What a model “Calexit” initiative would look like

And why Yes California’s probably wouldn’t have made the ballot

Edit: this article’s model initiative became part of a real initiative! Check out: “What a Real ‘Calexit’ initiative looks like.”

Yes California’s independence initiative (“Calexit: The California Independence Plebiscite of 2019”) is now in its final form, having been posted for more than 35 days.

While I personally support the idea of California seeking independence (see “Why California should pack its bags…”), I’m not going to be supporting this initiative. It has a number of practical problems ranging from counterproductive to downright dangerous, and also exposes itself to legal challenges in ways that are completely unnecessary.

I tried to fix this

I want to be clear that this article isn’t just a rhetorical attempt to make the perfect the enemy of the good.

I drove from San Francisco to Fresno to share some of these ideas in person with Yes California’s acting President, Marcus Ruiz Evans, who, legally, as the initiative’s proponent, had the ability to fix at least some aspects of the initiative before it was cleared for circulation.

Marcus Ruiz Evans, acting President of Yes California

He was receptive (and generally great to talk to), but told me that I would need to talk to the group’s President, Louis Marinelli, who would then pass the ideas by the thirty-or-so people involved in creating the initiative. So I wrote up a proposed revised initiative to show to him, very similar to the one that appears at the bottom of this article.

Louis Marinelli, President of Yes California

However, when I eventually was able to talk to Mr. Marinelli by Facebook video chat (because he lives in Russia), he was, to put it mildly, not at all receptive. He basically said that it was completely out of his hands, and that if I thought I had a better idea, I should file my own initiative or take it up with the California National Party. And then he hung up.

Well, okay then.

At the end of this article, I present language that could be used to craft an initiative that would achieve the same goals while avoiding these practical and legal issues, and take advantage of some missed opportunities as well.

How Yes California’s initiative works

Yes California’s initiative does four things:

removes the section of the California Constitution that says California is an inseparable part of the U.S. and that the U.S. Constitution is the law of the land

Holds a referendum on independence in March 2019. If voter turnout is at least 50%, and at least 55% of those voting vote yes:

it “constitutes a Declaration of Independence” (that’s what it says)

the governor shall apply for U.N. membership for California

What Yes California is trying to accomplish

Yes California has been called a “secessionist” group, which I think in the minds of most Americans conjures up images of the Civil War. This isn’t it at all; in their literature and public statements (though, notably, not in the initiative itself), they’re very explicit that they only support Californian independence through peaceful, legal means. My conversations with Yes California officers completely support this.

Here’s the statement from the footer of their website:

Yes California is the nonviolent campaign to establish the country of California using any and all legal and constitutional means to do so. We advocate for peaceful secession from the United States by use of an independence referendum to establish a mandate, followed by a nationwide campaign to advocate in support of a constitutional exit from the Union.

Basically, the goal of the initiative is just to have a vote on independence, and then if it passes… figure it out from there.

What peaceful secession looks like

Peaceful secessions are rare but not unheard of; some modern examples include Singapore getting kicked out of Malaysia, and the separation of Czechoslovakia into Slovakia and the Czech republic.

Political scientist Robert A. Young has a great paper “How do Peaceful Secessions Happen?” that describes thirteen things that all peaceful secessions have in common. (Marcus Evans has read this paper, though I don’t think Louis Marinelli has.) For the purposes of this initiative, here are the important points:

the secessor state (California, in this case) declares its intent to withdraw

the predecessor state (the U.S.) accepts the principle of secession; negotiations follow

foreign powers play an important role

the secession is accomplished constitutionally

If you go outside the bounds of mutual consent achieved through negotiation and constitutionality, you have what is called a “contested secession,” which is a nice term for a civil war. This is a poor option when your predecessor state is the world’s largest military power.

The key insight I tried to share with Yes California is that in terms of getting to the next step (negotiations), declaring the intent to become an independent country (through negotiations) is every bit as good as declaring independence outright.

However legally, and in terms of the practical consequences, it’s much, much better.

Constitutes what?

For me, the showstopper for is this language from the initiative:

22004. The independence plebiscite shall constitute a Declaration of Independence from the United States of America…

What does it mean, exactly, to “constitute a Declaration of Independence”? The initiative doesn’t define it. In the context of the the United States, it seems to refer to the Declaration of Independence from Britain, which was of course followed by the Revolutionary War (not peaceful).

