word “shall” to direct California’s elected officials to take action. If your employer tells you that you “shall” do something, they cannot legally enforce that. However, if they choose to, your employer can fire you for not doing what you were told. Similarly, voters cannot sue elected officials who fail to comply with their instructions. However, they may choose to remove them from office. Here's how a delegate to California's constitutional drafting convention described voter instructions when representatives voted to include the right to instruct in our state constitution:
"The people have a right to instruct their representatives, and the representative has a right to refuse to obey those instructions. Both have rights. But if the representative cannot conscientiously obey those instructions, he should resign.”
Q: Is Proposition 59 an opinion poll?
Proposition 59 is an election. Unlike a public opinion poll, which can be skewed in its wording, has limited participants, and presents no opportunity for opposing viewpoints, an election provides a structured format for all citizens to speak collectively. That is the reason we do not elect or instruct our representatives via public opinion poll.
Q: What is the history of using Voter Instructions in the United States?
Instructions were a principal part of the American political system before Independence. Colonists instructed delegates to the Continental Congress to draft the Declaration of Independence, instructed the Framers at the Philadelphia Convention on how to draft our Constitution, and instructions prompted many of our amendments to the Constitution.
The wording of instructions from Boston to its representatives in 1764 illustrates the practice in Colonial America. ”We, the freeholders of the town, have delegated you the power of acting in our public concerns, in general as your prudence shall direct you, reserving to ourselves the constitutional right of expressing our minds and giving you such instructions upon important subjects as at any time we may judge proper.”
The use of instructions, also known as “enjoining” a representative, was specifically mentioned as a means of amending the Constitution by its Framers. For example, Alexander Hamilton explained to the New York ratifying convention that any changes desired in the Constitution, such as a change in the size of the House of Representatives, could be accomplished by instructions:
If the general voice of the people be for an increase [in the number of members of Congress], it undoubtedly must take place. They have it in their power to instruct their representatives; and the state legislatures, which appoint the senators, may enjoin it also upon them.”
Q: Has California Ever Used Voter Instructions?
California used voter instructions in an 1892 proposition placed on the ballot by the Legislature in support of the 17th Amendment (Direct Election of Senators). In 1911, the Legislature sought voter direction in which candidates it should appoint to the U.S. Senate through an instruction measure. In 1933, the Legislature sought instructions from voters in Propositions 9 and 10 as to how to best spend highway funds. In 1982, citizens qualified Proposition 12 through petitions an initiative which urged, but did not instruct the United States to propose a freeze in nuclear weapons to the Soviet Union. Legislators approved a measure for the ballot in 2007 to urge, but not instruct, an end to the Iraq war. Governor Schwarzenegger vetoed this bill.
Q: Does the US Constitution guarantee the right of voter instructions?
In proposing the Bill of Rights as our first ten amendments to the Constitution, Congress considered including a federal right of binding voter instructions. It chose not to because a majority of congressional members assumed non-binding instructions were protected under freedom of speech and petition and thought those would be adequate. The Framers widely expected elected officials would comply with instructions without the need to make them legally enforceable or subject non-complying legislators to immediate recall.
Q: Why did the Legislature place Prop 59 on the ballot?
In 2014 the CA Legislature acted in response to outreach from citizens through 55,000 petition signatures, 40,000 e-mails, 176,000 faxes and hundreds of personal visits to the Capital. Further, the Legislature saw the value of prodding Congress to act because the Legislature’s ability to craft laws to combat a corrupt campaign finance system has been hampered by disastrous US Supreme Court rulings like Citizens United and others. But Californians didn't vote on that measure, Prop 49, because the CA Supreme Court ordered it removed from the ballot.
In 2016 the CA Supreme Court ruled that Prop 49 was legitimate, but did not place it back on the ballot. thus requiring the citizens and legislators to repeat their actions of 2014. This time however, the CA Legislature was additionally motivated by the separation of powers issues the CA Supreme Court's unprecedented interference into legislative functions had raised.
Q: Will Voters Be Confused by “Clutter” of Prop 59 on their ballot?
Voters in Los Angeles, San Francisco, and Richmond, California have considered instruction measures very similar to Prop 59 with zero evidence of voter confusion or evidence that instruction measures distract voters from other issues on the ballot. Similarly, voters in Colorado, Montana, and dozens of cities across the country approved similar measures by margins of three-to-one.