Friday, September 13, 2013

Response to Anti-referendum Claims by Frank Schubert

September 13, 2013


TO:         Interested Parties

FROM:    Frank Schubert
                 Campaign Manager, Privacy For All Students

RE:           Erroneous Claim That A Referendum Rejecting The Co-  
                 Ed Bathroom Law Won't Work

It has come to my attention that a conservative activist has broadly disseminated an email claiming that the referendum to repeal AB 1266, the co-ed shower and bathroom law, won't work because the Legislature can "repeal" it or otherwise ignore it. Such a claim is patently false as a matter of law, and ignores the real-world effect that a successful referendum would have.

Contrary to the claim in the email, if a referendum is successful, the Legislature cannot "repeal" it. First off, there's nothing to repeal since the referendum itself rejects a law and wipes it from the books. I presume that what the gentleman is trying to say is that the Legislature could just reenact AB 1266 the next day, but that is false as well.

The California Supreme Court has addressed this question and ruled that the Legislature may only act to pass a subsequent statue if it is "essentially different" and is not enacted with an intent to evade the effect of the referendum. So the notion that the Legislature could reenact AB 1266, or even enact something similar, is patently false as a matter of law. For them to be able to do so would eviscerate the initiative and referendum process, a process the Supreme Court has called a precious right reserved to the people. To claim otherwise is not only a mischaracterization; it reflects an ignorance of the referendum process.

Beyond the legal issues surrounding a referendum, there are also the practical political issues to consider. Consider the environment in which this activist falsely asserts the Legislature would re-enact AB 1266. The 2014 elections would have just occurred. You'd have a Legislature that had experienced a law foisted on them by Equality California, a law that many of them didn't like and, a law that failed to generate the support of all Democrats in the first instance. The bill passed the Senate with no votes to spare, and was very close in the Assembly as well. At the same 2014 election that elected the new Legislature, the voters would have rejected the co-ed bathroom law, AB 1266, including by strong majorities in most of the legislative districts represented by these very legislators. The new Legislature would take their seats just a month afterwards. Does anyone really think that these legislators are going to ignore what their voters just told them and reenact the law anyway (which the Supreme Court has ruled they can't do in any event) when they didn't much like it to begin with? No, of course not. This is why there has never been a case in California that I know of where the Legislature immediately went around the people and reenacted a law that voters had just repealed. It couldn't stand as a matter of law, and it wouldn't ever happen as a matter of practical politics.

It's also important to point out that in the absence of the referendum, AB 1266 will take effect on January 1, 2014 and we'll have vulnerable school children losing their privacy in the most sensitive school facilities - showers, bathrooms and locker rooms - as members of the opposite sex demand their right to use the facilities previously protected as sex-segregated. The only way to prevent this law from taking effect in January is to collect the needed signatures to qualify the referendum. Once that occurs, the law is suspended and does not take effect until voters have their say.

In conclusion, the assertion that the Legislature could re-enact the law in question is false as a matter of law, and ignores the consistent and strong history of the referendum as a powerful tool to both repeal bad laws and prevent them from being enacted again. I strongly urge voters to join with the Privacy For All Students campaign to qualify the referendum for the 2014 ballot, suspending the law until voters can reject it.

Thank you for your consideration.