california constitutional-law
Can a California ballot initiative prevent its own repeal except by an unrealistically large legislative majority?
<p><strong>Background:</strong> an upcoming ballot initiative in California, Proposition 22, contains as part of its text the condition that the law it brings into effect can only be amended by a 7/8 legislative majority. As <a href="https://www.bloomberg.com/news/articles/2020-07-07/uber-lyft-ballot-measure-opposed-by-labor-groups" rel="nofollow noreferrer">an article in Bloomberg</a> explains:</p>
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<p>The long-term implications of Proposition 22 are profound, advocates say, because of strict—and by their account, unprecedented—lock-in measures: If approved by voters, the measure could only be amended with a 7/8 majority of state legislators. “In practical terms, this means there will likely be enough votes to permanently prevent amendments,” reads the report. Any future amendments deemed inconsistent with the purpose of the proposition—meaning anything that challenges independent contractor status—will be prohibited, according to the researcher’s interpretation of the measure.</p>
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<p>This measure appears to make it unrealistic for this proposition to ever be modified or repealed, and I am wondering whether it is legal for a California law to <a href="https://en.wikipedia.org/wiki/Entrenched_clause" rel="nofollow noreferrer">entrench</a> itself in such a way. Specific related questions are:</p>
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<li><p>Can the proposition be repealed by a simple majority of California voters through a future ballot initiative?</p>
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<li><p>Can the proposition be repealed by a 2/3 legislative majority who would legislate its repeal through a change to the California state constitution? (Such changes can be made by a 2/3 majority, to my understanding.)</p>
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<li><p>If the answer to 2 is &quot;yes&quot;, doesn't that mean that the 7/8 majority restriction is legally meaningless and that the clause with that language should not have been allowed on the ballot by the California state official who is in charge of such things (the Secretary of State, I'm guessing)?</p>
</li>
<li><p>Is there anything special about the number 7/8? That is, can a future ballot initiative include a similar condition in which the number 7/8 is replaced by 99/100? Or by an absolute prohibition on the law it institutes ever being repealed by the legislature?</p>
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<li><p>Does the US Constitution or other US federal laws have anything of relevance to say about the validity of such self-entrenching legislation?</p>
</li>
</ol>

<p>Proposition 22 (2020) would create a law in California.  This is important, as ballot initiatives can also create amendments to the constitution in California, where super majority requirements have already been imposed and upheld, such as with <a href="https://en.wikipedia.org/wiki/1978_California_Proposition_13" rel="nofollow noreferrer">Proposition 13 (1978)</a>.  Now, thanks in part to the voter initiative system having been in place in some form since 1911, more than a century, the California legal code and constitution are rather complex.  As such I can't quite rule out the possibility there's something I'm overlooking in the following, but...</p>
<p>The constitution spells out <a href="http://www.leginfo.ca.gov/bil2lawx.html" rel="nofollow noreferrer">how the legislature can pass bills</a>, which includes overwriting or repealing old bills.  By default, simple majorities in both chambers suffices to pass a bill in the legislature, after which it goes to be signed by the Governor.  A few types of bills require additional or greater constraints.  The aforementioned Proposition 13 from 1978—a constitutional amendment rather than a law—imposes a number of 2/3 requirements on matters of real estate taxes, for example.   Some other types of bill are required to be put before the people for a vote.  Such a mandatory referendum is required for: constitutional amendments, bond measures, and amendments to previous voter initiatives.</p>
<p>As such, the constitution spells out that a mere majority in both chambers suffices to meet the Legislature's role in amending any law.  As the constitution trumps the laws enacted under it, Proposition 22 cannot override that.  As the law is a voter initiative, however, any such amendment to the law would have to be put before the people in a mandatory referendum.</p>
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<p>As for why this 7/8 requirement is employed, this seems to be a transparent attempt to grant California Republicans a source of leverage in the state Legislature, and essentially prevent the law from being changed unless the Republicans agree to it.</p>
<p>The CA legislature has veto proof supermajorities (2/3 or greater) for Democrats in both chambers.  The CA assembly is currently split 61/18 in favor of Democrats (with one vacancy), which is about 78% of occupied seats, or approximately 6/8. The CA Senate also has a veto-proof supermajority for Democrats, with 29/40, or 72.5% of seats, being Democrats.  The requirement of 7/8 is an 87.5% requirement, which is beyond what the Democrats in either chamber alone can produce (and would require multiple Republicans in either chamber).</p>
<p>Prior to modern day hyper-partisan politics, such super majority requirements were meant to signal a belief that the issue at hand was something that should require broad consensus to alter.  It wasn't meant to grant the minority party leverage, or to make something essentially require minority party consent. It was a non-partisan desire for broad consensus alone. The exact choice of 2/3 in Prop 13 mentioned above, rather than 60% or 70% or 53.17% is essentially arbitrary, but otherwise reflects the level of &quot;broad consensus&quot; that was deemed appropriate and acceptable for the issue at hand (real estate taxes, for prop 13). So for Prop 13 this requirement was just a &quot;this is a sensitive issue with major implications that shouldn't be subject to mere majority whim&quot;, but the modern day political climate changes the calculus heavily towards partisan goals.</p>
<p>And it's easy to express, at least. It's very easy to write down 2/3 and to understand it (2 out of 3!). So maybe there's some sort of psychological reason to use it, where people find it intrinsically more agreeable simply because of how nice &quot;2 out of 3&quot; is on a psychological, rather than practical, level.  The use of 7/8, rather than 80%, to surpass the Democratic supermajority in the Assembly, is probably based in part upon a similar psychological ploy.  Granted, &quot;8 out of 10&quot; doesn't seem that much harder to grasp than &quot;7 out of 8&quot;, but it's probably inobvious to most people that &quot;7 out of 8&quot; is in fact the larger and more difficult requirement, thus obfuscating a bit what is actually being demanded by the law.</p>
