I'm forwarding another response to your thoughts on whether the redistricting initiative should stay on the ballot from Jim Sweeney, former Chief Counsel for the CA Secretary of State......I hope this stimulates the debate!
ÒCome on, Rick, you cannot be serious! Surely, you know that the reapportionment initiative and its preparation will ultimately be found to satisfy the "substantial compliance" doctrine, and the voters will have their opportunity to decide whether the initiative will succeed. Let's separate the spin and political-flakking from sound legal analysis under California elections law.
At its core, the question of "substantial compliance" depends upon whether the electors were misled or critical information was withheld at the time they signed the petition section. Mere technical errors related to the circulation of petitions have consistently been found to "substantially comply" with the Elections Code requirements applicable to the right of initiative. Such non-substantive defects have consistently been found to fall well beyond the category of misleading electors, circulating incomplete petitions, or withholding information electors should have been provided. Your conclusion that, based upon the Court of Appeal's decision in Mervyn's v. Reyes, 69 Cal. App. 4th 93, 104 (1998), "the courts would well hold the initiative be disqualified" is misguided and certainly not supported by any of the facts related to the current reapportionment initiative.
The sole question with regard to the reapportionment initiative is whether the proponents have "substantially complied" with the requirements pertaining to preparation of the ballot title and summary by the Attorney General of California. The summary prepared by the Attorney General must represent a true and impartial statement of the purpose of the measure. See Cal. Gov. Code ¤¤ 9002, 9051. From even a cursory parsing of the Title and Summary prepared by the Attorney General, it is readily apparent that it does indeed accurately and impartially represent the purpose of the measure circulated with the petition sections. To be sure, one draft of the initiative was apparently submitted to the Attorney General for preparation of the title and summary and a slightly different draft containing virtually identical language-with only a handful of minor changes but with the same substance and effect-was included with the petition sections circulated to the electors. !
But, despite these minor discrepancies, the ballot title and summary that appeared on the petition sections themselves nevertheless accurately stated the purposes of the initiative measure. The electors who signed the petitions were fully and accurately informed as to initiative measure's purpose. This is quite a different matter from the facts underlying cases you have cited-including notably Mervyn's-in which the electors were provided false, misleading, confusing, or incomplete information. For example, in Mervyn's, "the key element of the initiative" (i.e., approximately 17 pages of the proposed general plan) were not attached to the initiative, meaning that the electors in the Mervyn's case were not advised as to which laws the proponents were proposing to change. Mervyn's, 69 Cal. App. 4th at 104. Here, not only did the electors have a chance to review an accurate title and summary pertaining to the proposed reapportionment initiative, they also were provided a!
copy of the complete initiative measure that the proponents a!
re propo
sing at the time they signed the petition section.
While the doctrine of substantial compliance cannot save an initiative that misinforms the voters, or fails to include necessary information, Creighton v. Reviczky, 171 Cal. App. 3d 1225, 1232 (1985), hyper-technical enforcement of statutory and constitutional provisions cannot be used to invalidate petitions than neither confuse or mislead the electors. Assembly v. Deukmejian, 30 Cal. 3d. 638, 652 (1982). "[S]ubstantial compliance means actual compliance in respect to the substance essential to every reasonable objective of the statute." Id. at 649 (quoting Stasher v. Harger-Haldeman, 58 Cal. 2d 23, 29 (1962)). The requirements of both the Constitution and the statute are intended to ensure that electors who are asked to sign the initiative petitions be provided the information they would reasonably require to make an informed choice as to whether to exercise their right to initiative. See California Teachers Association. v. Collins, 1 Cal. 2d 202, 204 (1934!
). In this instance, the title of the initiative and the summary of its main points and purpose remain accurate, and the electors signing the petitions were fully informed of what the initiative would do. Having that information, nearly a million registered California voters signed this initiative petition, exercising their fundamental and constitutionally-guaranteed initiative rights.
The voters of California have spoken: They want a public debate and an initiative election regarding California's absurdly gerrymandered legislative and Congressional districts. What's wrong with that? Why be afraid of an honest and vigorous debate about something as fundamental as the legitimacy of representative democracy in the most populous State in the Union? It is sad indeed that there are those who would prefer to deny California voters that debate and derail an election by relying upon misguided, trite legal arguments. The proponents have substantially complied with the law, the voters of California have called for an election, and the time has come to debate the issue of the sorry state of representative democracy in California. Let's get past hiding behind the Elections Code in order to stifle a critically important debate at this historic time of political and economic crisis in our State.Ó
James F. Sweeney
SWEENEY, DAVIDIAN & GREENE LLP
(Former Chief Counsel, California Secretary of State)
8001 Folsom Boulevard, Suite 101Sacramento, California 95826Telephone: (916) 388-5170Facsimile: (916) 388-0357
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