Based on Yes California invoking Article 11 of the United Nations Charter, their leader attending an international self-determination conference in Moscow, and the statements he made after opening a “people’s embassy” in Moscow, it looks like they’re aiming to invoke international law here. Basically the hope is to get other countries to formally recognize California as a country, and put pressure on the United States to let California go.

The problem is that this is a California statute, and in the context of U.S. law, without further clarification there are lots of different ways you could interpret its meaning.

How could this possibly go wrong? Here are three ways:

Deliberate misinterpretation

I don’t think anyone in a position of power is honestly going to think that this initiative’s Declaration of Independence would mean that California is going to fight a revolutionary war against the U.S. (though I guess people believe all sorts of things).

However, it’s not to hard to imagine the incoming presidential administration using this “Declaration of Independence” to suppress dissent. Basically, they could try to argue that California is in “rebellion” and anytime dissent is associated with violence in any way (e.g. someone breaks a window at a largely peaceful protest), the president could try to invoke sedition laws and/or send in the troops. I doubt this would hold up in court, but it wouldn’t be helpful, either.

De-facto independence

Let’s imagine that somehow, California, through some combination of international pressure, the military refusing to act, and federal incompetence, manages to wrest de-facto control over its own territory (or at least most of it) from the U.S., and gains formal recognition from a handful of countries, but, notably, not the United States.

This would actually a be a pretty awful outcome. Sure, California is the world’s 6th largest economy, but this depends on “trade” with the rest of the U.S., which would be absolutely ruined. The U.S. would argue that it (a) still owns federal lands and other federal property in California and (b) Californians still owe income tax, and would be constantly seizing Californian property within its (de-facto) jurisdiction. Basically the world’s worst tariffs.

Is Yes California’s international law angle just totally off-base? I said above that international powers play an important role in peaceful secessions. Yes, but if you look at Robert Young’s paper (Section ix), it’s less about international pressure forcing the hand of the predecessor state, and more about the potential new country making sure it’ll be recognized by other countries and have someone to trade with.

If the United States actively pursues the protectionist policies that the next president promised in his campaign, and California seems to have a chance of gaining independence legally through negotiation, Mexico, Canada and China (California’s top three international trading partners) would probably be pretty pleased at the potential of a no-nonsense free-trade relationship with California.

But international relationships aren’t a shortcut; if California merely gained de-facto independence, China might want to trade with us (if that didn’t mess up its ability to claim de-facto-independent Taiwan as part of China), but Canada and Mexico would probably stay the hell away. Russia, of course, would be no help at all; it doesn’t even have much to trade other than raw materials.

Nothing happens

A much more likely scenario is that not much at all happens; the Governor applies for U.N. membership as instructed, the U.N. says nope (because you can’t get membership without the consent of the Security Council, where the U.S. holds a permanent veto), and, because this initiative doesn’t include even a sketch of what to do next, people kind of shrug and say, well, some Californians want this, and some don’t, and let’s just move on.

I’m a bit puzzled by Yes California’s emphasis on international law. I mean, sure, you can use it to make a moral case, but in practical terms, international law just doesn’t buy you much when dealing with the United States.

An easy target for the courts

On to legal issues. Because of its vague language, I’m pretty sure this initiative opens itself up to a challenge under Texas v. White, the legal case that says that unilateral secession from the United States is illegal. I mean, this initiative is vaguely worded enough that it’s not not calling for unilateral secession.

For an example of just how eager courts can be to invoke Texas v. White, take a look at Kolhaas v. State, which used Texas v. White as part of the argument for striking down a proposed initiative calling for Alaska (!) to become an independent nation. Here’s the text of the initiative:

AN INITIATIVE REQUIRING THE STATE OF ALASKA TO VOTE ON OBTAINING ALASKAN INDEPENDENCE, IF LEGALLY POSSIBLE, OR TO SEEK CHANGES IN EXISTING LAW AND CONSTITUTIONAL PROVISIONS TO AUTHORIZE, AND THEN OBTAIN, INDEPENDENCE.

Seems harmless enough, no? The court’s argument was because secession is an unconstitutional end, a law can’t compel the state to hold a vote on it, and asking state officials to seek a (U.S.) Constitutional amendment would require amending Alaska’s constitution, which initiatives can’t do in Alaska.

