Lawsuit over Constitutional issue may halt three-state vote

A proposal to split California into three states qualified for the November ballot last month, but it might not go before the voters after all.

Opponents led by the Planning and Conservation League filed a lawsuit Monday in the state Supreme Court, saying, if carried out, Proposition 9, drafted as a mere change in state laws, would actually “revise” the California Constitution — in fact, abolish it — something that can’t be done in a ballot initiative.

On Wednesday, the court told supporters of Prop. 9 to file a response by Friday, an indication the justices may decide at their weekly conference July 18 whether to remove the measure from the ballot.

“We are asking the court to protect the integrity of both the initiative process and our state Constitution,” said Carlyle Hall, a lawyer for the measure’s opponents.

Tim Draper, the Bay Area billionaire and venture capitalist who sponsored Prop. 9, declined to

comment on the suit. He has argued that California, with 120 legislators representing 39 million people, is too large to be a true democracy, and that a breakup offers “a chance for three fresh approaches to government.”

The initiative would create three new states: Southern California, running from San Diego and Orange County north past Fresno to Madera County; California, from Los Angeles along the coast to Monterey; and Northern California, covering all areas from Santa Cruz northward to the Oregon border.

If successful, it would require the currently composed Legislature to apportion state funds and facilities among the three states, then decide whether to approve their creation and submit the plan to Congress for final passage.

Draper proposed in 2014 to divide California into six states, but was unable to collect the 585,000-plus signatures required for an initiative to amend the state Constitution. This time, he proposed a breakup by rewriting state laws rather than changing the Constitution, and met the lower signature threshold, 365,880, by submitting more than 402,000 valid signatures.

The lawsuit, however, said Prop. 9 would go far beyond the powers of the initiative process, as either a change in state law or an amendment to the Constitution. The measure would require each of the new states to adopt its own constitution, the suit said, throwing in limbo current state constitutional protections for privacy and civil rights along with structural details such as the University of California’s governing Board of Regents.

The initiative is, at least, a state constitutional “revision,” the suit contended. A revision can go before the voters only if approved by two-thirds of each house of the Legislature, and otherwise must be barred from the ballot.

Richard Hasen, a UC Irvine law professor and election law scholar, also contended in a recent opinion column that Prop. 9 was invalid.

“The line between revision and amendment can be murky in some cases, but it is not murky here,” Hasen said.

He cited the state Supreme Court’s 1990 ruling that declared part of a voter-approved initiative to be a constitutional revision and struck it down, while leaving the rest of the measure intact. The provision would have barred California courts from interpreting criminal defendants’ rights more broadly than the U.S. Supreme Court. The state justices said it would have required “far-reaching changes in the nature of our basic government plan.”

The current Prop. 9, the lawsuit contended, “would not simply ‘revise,’ but would abolish the existing state Constitution and abrogate the existing State of California and its laws.”