Two propositions appear on the ballot this November to address the death
penalty in California. Prop 62 seeks to repeal the death penalty and replace it
with life in prison, applying retroactively to all death penalty sentences. Prop 66
seeks to modify death penalty procedure by limiting successive appeals,
increasing the pool of attorneys available to take appeals, and exempting prison
officials from certain regulations pertaining to execution methods .
There is much to consider in these propositions and compelling arguments for
both sides. California has sentenced more than nine hundred criminals to death
since the reinstatement of the death penalty in 1978, yet only thirteen have been
executed. The last execution carried out in the state was more than ten years ago,
just before a federal judge halted all executions and required California to revise
its lethal injection procedure, which still has not happened. Some folks want to
convert all death sentences to life imprisonment and save the state “$150 million
annually within a few years,” other folks want to clear out the backlog and enter
into an “unknown fiscal impact” on the state (fiscal impacts on both
propositions are stated in the official CA voter guide). While this was originally
meant to be an article in support of Prop 62, Jackson Browne—2004 Rock and
Roll Hall of Fame inductee and California native—was unfortunately unable to
get back with me for an interview before production deadline, so we are going to
swing this another way.
These propositions are what the Golden State calls “incompatible propositions.”
What this means, quite obviously, is that they can’t both be enacted into law.
However, there are some technical factors that must be understood to see how
this all works. Article Ten of the California Constitution provides that a ballot
initiative requires a simple majority to pass—easy enough. But when you have
incompatible propositions and both pass, the one that receives the highest
number of “yes” votes between the two will be the proposition enacted into law.
Seems fair, right? Well, not to me.
I look at it this way: one initiative seeks to prohibit a currently legal practice, the
other seeks to modify the practice. If more Californians vote ‘yes’ than vote ‘no’
to prohibit the practice, shouldn’t the question of modifying the practice be
dismissed entirely? A sort of hierarchal ballot, if you will?
You may say absolutely not. Ballot initiatives are the clearest form of direct
democracy, and if both have reached the ballot, both should have their fair shot.
But to the naysayers I say that this sort of conflicting bureaucratic measure
against a clearcut prohibitive measure unfairly tilts the scale against the clearcut
Imagine that the voting population consists of one hundred voters. Sixty support
the clearcut measure, forty support the bureaucratic measure. Few if any of the
voters are aware of the incompatible proposition rule (it is certainly not spelled
out on the ballot). Forty out of forty will be adamantly opposed to the
prohibitive measure because they want to mend, not end. But of the sixty in
support of the clearcut measure, some may also vote in support of the
bureaucratic measure on the premise that, if their preferred measure does not
pass, some reform is better than none at all.
And this is precisely what many argue the Prop 66 movement set out to capitalize
on. Very few Californians would argue that the capital punishment system in
California is a wellfunctioning machine. But most Californians do not see eye to
eye on whether we should maintain eye for an eye. I contend that the
bureaucratic underdog known as Prop 66 exploits these selfevident truths and
the ignorance of the voting populace to encourage Prop 62 voters to also vote yes
on Prop 66. This sort of practice is manipulative of voters’ true intent.
In this case, we have a straightforward situation of repeal versus modify, which
makes an argument for a hierarchal ballot pretty easy. But not all incompatible
propositions are so straightforward—just consider the two local measures offering
different means of providing for a Chargers stadium. They want the same
outcome, just by paving different paths. So what is the catchall solution to
incompatible propositions? I say the answer is as simple as an extra bubble on the
ballot. We’ve got Yes, we’ve got No, let’s add: Yes if the other is a nogo.