Of course, in California, initiatives can amend the state constitution (though not “revise” it, as we’ll see below). It’s even admissible in some cases to have advisory votes on U.S. Constitutional amendments, as we did with Prop 59.

However, this avenue of legal attack could mostly be avoided by being very explicit that the goal is just to start the process of negotiation to set the terms of independence. Not to mention all the ways above that a unilateral Declaration of Independence could go very, very wrong.

It also wouldn’t hurt to mention an argument like Constitutional Loopholes for Independence somewhere in the initiative (basically that based on U.S. law and precedent, Congress could make California an independent country without the State of California technically ever leaving the union). In other words, seeking a completely constitutional outcome that wouldn’t require amending the U.S. Constitution.

Revision or amendment?

This isn’t even the legal issue that Yes California is concerned with at the moment. Right now they’re concerned with legal issues surrounding the first step of the initiative, removing this section from California’s Constitution:

The State of California is an inseparable part of the United States of America, and the United States Constitution is the supreme law of the land.

The reason their initiative does this is because California would look pretty silly declaring independence at the same time its constitution says it’s an inseparable part of the U.S. of A.

It might seem like in California, you can do pretty much anything by initiative. However, one thing California’s constitution makes clear is that you can’t “revise” the constitution by initiative; only the legislature can propose revisions.

And what’s the difference between revision and amendment? Well… California’s constitution doesn’t make that clear at all.

Let’s ask the courts! The most relevant court case is Raven v. Deukmejian, which, in 1990, threw out most of Prop 115 because it would have altered the relationship between state and federal courts.

Here’s the standard by which they judged whether an proposed initiative constitutional amendment might be straying into revision territory:

Qualitative effect-We have stated that, apart from a measure effecting widespread deletions, additions and amendments involving many constitutional articles, “even a relatively simple enactment may accomplish [52 Cal.3d 352] such far reaching changes in the nature of our basic governmental plan as to amount to a revision also …. [A]n enactment which purported to vest all judicial power in the Legislature would amount to a revision without regard either to the length or complexity of the measure or the number of existing articles or sections affected by such change.”

In other words, try to change the basic governmental plan, and your initiative may be riding into the danger zone.

Admittedly, it’s very, very rare for California’s Supreme Court to throw out initiatives on this basis. The Court considered and rejected an attempt to throw out Prop 8 (banning gay marriage) as a revision.

The previous initiative thrown out by the Court as a revision was in 1948, as a “quantitative revision,” that is, a ridiculously huge “amendment” that spammed the state Constitution with tons of unrelated changes. Nowadays, that’d be killed by the single subject rule (added to the state Constitution in 1948, probably in response to this spammy initiative).

Still, by delineating the fundamental relationship between California and the United States, this section does seem to involve the basic government plan. So Yes California is stuck arguing that this section is essentially symbolic, and that changing it doesn’t actually change the basic government plan, because that was never up to California’s constitution in the first place. They also note that California’s previous constitution, which was in effect from 1849–1879, seemed to do fine without such a clause.

This is much better than their previous argument, that this section was only added in 1972 (as a legislative constitutional revision, but never mind), so we can just remove it:

Yes California’s blog

Whereas in fact Prop 6 merely moved it (confusingly, from Section 3 of Article I):

from the 1972 Voter’s Guide

…where it had been since this version of the state Constitution was adopted in 1879:

I was able to share this with Marcus Evans (acting president of Yes California), but I could not convince Louis Marinelli (president) to take a look at this when I talked to him in early December. Apparently someone has, at least.

Anyhow, Yes California’s new argument is not bad. The case they cite is Legislature v. Eu, which was the legislature’s rather pathetic attempt to overturn an initiative adopted by the voters which implemented term limits and some other minor reforms relating to the legislature (basically, something that never should have been close). Legislature v. Eu includes this gem, which is in Yes California’s favor (at least in California’s court system; it doesn’t help with federal challenges like Texas v. White):

As with statutes adopted by the Legislature, 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.

However, you could almost entirely shut off this line of attack with an initiative that seeks to start the process of negotiating independence, rather than declaring it (which accomplishes the same thing). Then you only have to remove one word, “inseparable,” so that the section reads:

The State of California is a part of the United States of America, and the United States Constitution is the supreme law of the land.

