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Background: 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 an article in Bloomberg explains:

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.

This measure appears to make it unrealistic for this proposition to ever be modified or repealed, and I am wondering whether it is legal for a California law to entrench itself in such a way. Specific related questions are:

  1. Can the proposition be repealed by a simple majority of California voters through a future ballot initiative?

  2. Can the proposition be repealed by a 2/3 legislative majority who would legislate its repeal through a change to the California state constitution?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.)

  3. If the answer to 2 is "yes", 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)?

  4. 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 Or by an absolute prohibition on the law it institutes ever being repealed by the legislature?

  5. Does the US Constitution or other US federal laws have anything of relevance to say about the validity of such self-entrenching legislation?

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  • Related law.stackexchange.com/q/22728/344
    – Dale M
    Sep 25 '20 at 21:53
  • Well, ballot initiatives have certainly created such super majority requirements with amendments. The infamous Proposition 13 from 1978 is a notable example, instituting a number of 2/3 requirements on tax and real estate matters. Though in this case, the 2020 Prop 20 would be a state law, not an amendment. Sep 27 '20 at 6:22
  • Make that Prop 22, not prop 20. Still a law (statute), not an amendment. Sep 27 '20 at 7:14
  • Scale it up to 999,999/1 million majority to guarantee the law is unchangeable and becomes a permanent law. Are there any laws or state constitutional amendments in America that have permanent protection like that? I wonder if any laws like that that (or 7/8+) have passed but struck down in courts. Initiatives have to go through the State Attorney General's office to advise on legality and if it's likely to be struck down by courts. Do you know if or what the AG said about this initiative?
    – Kirk Hings
    Jul 2 at 19:06
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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 Proposition 13 (1978). 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...

The constitution spells out how the legislature can pass bills, 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.

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.


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.

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).

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 "broad consensus" 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 "this is a sensitive issue with major implications that shouldn't be subject to mere majority whim", but the modern day political climate changes the calculus heavily towards partisan goals.

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 "2 out of 3" 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, "8 out of 10" doesn't seem that much harder to grasp than "7 out of 8", but it's probably inobvious to most people that "7 out of 8" is in fact the larger and more difficult requirement, thus obfuscating a bit what is actually being demanded by the law.

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  • Thanks, I did not realize that some ballot initiatives would become laws and others constitutional amendments. This answer is helpful, but doesn’t help me understand what is it about the numbers 2/3 and 7/8 that makes such laws possible. Basically it sounds like your answer to my title question is “no” and the answers to my subquestions 1-4 are “yes”, “yes”, “not sure”, and “N/A (since the answer to 2 is “yes”). And since it sounds like the 7/8ths thing is unenforceable in practice, I don’t understand how neither the opponents of Proposition 22 nor its advocates find this worth pointing out. Sep 28 '20 at 0:07
  • ... In other words I’m still baffled about how such a Proposition is allowed to be put on the ballot with what seems like a legally nonsensical clause. (Perhaps the answer is that this happens all the time and is simply not regarded as the big deal that I think it is...) Sep 28 '20 at 0:08
  • @acuriousmind The imposition of super majority requirements is generally meant to signal a belief that the matter at hand is one that should require broad consensus on, rather than simple majority. Things like Prop 13 mentioned in my answer precede modern day hyper-partisan politics, and weren't really constructed with the aim to require the consent of the minority party, or to provide the minority party leverage via obstruction. It was really just a "we don't think this should change based on a majority opinion, and should require some greater consensus than that" thing. Sep 28 '20 at 7:38
  • The exact choice of 2/3 in Prop 13, rather than 60% or 70% or 53.17% is essentially arbitrary, but otherwise reflects the level of "broad consensus" that was deemed appropriate and acceptable. It's easy to express, at least; very easy to write down 2/3. So maybe there's some sort of psychological reason to use it, where people find it intrinsically more agreeable simply because of how nice "2/3" is on a psychological, rather than practical, level. Sep 28 '20 at 7:44
  • The use of 7/8 appears to be both an appeal to such psychological tricks, but is almost assuredly designed as a partisan ploy to grant the Republican party increased leverage through obstruction on this matter. The CA assembly is currently split 61/18 in favor of Democrats, which is about 78%; whereas 7/8 is 87.5%. The CA Senate also has a veto-proof supermajority for Democrats, with 29/40, or 72.5% of seats, being Democrats. Sep 28 '20 at 7:47

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