Thanks for your thoughts this morning. I am forwarding some comments in response to yours on the redistricting initiative controversy from Dan Kolkey..that I thought would be of interest.
Ò Citing a lengthy section from Ruiz v. Sylva (2002) 102Cal.App.4th 199, Rick Hasen suggests, "From what I know of the distinctions between the actual text and circulated text of the initiative, it appears, especially under precedents like Mervyn's, that the courts would well hold the initiative should be disqualified."
Hasen might have meant that they "could" hold, not "would" hold.But in fact, the case law is wholly against any court invalidating the redistricting initiative by virtue of stylistic and technical differences between the draft submitted to the Attorney General's Office for title and summary and the measure circulated and signed by the voters for the following reasons:
"Whether a failure to comply with requirements of the ElectionsCode in circulating initiative or referendum petitions is fatal dependsupon the nature and purpose of the statutory requirement. Technicaldefects of form may be excused if the petitions substantially complywith the requirement [citation], but actual compliance is required inrespect to the substance essential to the objective of the statute."(Ibarra v. City of Carson (1989) 214 Cal.App.3d 90, 99.) In this case,the only purpose of the submission to the Attorney General's Office wasthe preparation of the title and summary. Since the title and summarywas accurate for both versions of the initiative and was too general toeven implicate the stylistic, technical differences between them, theuse of the summary and title on the circulated initiative measureconstituted substantial compliance. In short, there is no reason not toput on the ballot an initiative measure that was in proper format withan accurate title and!
summary signed by over 900,000 voters.
Second, the only case that squarely addresses the use of a titleand summary, prepared for one version of an initiative, for a slightlydifferent version of the initiative, upheld the initiative measure wherethe title and summary accurately reflected the substance of theinitiative. (MHC Financing Limited Partnership Two v. City of Santee(2005) 125 Cal.App.4th 1372, 1388-90.) That is precisely the case here.
Third, the Mervyn's case cited by Hasen (Mervyn's v. Reyes(1998) 69 Cal.App.4th 93) is not on point. There, the court invalidatedan initiative petition because the petition DID NOT CONTAIN THE TEXT ofthe general policy plan of the city that it purported to enact (inviolation of Elections Code section 9201). The court found that it didnot substantially comply with section 9201 because "[t]he approximately17 pages of general plan sections omitted from the petition were the keyelement of the initiative." (Id. at p. 105.) In contrast, here, thefull text of the initiative was before the voters (and its stylisticdifferences from that submitted to the Attorney General's Office couldnot have possibly made any difference in their decision to sign thepetition).
Fourth, the other cases cited by Hasen are cases where "[t]hefailure to provide information or the communication of misinformationthreaten the proper operation and integrity of the election process."(Ruiz v. Sylva, supra, 102 Cal.App.4th 199, 213.) For instance, in SanFrancisco Forty-Niners v. Nishioka (1999) 75 Cal.App.4th 637, the threeproponents of the disqualified initiative "d[id] not contest and therebyvirtually concede[d] their initiative petition contained falsestatements." (Id. at p. 645.) The Court of Appeal observed that"[n]umerous decisions have supported the invalidation of initiativemeasures for Elections Code violations resulting in voter confusion ormisinformation." (Id. at p. 644.) But there is no confusion here: thetitle and summary was impartial and accurate, and the voters saw thetext of the initiative that they were signing.
Likewise, Clark v. Jordan (1936) 7 Cal.2d 248 found nosubstantial compliance when the short title did not reveal that theinitiative measure would affect taxes. In Hebard v. Bybee (1998) 65Cal.App.4th 1331, there was no substantial compliance where the title ofthe ordinance in a referendum petition was inaccurate. In Ibarra v.City of Carson, supra, 214 Cal.App.3d 90, the court would not forgivethe proponents' failure to post notice of the intention to circulate theinitiative petition and of the title and summary because thatconstituted a failure to educate the public about the petition campaignbefore it began, as required by statute.
But here, there is no reason to not place the initiative measureon the ballot: It is in the proper format with an accurate title andsummary. No voter was misled. If stylistic differences with anuncirculated version of the initiative can invalidate a certifiedinitiative measure with an accurate title and summary signed by over900,000 voters, then the initiative process is at the mercy of everyimmaterial clerical error, typographical error, or immaterial printingdeletion found in a circulating petition. No court has so held; indeed,the cases all support upholding the initiative.Ó
Daniel M. KolkeyGibson, Dunn & Crutcher LLPOne Montgomery StreetSan Francisco, California 94104-4505Direct Dial: (415) 393-8240Facsimile: (415) 374-8452Email: dkolkey@gibsondunn.com
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