A license to do something stupid

One practical problem is that simply removing this section without other clarifying language certainly looks like it must have some legal effect. California has a lot of people, and I guarantee at least one of them would take the repeal of this section as a license to flout federal law, stop paying federal income taxes, take over federal lands, or otherwise do something stupid. Probably not someone from Yes California, but it wouldn’t help their cause, or California’s.

Mr. Villaraigosa (?) goes to New York

Next, let’s take a look at the section that instructs our next governor to apply for U.N. membership for California if the referendum passes:

22005. Pursuant to the conditions in Section 22004 having been met, the Governor shall carry and shepherd an application for the newly-independent Republic of California to join the United Nations. The Governor shall have the authority to appoint an ambassador to whom he may delegate this duty.

While I get a kick out of the idea of the Governor doing this, I’m pretty sure this would be declared unconstitutional.

U.S. states can conduct foreign policy (and California certainly does, especially around climate change), but they can’t do it in a way that conflicts with national policy, because the federal government has ultimate sovereignty over international affairs.

For an example of a seemingly innocuous California law that nevertheless ran afoul of this rule, see American Insurance Association v. Garamendi, which struck down a California law that attempted to make public the records of California insurance companies that sold insurance policies in Europe doing the holocaust.

California’s government has a number of ways of flying under the radar here. A good example is the Under2 MOU, an international agreement on combating climate change. For starters, it’s only an agreement between cities and subnational units (e.g. U.S. states); countries can only “endorse” it:

Second, California is very clear that isn’t a binding agreement; essentially California’s leaders are just talking with leaders in other countries (which should be allowed under freedom of speech). Check out this phrase at the end of the Memorandum of Understanding’s text:

This MOU is neither a contract nor a treaty.

Well duh, obviously. It’s clearly a Memorandum of Understanding.

In any case, California’s governor applying for U.N. membership employs none of these tricks and would clearly violate U.S. foreign policy (unless the U.S. decides to let California go, which would be the whole point of opening negotiations).

If this section were ruled unconstitutional, would that strike down the entire initiative? Well, that’s…

A question of severability

“Severability” is the question of what happens to a law if only part of it is ruled unconstitutional. If a law is severable, that is, if its parts can still work without the whole, then those parts remain in effect.

One thing that’s pretty unusual about this initiative is that it doesn’t say anything about severability. If you page to the back of your November 2016 California Voter Information Guide, you’ll see that nearly every proposition has a section on severability. Here’s a pretty common piece of boilerplate:

If the provisions of this measure, or part thereof, are for any reason held to be invalid or unconstitutional, the remaining provisions shall not be affected, but shall remain in full force and effect and to this end the provisions of this measure are severable.

An initiative can still be considered severable without this clause (the case to look at is People v. Mirmirani), but it’s unusual for initiatives to take chances like this. Also, People v. Mirmirani doesn’t apply to federal courts, which may take a harsher view.

A question of standing

Another recent innovation is declaring that proponents (the people who submitted the initiative) have standing in court to defend their own initiative. Prop 55 (extending the income tax increase) had a proponent standing clause:

Notwithstanding any other provision of law, if the state, government agency, or any of its officials fail to defend the constitutionality of this measure, following its approval by the voters, any other government employer, the proponent, or in his or her absence, any citizen of this state shall have the authority to intervene in any court action challenging the constitutionality of this measure…

This is especially important because once an initiative becomes law, it’s up to the State of California to defend it against legal challenges, not the Proponent. This was how Prop 8 (the gay marriage ban) initially lost; it was struck down by a lower court, and the state government simply declined to continue the appeals process (see Hollingsworth v. Perry). Prop. 8’s proponents wanted to continue to defend it, but they were denied standing to do so.

This is doubly important to a two-part initiative like this. Yes California could find themselves in a position where their initiative goes on the ballot and passes in November 2018, but then the independence referendum (scheduled for March 2019) gets struck down in a lower court, and the state declines to continue the appeals process.

Also as a practical matter, even if Yes California were allowed to defend their own measure, they’d be in the position of simultaneously campaigning for a Yes vote in the referendum and defending in court whether the referendum should even happen.

