There may be more modern Supreme Court case law that could be used to argue against a strictly literal interpretation of Article II, sec. of the Constitution.

You could argue that a ballot initiative is not a "legislature", but in the case Citizens Against Rent Control/Coalition for Fair Housing v. City of Berkely, 454 U.S. 290 (1981), the opinion by the Chief Justice plainly states "It is irrelevant that the voters rather than a legislative body enacted [the initiative], because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation." This view is supported by a long line of cases interpreting power within state governments. In effect, in voting a ballot initiative the people themselves are meeting 'as a legislature' to enact law. After all, the states themselve have great leeway to set up their own legislatures, why couldn't they just make every single voter in the state a member of the legislature for just one vote (a vote on the ballot issue)?

I think this issue is much more uncertain than this article seems to suggest,, and I think ever court experts would be hard pressed to predict the outcome of a case on the merits with any certainty.

For the reasons that you and chris123987 (see his/her separate post) argue, I agree that the initiative ought to be ruled constitutional, even though I would vote against it were I a California resident.

Consider this: In how many states has a governor signed or vetoed the legislature's provision for the appointment of electors? My guess would be that it's every state whose governor has any sort of legislative veto (virtually all of them). Likewise, if tomorrow a state legislature passes a new such provision and the governor vetoes it, I think it would be a stretch to argue that the U.S. Constitution invalidates the veto.

The way Kendall conceives of a "legislature," the governor is no more part of it than is the populace. Even if the framers of the Constitution liked the exective veto and were suspicious of direct democracy, they didn't prohibit states from using initiatiatives and referenda.

The Constitution doesn't define what a state "legislature" is. I would argue that it's the body that has the power to enact laws. Depending on the state constitution, that might be a majority of an Assembly, a majority of a Senate, plus the governor; or a two-thirds majority of the Assembly and of the Senate; or a majority of the voters voting on a ballot initiative.

Your quote goes against your argument:

It is irrelevant that the voters rather than a legislative body enacted [the initiative], because the voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation.

The SC here separated "the voters" and "a legislative body." The Constitution does as well. "A legislature" in a republic is a group of people representing our interests. It is different from a direct democracy where the people rule en masse. Similarly, Art. V. supplies two ways to ratify: legislatures and conventions. The conventions are not some "special" sort of legislature, it is a separate measure. In fact, many feared direct democracy, and saw the wisdom of legislators, including small bodies thereof.

"The people" have various roles in the Constitution including the First Amendment separate from the government itself. They, e.g., have the right to petition. They aren't petitioning themself. They are petiting "the government," including the legislature. The most obvious evidence here is the 10A where "states" and "people" are separatedly listed.

You put a creative argument, but in context surely, it is a bit too clever by half. BTW, the process allows the people to vote on many ballot issues, not just one. An argument can be made this is a problem under Guarantee Clause ("republican form of gov't"), but that's much broader than pointing out that when "legislature" is specifically mentioned legislatures have to act.

It's not a good idea to prophesize and reasoning can be made to allow this measure but it has serious problems.*

-j

* Pre-17A, some states found a way around the "legislature" req. of appointing senators, but there was an important difference:

many states had improvised de facto direct election systems via party primaries and nonbinding popular votes (aka “the Oregon Plan”)

The legislature ["Oregon legislature"] set forth this policy. A decent argument can be made some versions of the plan were unconstitutional, but the 17A came before any serious effort succeeded to do so. In fact, it probably would be different if the CA legislature directly put this "one" issue to the vote here in some special plebscite and held that if the vote was positive, it would put forth the desired policy. It didn't.