Guest Editorial: Is the effort to break up California even legal? We better find out before it goes to voters

This editorial is from the Los Angeles Times:

If Proposition 9, a ballot measure that seeks to break California into three new states, is passed by voters in November, it would throw the entire state into upheaval and uncertainty for months, if not years, during which the battle over the state's fate would continue in the courts and in Congress.

Residents would have to live with the reality that one day they could wake up in a new political entity, where all the familiar laws, protections and public resources on which they relied had been dissolved. Businesses might reasonably choose to relocate to states not undergoing an existential crisis. Creditors would surely be wary of lending money to a state that might not exist in the immediate future. Years of fighting would ensue over how to split the state's shared assets.

Think of “Brexit,” the looming divorce from the European Union that has been roiling the United Kingdom - only much, much worse.

But a group of environmentalists argues that the state shouldn't have to go through all that turmoil because the measure should never have qualified for the ballot in the first place. The group filed a lawsuit asking the California Supreme Court to remove Proposition 9 on the grounds that a citizen initiative cannot be used to invalidate the state constitution.

The state's high court should waste no time taking up the issue. Ideally, the court would settle the matter before Aug. 13, the day that the November ballot goes to the printer. This measure is too momentous, and potentially destructive, to allow any questions about its constitutionality to linger.

Written and funded by Silicon Valley venture capitalist Tim Draper, Proposition 9 asks voters to start the process for splitting California into three states: “California” on the central west coast, “Southern California” from San Diego to Mono Lake, and “Northern California” from the Bay Area north and east. Under the proposal, the new states would take over the public assets within their boundaries and inherit equal shares of the current state's debts.

Draper says California is too big for its state government to adequately serve its nearly 40 million residents. But he hasn't yet backed up his assertion with data showing that smaller states such as Vermont (624,000 people) or Georgia (10 million) are better governed. He also claims, again without proof, that splitting the state would lead to lower taxes, higher-quality public education and better decisions by government. Those outcomes are possible, but without some proof that smaller governments invariably produce better results, it seems equally possible that the breakup will result in higher taxes, lower-quality public education and worse decisions by government.

In any case, if what opponents say is true, those arguments for dividing the state are irrelevant because the measure should never have been placed on the ballot. In an op-ed in the Los Angeles Times, UC Irvine law professor Richard L. Hasen explained that the state Supreme Court has long held that citizen initiatives may not change the state constitution in ways that substantially alter the structure of state government. Demolishing the state government would be considered a substantial alteration by any reasonable standard. Under those precedents, any serious revision requires a constitutional convention called by a supermajority of both houses of the Legislature.

Draper's first attempt at breaking up the state was his Six Californias proposal - a constitutional amendment that would have added new language allowing the division of the state. But that measure did not receive enough valid signatures to qualify for the 2016 ballot.

When Draper came back last year with his scaled-back, three-state version, it was a proposed statutory change, which required significantly fewer signatures to win a place on the ballot. Instead of changing the state constitution, he is now seeking to bypass it altogether and ask Congress to approve the new state boundaries. Opponents say that this isn't allowed under the law either - and that Draper's clever attempt to avoid the higher signature threshold renders the proposition invalid. Any measure that would in effect repeal the state constitution is by definition a constitutional amendment, they say.

What does Draper have to say to defend his proposal from this legal attack? We don't know. Neither he nor his campaign has responded to requests for comment. But if he wants to keep his measure on the ballot, he can explain it to the court.

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