Voting on whether to vote on something

Why even have a separate referendum? If Californians can constitutionally vote for independence (or to start the process of negotiating for independence), why not just vote on it in November and be done with it?

The problem is that in California, you’re not supposed to use the ballot for purely advisory measures; you have to pass a law or amend the constitution. So Yes California’s far-too-clever solution is to pass a law authorizing an advisory vote. As they say in their blog:

Again, we can’t put “Should California be an independent country?” directly onto the ballot as it would not create a law or amend the state constitution. So our campaign is currently finalizing the text of a ballot initiative that, if passed, would require the State of California (specifically the Secretary of State at the order of the Governor) to organize a special election (of sorts) in the spring of 2019.

I’m not sure this really solves anything. The issue is not just that initiatives have to do something, it’s about what the ballot is meant to be used for.

But wait, didn’t we just have vote on an advisory measure in the last election? Prop 59 asked California voters whether Citizens United v. FEC should be overturned, despite the State of California having little or no direct influence over the Supreme Court.

Yes, but it was tied up in court for two years (which the “Calexit” initiative can’t afford, since it has a definite timeline), and this advisory question was placed by the legislature, not by initiative.

In some sense, this isn’t an advisory vote (because it “constitutes a Declaration of Independence” and sends the Governor to the U.N.), but if these two things are ruled unconstitutional, it no longer even enables a law, much less enacts one.

The March Miracle

It’s not enough for the independence referendum to get a majority; under its own rules, it has to get 50% registered voter turnout and 55% of the vote:

22004. The independence plebiscite shall constitute a Declaration of Independence from the United States of America if both the following conditions are met: (1) At least 50% of registered voters participate. (2) At least 55% vote “Yes”.

From what I was able to glean from talking to Louis, this is apparently in reference to the Montegrin independence referendum of 2006, the theory being that by using these terms, the independence vote could gain greater international legitimacy (and that it was not Louis’ idea at all, but that of someone named Robert).

With all due respect to Robert, how likely is it that 50% of California voters would turn out in a March odd-year election? California doesn’t even usually have statewide elections in odd years. We do have statewide primary elections in the spring of even years, but turnout generally only breaks 50% in presidential primaries.

from the California Civic Engagement Project

A referendum on independence might play by different rules, but why take chances? (Or have a second vote at all?) Catalonia, which has a very strong independence movement, couldn’t get more than 42% voter turnout when it held an advisory independence referendum in 2014.

An important detail is that Yes California originally intended to schedule this vote for November 2020, a presidential general election, where you’d get 50% registered voter turnout pretty much automatically. Ah, the perils of incremental design.

That 55% doesn’t mean what you think it means

And why the 55% threshold? Californians already make major decisions by majority vote, 50% registered voter turnout or no. The only 55% threshold I know of in California is for passing local school bonds. (I love the idea of declaring independence through a series of local school bonds, despite not being about to figure out a coherent way this could work.)

The 55% threshold came, as I said above, from Montenegro’s independence referendum. The Montenegrin Prime Minister, Milo Đukanović, was pro-independence, so why would he ask for more stringent requirements than a majority?

Well, he didn’t. The 55% requirement (and the 50% turnout requirement) was handed down from the European Union via its envoy Miroslav Lajčák. Montenegro’s prime minister actually vowed to consider Montenegro independent from Serbia anyway as long as the vote passed by a bare majority.

Fortunately for peace and international law, the referendum met both standards, squeaking by with 55.5% of the vote.

So Yes California, in adopting this requirement, is not taking the role of the fiercely pro-independence Prime Minister, but of the E.U. envoy, handing down arbitrary requirements? That doesn’t feel right.

How to fix it

In summary, even if this initiative gets the requisite number of signatures, survives several possible legal challenges, and gets a Yes result at a referendum that almost appears specifically set up to fail, it still may inadvertently sow chaos rather than achieving the goal of lawfully and peacefully making California an independent country.

How to fix it?

What I proposed to Marcus Evans was to update Section 1 of Article III to state that California’s intent to become independent through negotiation:

The State of California is a part of the United States of America, and the United States Constitution is the supreme law of the land. It is the intent of the State of California to become an independent country through peaceful negotiation with the United States of America, culminating in a settlement mutually agreed upon, taking effect when adopted by the voters of the State of California as an amendment to its Constitution.

and then drop the separate independence referendum, because you wouldn’t need it.

