The Calexit ballot measure is an amendment to, not revision of, the California Constitution

Here Yes California rebuts the idea that the part of our proposed proposition (“Proposition”) to repeal Article III, Section 1  (“Section”) of the California Constitution (“Constitution”), if passed, would be an impermissible revision to the Constitution.

We respectfully submit that California Supreme Court precedent makes clear that repeal of the Section would constitute an amendment to the Constitution, not a revision.

An analysis of repeal versus amendment requires both a quantitative and qualitative analysis of whether or not a Proposition “substantially” alters the “basic government framework” of the Constitution. Legislature v Eu, 54 Cal. 3d 492, 510 (1991). In making this analysis, a decision maker with standing must ensure that “all presumptions favor the validity of initiative measures and mere doubts as to validity are insufficient; such measures must be upheld unless their unconstitutionality clearly, positively, and unmistakably appears.” Id. at 501.

Given the single sentence proposed to change, presumably your request does not pertain to the quantitative analysis.  The “preamble” nature of the Section further suggests that the qualitative analysis indicates an amendment, not a revision.  Regardless, the standard applied in Eu with respect to qualitative analysis confirms that the Proposition seeks an amendment, not a revision.

The Court in Eu, reaffirming prior holdings, found that “prior decisions have made it clear that to find … a revision, it must necessarily or inevitably appear from the face of the challenged provision that the measure will substantially alter the basic governmental framework set forth in our Constitution.” Id. at 510 (emphases added) (rejecting “revision” challenge to Proposition 140, which set legislative term and budget limits, among other things) (citing Brosnahan v. Brown (1982) 32 Cal.3d 236, 261 [rejecting argument that Prop. 8 (see Cal. Const., art. I, § 28) involved improper constitutional revision]; Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 224-226 [nothing on face of Prop. 13 (see Cal. Const., art. XIII A) "necessarily and inevitably" would result in loss of home rule]; and Raven v.  Deukmejian 52 Cal.3d 336, 349 ["nothing on the face of the challenged measures [Prop. 115] 'necessarily or inevitably' compels" dire economic consequences predicted by petitioners in context of single-subject rule challenge]).

In the case of the Proposition, if voters pass it in its current form, no alteration of the “basic government framework” of the Constitution happens, much less a substantial and “necessary or imminent” one.  Notably, a leading treatise on the California Constitution describes the Section as the most “symbolic” update in the 1879 California Constitution when compared to the original 1849 Constitution. Gronking, Shanske & Salerno, The California State Constitution, p.21 (2016 2d Ed).  Nothing about the specific Section in the 1879 Constitution altered the relationship of California to the United States previously established in an 1850 Treaty.

Similarly, if the Proposition passes in its current form, no specific state or federal constitutional rights or laws change. This includes the state’s relationship to the United States.  As applied in courts today and any time soon, Federal law would continue to prevail on all matters over which it both supersedes and conflicts with state law. No substantive provisions of the Constitution change.

To the contrary of “imminent or necessary”, as it relates the subject matter of the Proposition on its face to delete the Section, any eventual substantial change in the government framework of California’s Constitution depends on future events faces high uncertainty.  For example, under the vision of YesCalifornia (see Bluebook available at www.yescalifornia.org), any substantial change in the governmental nature of the relationship between California and the United States would require a second and uncertain popular vote; agreement and a method for California’s government to then seek “consent of the states” to secede; actual consent of such other states under U.S. Constitutional law, and recognition under principles of international law.

Yet, California’s Supreme Court has carefully guarded against findings of “revisions” in cases where challenges against a voter proposition claim, with uncertainty and speculation, “substantial” change to the “basic Governmental framework” of the Constitution.  Eu at 509-510 (“the assertedly momentous consequences to our governmental scheme are largely speculative ones, dependent on a number of as yet unproved premises … uncertainty inhibits us from holding that a constitutional revision has occurred in this case”). 

So here. The Proposition, if it repeals the Section, changes nothing in the Constitution other than a transparently symbolic sentence.  All Constitutional rights and laws remain as current.  Any substantial change would require much further change that may or may not happen – events that are well beyond the face of the Proposition. Yet it is the face of the Proposition that sets the boundary of any analysis in of a “revision” versus “amendment” question. Eu at 510.  Hence, we are proposing nothing more than an amendment to the Constitution.