Purpose and Scope

“The right of referendum preserves the opportunity by the governed to respond collectively to, and change, the actions of those who govern.” (Kuhs v. Super. Ct. (1988) 201 Cal.App.3d 966, 974.)

The origins of section 3753 can be traced to former Political Code section 4058 as enacted and amended at an extra session in 1911. In pertinent part, that section required a referendum petition be signed "by qualified electors of the county equal to ten percent of the entire vote cast therein for all candidates for Governor of the state at the last preceding general election at which a Governor was voted for." This statutory definition obviously does not include a gubernatorial primary.

In 1939 the Legislature passed “An act to establish an Elections Code, thereby consolidating and revising the law relating to elections....” (1939 Stats., ch. 26, at 49.) In setting out the requirements for a valid referendum petition, the new Elections Code eliminated the reference to a "general election" and adopted the language presently under review herein. It required the petition contain "at least 10 percent of the entire vote cast within the county for all candidates for Governor at the last gubernatorial election." (Sylva v. Board of Supervisors (1989) 208 Cal.App.3d 648, 652 citing Former sections 1652 and 3753.)

Referendum Petition Specified Requirements

The effective date of an ordinance must be suspended and the legislative body must reconsider the ordinance if a petition protesting the adoption of the ordinance is:

1. circulated by a proper person,
2. submitted to the elections official of the legislative body of the city during normal business hours within 30 days of the ordinance’s attestation, and
3. and is signed by not less than 10% of the voters of the city according to the county elections official’s last official report of registration to the Secretary of the State.

(Elec. Code Sec. 9237.)

Each section of the referendum petition shall contain:

1. the identifying number or title and
2. the text of the ordinance that is the subject of the referendum.

(Elec. Code Sec. 9238(b).)

The petition sections shall also be designed so that each signer shall personally affix all of the following:

1. his signature,
2. his printed name,
3. his residence address,
4. the name of his incorporated city.

(Elec. Code Sec. 9020(a)(incorporated by Sec. 9238(b)).)

In addition, each section shall have attached thereto the declaration of the person soliciting the signatures (i.e., the circulator). (Sec. 9238(c).) The declaration must certify under penalty of perjury, inter alia:

1. the circulator’s name,
2. the circulator’s residence address, and
3. the dates between which all the signatures to the petition were obtained.

(Elec. Code Sec. 104 (incorporated by Sec. 9022 and Sec.9238(c)).)

Such declarations are prima facie evidence that the signatures are genuine and that the persons signing are qualified voters. (Sec. 9022(d) (incorporated by Sec. 9238(c)).) Unless and until otherwise proven upon official investigation, it shall be presumed that the petition presented contains the signatures of the requisite number of qualified voters. (Id.)

Filing Deadlines

Elections Code section 3753 requires referendum petitions be filed prior to the effective date of the challenged ordinance:

“If a petition protesting against the adoption of an ordinance is presented to the board of supervisors prior to the effective date of the ordinance, the ordinance shall be suspended and the supervisors shall reconsider the ordinance. The petition shall be signed by voters of the county equal in number to at least 10 percent of the entire vote cast within the county for all candidates for Governor at the last gubernatorial election.” (Kuhs v. Super. Ct. (1988) 201 Cal.App.3d 966, 969-70.)

Elections Code section 3751 provides: “Except an ordinance granting a franchise, the following ordinances shall take effect immediately:

1. Those calling or otherwise relating to an election.
2. Those specifically required by law to take immediate effect.
3. Those fixing the amount of money to be raised by taxation or the rate of taxes to be levied.”
4. Those for the immediate preservation of the public peace, health, or safety. The ordinances referred to in this subdivision shall contain a declaration of the facts constituting the necessity and shall be passed by a four-fifths vote of the board of supervisors.”

(Kuhs, supra, 201 Cal.App.3d at 970.)

Difference Between Referendum and Initiative

“A referendum and an initiative do not have the same effect. A referendum suspends the effect of an ordinance until the issue is resolved by the voters at the next election. An initiative does not become effective until passed by the voters. Availability of an initiative does not remedy denial of the right to a referendum.” (Kuhs, supra, 201 Cal.App.3d at 971 citing Beck v. Piatt (1972) 24 Cal.App.3d 611, 617.)

In construing Elections Code section 3751 we are in a very real sense construing the scope of the right of referendum as it pertains to county measures; if the ordinance becomes effective on the 30th day then proponents of a referendum in reality have but 29 days in which to qualify their petition. Thus, we must be guided in our construction of Elections Code section 3751 by the general rule that referendum provisions are to be construed liberally in favor of the right of referendum. (Kuhs v. Super. Ct. (1988) 201 Cal.App.3d 966, 972-73 citing Geiger v. Board of Supervisors (1957) 48 Cal.2d 832, 839; see also Beck v. Piatt, supra, 24 Cal.App.3d at 616.)