Assuming this isn’t struck down as a purely advisory measure (which it shouldn’t be, because it amends the state Constitution), or that removing a single word (“inseparable”) counts as a qualitative constitutional revision (in which case you can’t do this by initiative at all), this should easily skirt all of the legal and practical issues I mentioned above.

However, you can do better than this. Ideally, an independence initiative would also:

make the most of features commonly found in California initiatives

provide clarity about the next steps California’s elected officials should take, without constraining them unnecessarily

get candidates and elected officials to talk about the issue of independence (even if they’re against it)

Here’s what I propose:

Findings and Declarations

Many, if not most initiatives start with a “Findings and Declarations” section that, while it not accomplishing much of anything legally, provides context for the initiative and explains why it should be passed.

If you’re writing an initiative on independence, this is your chance to lay out, Thomas Jefferson style, all the reasons California would be better off on its own.

I’m not going to do that here (this blog is more about the how than the why), but if Yes California were doing this, they could use the nine points on their website’s landing page.

A light touch

Next, remove just the word “inseparable” from Section 1 of Article III, as discussed above.

An article on independence

Rather than shoehorning the rest of this stuff into Article III, let’s make a separate article, “Independence.” The last Article is XXXV, so this would be Article XXXVI. (California’s Constitution actually has more than 35 articles because Prop 13 added Articles XIII A, XIII B, XIII C, and XIII D. It is a lucky constitution.)

A declaration of (intended) independence

Section 1 of our new article should read like this:

1. It is the intent of the People of the State of California that California become an independent, sovereign nation, through peaceful negotiations with the United States of America, culminating in a settlement mutually agreed upon.

This is only slightly different from my proposed language above, but in an important way. Rather than the State of California becoming independent (which could arguably require an amendment to the U.S. Constitution), “California” becomes independent. This would potentially allow you to use a strategy like Constitutional Loopholes for Independence.

Probably a good idea to mention this in the Findings and Declarations.

Make the governor the point person

2. The Governor shall lead negotiations with the United States regarding independence.

This is the closest thing to an actual, binding law in this proposed initiative (which establishes it as non-advisory). The state Constitution can definitely tell the Governor what he or she “shall” do, and it’s legal for California to negotiate with the United States.

Following the thirteen points in “How do Peaceful Secessions Happen?”, the governor would ideally assemble a small but broad-based negotiating team (say, the majority and minority leaders of each house of the legislature). I’m pretty sure anyone savvy enough to become Governor of California can figure this out; after all, you’d need a supermajority of each house of the legislature to put the agreement into effect (see below).

What if the Governor doesn’t take this responsibility seriously, going to Washington, having a private chat with the President, and then saying, “okay, I tried, oh well”? If California voters are serious about independence, we can always call a recall election and try again with a new governor.

Getting the United States to the table

Okay, and what if the Governor is serious about negotiations, but the President won’t engage?

Well, we can try (gentle) international pressure:

3. The Governor shall appeal to the international community, including the United Nations, to urge the United States to negotiate in good faith.

This even works in a bit about the United Nations, but unlike applying for membership, this is technically just talk (“appeal”), and should qualify as free speech.

Better yet, we can use the power we have within the system:

4. The People of the State of California hereby instruct their federally elected officials to coordinate with the Governor to support negotiations regarding independence.

Now, legally, a state constitution can’t actually bind federal elected officials in any way (hence “hereby instruct”), but this outlines a plausible strategy. 53 Representatives and 2 Senators should be enough to at least force a government shutdown if the United States stonewalls California.

The other good thing about this Section 4 is that it gets the issue into federal elections. Anyone running for Congress in California could now plausibly be expected to answer a question like: “if you got elected, and this initiative passed, would you coordinate with the Governor to support independence?”

I can think of other peaceful, legal ways that California could make it unpleasant for the United States to keep us in the country (e.g. boycotting military recruiting, emptying our jails into other states), but we shouldn’t escalate like that without a really good reason. For all we know, most Americans want to be rid of us.

Preparing California for independence

Is California even ready to operate as an independent country? Well… almost. Let’s do something about that:

5. The People of the State of California hereby instruct their state elected officials to prepare the State of California to function as an independent country, as far as is possible under the United States Constitution.

Unlike with federal officials, the state Constitution can bind state officials, though this language is way too broad to effectively do so.

However, like section 4 above, this gets the issue of independence into every state election (“if you got elected, and this initiative passed, what would you do to prepare California for independence?”)

The great thing about this is most of the things we’d do to prepare for independence are good-government reforms that would benefit California whether it leaves the Union or not. (See “Why California should pack its bags…” for details.)

The big vote comes later

Finally:

6. No settlement granting California independence shall take effect until passed by the voters as a revision to this Constitution, after being placed on the ballot by a supermajority of each house of the Legislature, as outlined in Sections 1 and 4 of Article XVIII of this Constitution.

This is just reality. Any change to California’s constitution making California an independent country is almost certainly going to be a qualitative revision, which would require a supermajority of each house of the legislature and a majority of California voters. (It’d probably be a quantitive revision too, since you’d have to delete every reference to the federal government and search-and-replace “State” with “Republic” and “Governor” with “President.”)

But stating this explicitly gives reassurance to voters who think independence is worth exploring but worry about it going terribly wrong. Unlike with an outright Declaration of Independence, nothing concrete is going to happen under this plan without first being approved by California’s voters. If you like the idea of independence, but dislike the terms, you can always vote them down.

One possible outcome of this process is for the United States to grant California enough autonomy and other concessions that Californians prefer to remain in the Union. If that’s the way it works out, so be it; that’d be way better than what we have now.

Severability and proponent standing

Finally, the initiative should include the boilerplate language mentioned above. No need to take chances with the court system.

It’s all yours

Below is the full text of the proposed initiative, minus the content of the Findings and Declarations.

If you have $3 million dollars, an army of signature-collecting volunteers, or a $2,000 filing fee and a strong desire to start a conversation on how California might best achieve independence, go for it.

Better yet, run this by some constitutional lawyers that hate the idea, and see if you can make it more legally bulletproof. (Disclaimer: I’m not a lawyer, just a software engineer, and this proposed initiative comes with no implied warranty of any kind.)

Medium doesn’t currently allow strikethrough text, so I’ve had to fake it with Unicode; apologies for the ugliness.

PROPOSED LAW

SECTION 1. Findings and Declarations

The people of the State of California find and declare all of the following:

(a) …

SECTION 2. Section 1 of Article III of the California Constitution is amended to read:

Sec 1. The State of California is an̶̶ i̶n̶s̶e̶p̶a̶r̶a̶b̶l̶e̶ part of the United States of America, and the United States Constitution is the supreme law of the land.

SECTION 3. Article XXXVI is added to the California Constitution as follows:

ARTICLE XXXVI INDEPENDENCE

1. It is the intent of the People of the State of California that California become an independent, sovereign nation, through peaceful negotiations with the United States of America, culminating in a settlement mutually agreed upon.

2. The Governor shall lead negotiations with the United States regarding independence.

3. The Governor shall appeal to the international community, including the United Nations, to urge the United States to negotiate in good faith.

4. The People of the State of California hereby instruct their federally elected officials to coordinate with the Governor to support negotiations regarding independence.

5. The People of the State of California hereby instruct their state elected officials to prepare the State of California to function as an independent country, as far as is possible under the United States Constitution.

6. No settlement granting California independence shall take effect until passed by the voters as a revision to this Constitution, after being placed on the ballot by a supermajority of each house of the Legislature, as outlined in Sections 1 and 4 of Article XVIII of this Constitution.

SECTION 4. Severability

If any provision of this measure, or any part thereof, is for any reason held to be invalid or unconstitutional, the remaining provisions shall not be affected, but shall remain in full force and effect, and to this end the provisions of this measure are severable.

SECTION 5. Proponent Standing

Notwithstanding any other provision of law, if the state, government agency, or any of its officials fail to defend the constitutionality of this measure, following its approval by the voters, any other government employer, the proponent, or in his or her absence, any citizen of this state shall have the authority to intervene in any court action challenging the constitutionality of this measure for the purpose of defending its constitutionality, whether such action is in trial court, on appeal, or on discretionary review by the Supreme Court of California or the Supreme Court of the United States. The fees and costs of defending the action shall be a charge on funds appropriated to the Attorney General, which shall be satisfied promptly.